Public-school districts across the country claim to foster “inclusiveness” and “open-mindedness,” but many are far too comfortable exhibiting open hostility to traditional religious beliefs — at least when it comes to Christianity.
This was made alarmingly clear when the California School Boards Association — composed of nearly 1,000 educational agencies in California — came to the defense of a San Jose area school district that is trying to run off a Christian student organization, with teachers encouraging protests against it and one even leading a satanist group founded specifically to “openly mock” it.
The Fellowship of Christian Athletes is an interdenominational Christian sports ministry that exists in thousands of schools across the country. While membership is open to anyone, FCA requires its leader to affirm and abide by its statement of faith, which includes a commitment to traditional beliefs about sex and marriage.
Several high-school teachers in the San Jose United School District believed that FCA’s religious-pledge requirement violated the District’s non-discrimination policy, and they were able to persuade their principal, and ultimately the District, to derecognize FCA. This, even though no student unwilling to affirm FCA’s Statement of Faith has ever sought to hold a leadership role.
So FCA sued the District in federal court, asking to have its official status reinstated, and a three-judge panel in the Ninth Circuit recently did just that, finding that the District’s selective enforcement violated the First Amendment and reversing the district court’s decision that denied FCA’s request for a preliminary injunction.
I supported that request, along with 18 of my state attorney general colleagues, in an amicus brief filed this summer, urging the court to reinstate FCA’s status because the District’s actions clearly violated the First Amendment.
We outlined how the District and the faculty were overtly hostile toward FCA’s religious beliefs: After learning of FCA’s religious-pledge requirement, one teacher called FCA’s beliefs “bulls***” and said it should be treated the same as the Ku Klux Klan. Another described Christians as “charlatans” who perpetuate “darkness” and “ignorance.” She also served as the faculty advisor for the Satanic Temple Club, which was formed to protest and “openly mock” FCA students. These same teachers encouraged other students to protest FCA events and to publicly ostracize FCA’s student members.
For public schools entrusted with safeguarding our students and modeling appropriate behavior, this was a shocking dereliction of duty. Not only that, but the District also stridently refuses to admit its mistakes, claiming that its process “worked the way it’s supposed to work.”
More importantly in the legal context, this clear animosity requires the courts to view the district’s decision to strip FCA of its ASB-approval under strict scrutiny.
And the court explained that many other student groups and programs in the District — such as Big Sister/Little Sister club, the South Asian Heritage club, the Latino Male Mentoring Group — excluded students from membership and leadership roles on the basis of sex or race. So these groups also violated the District’s non-discrimination policy, but the District, in its discretion, authorized each of these groups. The District, however, did not exercise its discretion in FCA’s favor. In fact, FCA was the first and only student group to be stripped of its recognition by the District. The signal was obvious: It’s okay to discriminate against Christians based on their religious beliefs.
The District, of course, disagreed with the panel’s decision and filed petition for rehearing with the full Ninth Circuit, and the CSBA filed an amicus brief in support. Both the District and the CSBA fault the panel for relying on a single comparator to find that the District selectively enforced its policy, but the panel demonstrated that several other groups limited membership on the basis of gender or race and still retained District recognition. Even if they were right that the panel relied on a single comparator, it doesn’t matter. After Fulton v. City of Philadelphia, comparators are unnecessary — any “law burdening religious exercise must satisfy strict scrutiny if it gives government officials discretion to grant individualized exemptions.”
Both the District and the CSBA argue that the Ninth Circuit panel departed from prior precedent because there is insufficient evidence to show that the District intentionally targeted FCA. But Professor Michael McConnell, a former judge on the Tenth Circuit and current professor at Stanford Law School, explains that this argument misunderstands the current state of the law.
After a host of recent Supreme Court cases addressing governments’ selective enforcement of otherwise generally applicable rules — including Fulton, Tandon v. Newsom, Roman Catholic Diocese of Brooklyn v. Cuomo, and others — this much is clear: When government officials, such as those in the District, exempt secular groups from a generally applicable rule, but not religious groups, that policy discriminates against religion in violation of the First Amendment, even if that wasn’t the policy’s purpose or the policymaker’s intent.
While it may be tempting to write this off as “just another day in California,” public-school administrators with anti-Christian leanings are not unique to the West Coast. In my state of Montana, a school district attempted to disband an FCA chapter over similar complaints in 2019. Fortunately, school officials came to their senses before litigation was necessary. But if the Ninth Circuit revisits and ultimately reverses this decision, it would bless discrimination against religious student groups in Montana and across the Ninth Circuit’s western states.