fellowship of christian athletes v. san jose usd

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FELLOWSHIP OF CHRISTIAN

ATHLETES, an Oklahoma

corporation; FELLOWSHIP OF

CHRISTIAN ATHLETES OF

PIONEER HIGH SCHOOL, an

unincorporated association;

CHARLOTTE KLARKE;

ELIZABETH SINCLAIR,

Plaintiffs-Appellants,

SAN JOSE UNIFIED SCHOOL

DISTRICT BOARD OF

EDUCATION; NANCY

ALBARRAN, in her official and

personal capacity; HERB ESPIRITU,

in his official and personal capacity;

PETER GLASSER, in his official and

personal capacity; STEPHEN

MCMAHON, in his official and

personal capacity,

Defendants-Appellees.

No. 22-15827

D.C. No.

4:20-cv-02798-

HSG

OPINION

2 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted En Banc March 23, 2023

Pasadena, California

Filed September 13, 2023

Before: Mary H. Murguia, Chief Judge, and Consuelo M.

Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Mark J.

Bennett, Eric D. Miller, Bridget S. Bade, Daniel A. Bress,

Danielle J. Forrest, Patrick J. Bumatay and Jennifer Sung,

Circuit Judges.

Opinion by Judge Callahan;

Concurrence by Judge Forrest;

Partial Concurrence and Partial Dissent by Judge M. Smith;

Partial Concurrence and Partial Dissent by Judge Sung;

Dissent by Chief Judge Murguia

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 3

SUMMARY

First Amendment/Free Exercise Clause

The en banc court reversed the district court’s denial of

a motion for a preliminary injunction in an action brought by

the Fellowship of Christian Athletes (FCA) and others

against the San Jose Unified School District (the District) for

violation of FCA’s First Amendment rights to free exercise

of religion and free speech, and directed the district court to

enter an order reinstating FCA’s recognition as an official

Associated Student Body (ASB) approved student club.

FCA requires its student leaders to affirm a Statement of

Faith, which includes the belief that sexual relations should

be within the confines of a marriage between a man and a

woman. The San Jose Unified School District revoked

FCA’s status as an official student club for violation of the

District’s non-discrimination policies.

The en banc court held that the District’s Pioneer High

School FCA had representational organizational standing

and its claims for prospective injunctive relief were not

moot, given that at least one student intended to apply for

ASB recognition in the coming school year but had been

discouraged by the District’s policies. FCA National had

organizational standing and its claims were not moot

because the District’s actions frustrated FCA National’s

mission and required it to divert organizational resources,

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

which it would continue to do in order to challenge the

District’s policies.

The en banc court next held that the district court erred

in applying a heightened standard applicable to mandatory

injunctions. Because FCA’s motion for a preliminary

injunction sought to maintain the status quo under which it

had been granted ASB recognition for nearly 20 years, the

relief sought was properly characterized as a prohibitory

injunction.

Addressing the merits of FCA’s First Amendment’s Free

Exercise Clause claim, the en banc court stated that to avoid

strict scrutiny, laws that burden religious exercise must be

both neutral and generally applicable. A purportedly neutral

“generally applicable” policy (1) may not have a mechanism

for individualized exemptions; (2) may not treat comparable

secular activity more favorably than religious exercise; and

(3) must not be hostile to religious beliefs.

The en banc court held that the District’s

nondiscrimination policies, including its more recently

enacted “All Comers Policy,” which prohibits all ASB clubs

from enacting discriminatory membership and leadership

criteria, were not generally applicable, and therefore subject

to strict scrutiny. The District (1) retained discretion to grant

individualized exemptions and did so in a viewpoint-

discriminatory manner, (2) treated comparable secular

activity more favorably than religious exercise, and (3)

penalized FCA based on its religious beliefs.

To pass strict scrutiny, the District’s policies must be

narrowly tailored to advance a compelling government

interest. Because the District failed to offer any showing that

it considered less restrictive measures, it fails the tailoring

prong of the strict scrutiny test. Accordingly, the en banc

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 5

court held that FCA and the other plaintiffs demonstrated a

likelihood of success on the merits of their Free Exercise

claims. The remaining preliminary injunction factors also

supported granting the requested injunctive relief.

