Update: On September 13, 2023, the Ninth Circuit again ruled—this time en banc—that the school district violated the First Amendment by selectively enforcing its nondiscrimination policy against FCA. Therefore, it again directed the district court to enter an order reinstating FCA’s recognition. As in the prior panel opinion, the dissent explains that the majority bent the facts in the record, ignored the standard of review, got the law under the First Amendment wrong, and erred in holding that the plaintiffs had standing.
Update: On August 29, 2022, a Ninth Circuit panel reversed the district court’s denial of FCA’s motion for a preliminary injunction and directed the district court to enter an order reinstating FCA Pioneer as a student club within the San Jose Unified School District. The majority concluded that the school district had “selectively” enforced its nondiscrimination policy against FCA, pointing to examples of non-religious clubs that it said also discriminated on the basis of protected characteristics, like gender. However, as the dissent makes clear, the majority opinion relied on a number of cherry-picked factual determinations that contradicted what the district court found and that were disputed in the record. The dissent also strongly disputes the majority’s conclusion that the plaintiffs have standing to receive a preliminary injunction, as there was no evidence that any student even intended to apply for recognition of FCA in the upcoming school year.
On July 25, 2022, the National Women’s Law Center, along with our law firm partner, Debevoise & Plimpton LLP, and 21 additional advocacy organizations, filed an amicus brief in Sinclair v. San José Unified School District Board of Education in support of the school district and its nondiscrimination policies that require official school clubs to be open to everyone.
In 2019, the San José Unified School District decided not to officially recognize a student chapter of the Fellowship of Christian Athletes (FCA) because the club conditioned students’ full participation on signing a sexual purity statement that discriminated against LGBTQ students in violation of the district’s nondiscrimination policies. FCA sued, demanding that the school district make an exception for the FCA chapter’s discriminatory membership and leadership criteria because the district also allows other forms of so-called “discrimination” in the context of allowing single-sex sports teams, student affinity organizations, and other groups with certain criteria for participation. The lower court correctly ruled in favor of the school and its nondiscrimination policies and denied FCA’s request for a preliminary injunction. Now FCA is appealing, and our amicus brief urges the Ninth Circuit to affirm the lower court’s decision.
NWLC’s amicus brief explains that single-sex sports teams and open-membership clubs and programs geared towards particular communities are not “exceptions” to the district’s nondiscrimination policies and are allowed by existing civil rights laws, which both protect against discrimination and promote inclusion. FCA’s attempt to argue that the district’s nondiscrimination policies do not allow for any consideration of demographic factors in any aspect of a school’s operations would create absurd results and conflict with federal and state laws.
To learn more, check out our blog postabout the case.