Ninth Circuit affirms religious freedom in California student group case

Written by William C. Duncan

October 11, 2023

​A recent federal legal decision from California regarding student groups highlights two important realities: (1) A sound understanding of religious freedom may be taking hold across the federal judicial system, and (2) the only way our society can genuinely protect and promote pluralism is if institutions outside of the courts embrace the principles required to do so.

First, some historical background.

In 1980, the U.S. Court of Appeals for the Eighth Circuit decided a challenge to a University of Missouri-Kansas City policy. The policy in question allowed student groups to use the campus for events, but it specifically excluded a group called Cornerstone because the university had enacted a policy that religious events could not be held on campus – not even a Bible study on the lawn.

The Court of Appeals held this policy was unconstitutional. It noted that the university’s justification for its policy – “develop[ing] students’ ‘social and cultural awareness’” – actually cut against the exclusion of religious student groups, since it prevented student exposure to “religious ideas and practices” amid the variety of concepts they were seeing from other – secular – groups.

The U.S. Supreme Court affirmed this decision 8-1 the next year. This, in turn, led Congress to overwhelmingly enact (88-11 in the Senate and 337-77 in the House) the Equal Access Act in 1984, which extended the equal protection of religious student groups (if schools allow noncurricular student groups, they cannot exclude religious student groups) to high schools.

These provisions recognize that schools have an important role in cultivating students’ ability to peacefully navigate and build a civilized society marked by pluralism.

That is why the facts of the recent court decision from the Ninth Circuit noted in the opening involving these principles are so unsettling. What are students being taught about tolerating differences?

The case involves a school district in California that had a chapter of the Fellowship of Christian Athletes (FCA) on some of its campuses from the early 2000s. In 2019, a teacher at one of the high schools in the district learned that FCA required its leaders to affirm a statement of faith including: (1) affirmation of Christianity, and (2) a commitment to marriage and sexuality consistent with traditional biblical teachings.

The teacher posted this policy in his classroom with a note: “I am deeply saddened that a club on Pioneer’s campus asks its members to affirm these statements. How do you feel?” He worked to get a response from the administration, including by sending a colorful note to the principal which included:

In so many ways, I feel that there’s only one thing to say that will protect our students who are so victimized by religious views that discriminate against them: I am an adult on your campus, and these views are [expletive deleted] to me. They have no validity. It’s not a choice, and it’s not a sin. I’m not willing to be the enabler for this kind of “religious freedom” anymore.

As noted by the Ninth Circuit:

While [the teacher] did express some concern that “great students” in FCA could be “collateral damage,” and he did not “want people to feel attacked for their views,” he explained that “part of me thinks that attacking these views is the only way to make a better campus.”

The district denied FCA recognition as a student group. It also enacted a policy that student groups had to accept any leader without requirements such as affirming the beliefs or goals of the organization – at least to a point, because the policy allowed exceptions for some groups, like women’s organizations.

Though denied recognition, student participants could still meet with one another. This created more controversy. For example, from the court opinion:

Although FCA was no longer an [Associated Student Body]-recognized group, some teachers expressed concern that FCA was still able to remain on campus as a student interest group. For example, in an email to two other teachers, Jason Goldman-Hall, the faculty advisor for The Pony Express [the school newspaper], referred to a student reporter who “fe[lt] bad for FCA” as an “idiot” who was “dragging her feet” for not immediately interviewing other teachers involved with the Gender and Sexuality Alliance (GSA) student club. Danni McConnell, a history teacher and faculty advisor for the GSA student club, stated in a Pony Express article that “[i]t’s unfortunate that there is an organization on campus that subscribes to a national organization that has these beliefs.” McConnell called it “a hurtful message and problem” and urged students to “rally[] against the issue.”

Perhaps not surprisingly, when FCA students gathered, they met with some hostility:

At an FCA meeting in November 2019, two student reporters from The Pony Express attended to take photos. According to one teacher who observed, the photographers took “well over 300 photos,” often within five feet of the person’s face they were photographing. And each time a new student at the meeting spoke, the photographers would go over and take 25 photos in close proximity. In an email from a teacher alerting Principal Herb Espiritu to this activity, the teacher characterized it as “intimidating,” “flat out bullying,” and stated that “[i]t did not feel like a safe environment.” The teacher noted that he had “never seen a club, sports team, or class so targeted.”

A lawsuit followed, and in September an en banc panel of the U.S. Court of Appeals for the Ninth Circuit ruled in favor of FCA, explaining that a government entity can’t single out religious organizations for unfavorable treatment under the free exercise clause.

Thus, FCA chapters are again allowed on campus. That is a positive result.

The Ninth Circuit has not necessarily been known for its sound reading of the free exercise clause of the First Amendment. However, religious freedom rulings coming out of the Supreme Court in recent years have clearly shown federal district and circuit judges the importance and seriousness of that aspect of religious freedom. From that perspective, the Ninth Circuit ruling in the FCA case may be evidence that the Supreme Court’s sound understanding of religious freedom may now be penetrating even to lower courts not generally aligned with it.

However, more than a legal decision is needed to build campus climates that equip students to productively engage with a pluralistic society. This includes teaching and developing students who can interact constructively and peacefully with fellow citizens despite differences in politics or religion. The Ninth Circuit decision shows how pluralism can be protected. The principles it enunciated now have to be embraced to be made effective.

Insights: analysis, research, and informed commentary from Sutherland experts. For elected officials and public policy professionals.

  • Supreme Court and congressional policies have promoted inclusion of student religious groups in public schools.
  • A recent Ninth Circuit case applied precedent from Supreme Court religious freedom cases to reject an attempt by a school district in California to exclude the Fellowship of Christian Athletes as a recognized student group.
  • The hostility shown toward the student group indicates there is much to be done outside of court to ensure that government institutions protect pluralism.
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