Concurring, Judge Forrest agreed that FCA was entitled

to a preliminary injunction but wrote separately because she

viewed this case as raising more of a free speech rather than

a religious-freedom issue and therefore would resolve the

case under the Equal Access Act and the Free Speech Clause

of the First Amendment. Judge Forrest would not address

direct organizational standing because FCA’s chapter at

Pioneer High School had standing to represent its members

in this action.

Concurring in part and dissenting in part, Judge M.

Smith, with whom Chief Judge Murguia and Jung Sung join

with respect to Part II, agreed that the plaintiffs were entitled

to a preliminary injunction because the District treated

religious activities differently than secular ones, but wrote

separately because the majority opinion swept well beyond

what was needed to resolve this case. Judge M. Smith

dissented as to the majority’s holding in a footnote that

plaintiffs would be likely to succeed on a facial challenge to

the District’s All-Comers Policy under the Free Speech

Clause.

Concurring in part and dissenting in part, Judge Sung

agreed with the majority that Pioneer FCA has

representational standing but stated that FCA National did

not have direct organizational standing to pursue prospective

injunctive relief for the reasons stated by Chief Judge

Murguia in her dissent. On the merits, Judge Sung

concluded that the district court did not abuse its discretion

in refusing to enjoin the District from uniformly applying its

6 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

nondiscrimination policy to student groups in the then-

upcoming school year, for the reasons stated by Chief Judge

Murguia in her dissent.

Dissenting, Chief Judge Murguia with whom Judge

Sung joined with respect to Parts I, II.B, II.C.2, III.A, III.B,

and IV (except for the last sentence), would dismiss this

appeal because plaintiffs failed to make the necessary “clear

showing” of Article III standing for prospective injunctive

relief. Plaintiffs failed to establish that any District student

sought ASB recognition for an FCA club for the 2021-22

school year or intended to apply for ASB recognition during

the then-upcoming 2022–23 school year or would do so if

the District’s non-discrimination policies were

enjoined. Briefly addressing the merits, Chief Judge

Murguia stated that (1) the District’s All-Comers Policy did

not formally provide the District with discretion to grant

exceptions; (2) the record did not support a finding that the

District selectively enforced its Policy only against FCA;

and (3) the majority made both legal and factual errors in

finding that the Policy was not neutral.

COUNSEL

Daniel H. Blomberg (argued), Eric S. Baxter, Nicholas R.

Reaves, Abigail E. Smith, James J. Kim, Becket Fund for

Religious Liberty, Washington, D.C.; Kimberlee W. Colby,

Christian Legal Society, Center for Law & Religious

Freedom, Fairfax, Virginia; Christopher J. Schweickert,

Seto Wood & Schweickert LLP, Pleasant Hill, California;

for Plaintiffs-Appellants.

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 7

Stacey M. Leyton (argued) and Stephen Berzon, Altshuler

Berzon LLP, San Francisco, California; Richard B. Katskee

and Kenneth D. Upton Jr., Americans United for Separation

of Church and State, Washington, D.C.; Amy R. Levine and

William Tunick, Dannis Woliver Kelley, San Francisco,

California; Andrea A. Brott, Law Offices of Andrea A.

Brott, Berkeley, California; for Defendants-Appellees.

Christopher E. Mills, Spero Law LLC, Mount Pleasant,

South Carolina, for Amici Curiae Campus Crusade for

Christ Inc., InterVarsity Christian Fellowship/USA, Young

Life, Ratio Christi, and The Navigators.

Bradley J. Lingo, J. Alex Touchet, Robertson Center for

Constitutional Law, Regent University School of Law,

Virginia Beach, Virginia; Michael G. Schietzelt Jr., Wake

Forest, North Carolina; for Amicus Curiae Robertson Center

for Constitutional Law.

Peter M. Torstensen Jr., Assistant Solicitor General; David

M.S. DeWhirst and Christian B. Corrigan, Solicitors

General; Austin Knudsen, Attorney General of Montana;

Montana Department of Justice, Helena, Montana; Kathleen

L. Smithgall, Associate Solicitor, Consovoy McCarthy

PLLC, Arlington, Virginia; for Amicus Curiae State of

Montana and 22 Other States.

Eduardo E. Santacana, Willkie Farr & Gallagher LLP, San

Francisco, California; Kathryn Joseph, Director of Policy &

Advocacy, Interfaith Alliance Foundation, Washington,

D.C.; for Amicus Curiae Interfaith Alliance Foundation.

Cynthia F. Crawford and Casey Mattox, Americans for

Prosperity Foundation, Arlington, Virginia, for Amicus

Curiae Americans for Prosperity Foundation and Professor

Luke C. Sheahan.

8 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

Howard Slugh, Jewish Coalition for Religious Liberty,

Washington, D.C., for Amicus Curiae Jewish Coalition for

Religious Liberty.

Kelly J. Shackleford, Jeffrey C. Mateer, David J. Hacker,

Jeremiah G. Dys, Ryan N. Gardner, and Keisha T. Russell,

First Liberty Institute, Plano, Texas; Kayla A. Toney, First

Liberty Institute, Washington, D.C.; for Amici Curiae D.B.,

Hannah Thompson, and Jacob Estell.

Anthony J. Dick, Harry S. Graver, and Ryan M. Proctor,

Jones Day, Washington, D.C., for Amicus Curiae Professor

Michael W. McConnell.

Ronald G. London, Foundation for Individual Rights and

Expression, Washington, D.C.; Abigail E. Smith,

Foundation for Individual Rights and Expression,

Philadelphia, Pennsylvania; for Amicus Curiae Foundation

for Individual Rights and Expression.

Joseph R. Rose, Gibson Dunn & Crutcher LLP, San

Francisco, California; Jun Nam, Gibson Dunn & Crutcher

LLP, Palo Alto, California; Blaine H. Evanson, Gibson

Dunn & Crutcher LLP, Irvine, California; for Amici Curiae

Cardinal Newman Society and Christian Medical & Dental

Associations.

Emily Martin, Sunu Chandy, Phoebe Wolfe, Auden Perino,

and Hunter Iannucci, National Women’s Law Center,

Washington, D.C.; Courtney M. Dankworth, Harold W.

Williford, Joshua N. Cohen, and Isabelle M. Canaan,

Debevoise & Plimpton LLP, New York, New York; for

Amici Curiae National Women’s Law Center and Twenty-

One Additional Organizations.

Mark Bresee, Alyssa Ruiz de Esparza, Juliana Duran,

Atkinson Andelson Loya Ruud & Romo, La Jolla,

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 9

California; Keith Bray, Kristin Lindgren, and Dana Scott,

California School Boards Association, West Sacramento,

California; for Amicus Curiae California School Boards

Association and its Education Legal Alliance.

John J. Bursch and J. Caleb Dalton, Alliance Defending

Freedom, Washington, D.C.; David A. Cortman, Alliance

Defending Freedom, Lawrenceville, Georgia; Tyson C.

Langhofer, Alliance Defending Freedom, Lansdowne,

Virginia; for Amici Curiae Ratio Christi and Chi Alpha.

OPINION

CALLAHAN, Circuit Judge:

Anti-discrimination laws undeniably serve valuable

interests rooted in equality, justice, and fairness. And in a

pluralistic society, these laws foster worthy goals such as

inclusion and belonging. The Constitution also protects the

right for minorities and majorities alike to hold certain views

and to associate with people who share their same values.

Often, anti-discrimination laws and the protections of the

Constitution work in tandem to protect minority views in the

face of dominant public opinions. However, this appeal

presents a situation in which the two regrettably clash.

The Fellowship of Christian Athletes (FCA or FCA

National), as its name suggests, is a ministry group formed

for student athletes to engage in various activities through

their shared Christian faith. FCA holds certain core religious

beliefs, including a belief that sexual intimacy is designed

only to be expressed within the confines of a marriage

between one man and one woman. In order for FCA to

10 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

express these beliefs, it requires students serving in a

leadership capacity to affirm a Statement of Faith and to

abide by a sexual purity policy. Because of these religious

beliefs, however, the San Jose Unified School District

(District) revoked FCA’s status as an official student club on

multiple campuses for violation of the District’s non-

discrimination policies.

While it cannot be overstated that anti-discrimination

policies certainly serve worthy causes—particularly within

the context of a school setting where students are often

finding themselves—those policies may not themselves be

utilized in a manner that transgresses or supersedes the

government’s constitutional commitment to be steadfastly

neutral to religion. Under the First Amendment’s protection

of free exercise of religion and free speech, the government

may not “single out” religious groups “for special disfavor”

compared to similar secular groups. Kennedy v. Bremerton

Sch. Dist., 142 S. Ct. 2407, 2416 (2022).

The District, rather than treating FCA like comparable

secular student groups whose membership was limited based

on criteria including sex, race, ethnicity, and gender identity,

penalized it based on its religious beliefs. Because the

Constitution prohibits such a double standard—even in the

absence of any motive to do so—we reverse the district

court’s denial of FCA’s motion for a preliminary injunction.

Founded in 1954, FCA is an international Christian

religious ministry organization with more than 7,000 student

chapters (also known as “huddles”) in middle schools, high

schools, and colleges across the United States. FCA seeks

to equip “student athletes from all backgrounds for

fellowship, spiritual growth, and service on their campuses.”

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 11

FCA’s “vision [is] ‘to see the world transformed by Jesus

Christ through the influence of coaches and athletes,’ and its

mission [is] ‘to lead every coach and athlete into a growing

relationship with Jesus Christ and His church.’” To further

these goals, FCA clubs regularly meet to host religious

discussions, service projects, prayer times, worship, and

Bible studies.

FCA “welcome[s] all students to participate in the[se]

events.” FCA “also welcome[s] all students to join [its

ranks] as members.” However, FCA requires its student

leaders to affirm certain core religious beliefs identified in

FCA’s Statement of Faith. Included in these core tenets of

FCA’s Statement of Faith is the belief in the authority of the

Bible, the virgin birth, the death and resurrection of Jesus,

the ministry of the Holy Spirit, and God’s design for

marriage. In particular, one portion of the Statement of Faith

calls upon student leaders to affirm a belief that sexual

intimacy may only be enjoyed within the context of

marriage, and more specifically, between one man and one

woman:

We believe God’s design for sexual intimacy

is to be expressed only within the context of

marriage, that God created man and woman

to complement and complete each other. God

instituted marriage between one man and one

woman as the foundation of the family and

the basic structure of human society. For this

reason, we believe that marriage is

exclusively the union of one man and one

woman.

12 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

As part of FCA’s Christian Character and Mission,

student leaders must also conform to FCA’s Sexual Purity

Statement. The Sexual Purity Statement reads:

God desires His children to lead pure lives of

holiness. The Bible teaches that the

appropriate place for sexual expression is in

the context of a marriage relationship. The

biblical description of marriage is one man

and one woman in a lifelong commitment.

While upholding God’s standard of holiness,

FCA strongly affirms God’s love and

redemptive power in the individual who

chooses to follow Him. FCA’s desire is to

encourage individuals to trust in Jesus and

turn away from any impure lifestyle.

FCA asks its student leaders to embrace and affirm these

beliefs because it “helps [FCA] keep Jesus Christ the center

of [its] ministry with a clear understanding of what [FCA]

believe[s].” According to FCA, student leaders’ adherence

to this “higher standard of biblical lifestyle and conduct” is

“vitally important to the credibility and effectiveness of each

FCA chapter’s ministry.” FCA contends that if its student

leaders acted contrary to these beliefs, it “would compromise

the integrity of the group and the leaders, undercut the

group’s mission and message, and harm [FCA’s] ability to

express [its] Christian beliefs.”

FCA leadership positions are open to all students as long

as the student “sincerely affirm[s] FCA’s Statement of Faith

and its standards of conduct.”

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 13

In the District, student-run organizations can apply for

recognition as part of the District’s Associated Student Body

(ASB) program. The purpose of the ASB “program is to

give students practice in self-governance, [to] provide social

and recreational activities, to honor outstanding student

achievement, [and] to enhance school spirit and student

sense of belonging.” The District also views the ASB

program as “an appropriate venue for students to learn how

to be leaders; how to engage with some of the democratic

principles that align with their own personal interests; how

to be members of a community; [and] how to be welcoming

and inclusive.” The District recognizes ASB clubs founded

on a wide variety of common viewpoints. Some examples

of the many ASB-recognized clubs in the District include:

Bachelor Nation, Chess Club, Communism Club, Girls Who

Code, Harry Potter Club, K-Pop Club, Mock Trial, and Ping

Pong Club.

Each year, student organizations must submit

applications for ASB approval, which the District and school

officials ultimately grant or deny. Student organizations

seek ASB recognition for the many benefits that it confers

upon the club. For instance, ASB-recognized clubs enjoy

important recruiting tools such as inclusion in the official

club list and the student yearbook, access to ASB financial

accounts and ASB-sanctioned fundraisers, an official

campus faculty advisor, and priority access to meeting

spaces on campus.

Since the early 2000s, FCA chapters enjoyed ASB

recognition in three District high schools, including Pioneer

High School (Pioneer). From that time until the events

giving rise to this lawsuit in 2019, no student ever

14 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

complained to the District that he or she wanted to hold a

leadership position in an FCA chapter but was ineligible

because of FCA’s religious requirements. And until the

controversy arose in 2019, there is no evidence any student

in the District ever complained that he or she felt excluded

by FCA’s religious beliefs. In sum, FCA chapters enjoyed

controversy-free ASB recognition in the District for nearly

two decades.

In April 2019, a teacher at Pioneer, Peter Glasser,

obtained copies of FCA’s Statement of Faith and Sexual

Purity Statement from students in the school. Glasser

viewed these statements to contain “objectionable” “moral

stances” on marriage and sexuality. Glasser felt he “had to

react right away” to these viewpoints “because any delay in

[his] response could have been interpreted as agreement, or

even worse, apathy.” So, before his first period class,

Glasser posted the FCA statements on his whiteboard 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?”

According to Glasser, he did not realize that two FCA

officers were present in his first period class. Those students

felt “insulted” and deeply hurt that Glasser did not speak

with them privately before broadcasting his message on the

board to the class. During a break between classes, an FCA

officer approached Glasser to inform him that his note was

incorrect, and that only officers––not members––were

required to “sign that pledge.” And the next day, another

FCA officer told him that the statement was inaccurate and

did not reflect the version used by the local FCA chapter.

Based at least in part on these interactions, FCA officers

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 15

asked for Glasser to include their faculty advisor in future

conversation with him.

In addition to his whiteboard note, Glasser sent an email–

–attaching FCA’s Statement of Faith and Sexual Purity

Statement––to Pioneer Principal Herb Espiritu and two other

faculty members. Glasser asked if they “were aware of the

pledge that . . . [FCA] requires of its members” and noted

one of his students was “very upset about the anti-gay

prerequisites for membership/officership.” Principal

Espiritu responded that he was “not aware of this pledge”

and that he would “discuss this with the admin team and

follow up with the club leadership as necessary.”

A week after he sent his initial email, Glasser sent a

follow up email to Principal Espiritu on April 29, 2019. By

this point, the controversy surrounding FCA had grown, and

as Glasser put it in his email: “we move right to the question

of whether [FCA’s] views need to be barred from a public

high school campus.” While he initially stated he was

“ambivalent” on that question, Glasser concluded that based

on the need to express support “for all LGBTQ+ kids and

their friends and allies” on campus, it was necessary to

discuss the issue “head on.” Below are some of Glasser’s

thoughts on FCA’s views:

We’ve discussed before how I believe that

our campus needs to grow dramatically in our

treatment of gender identity, and for me, this

FCA issue is the straw (lead pipe, really) that

broke the camel’s back. 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

16 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

these views are bullshit 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. LGBTQ+

kids, you deserve to have your dignity

defended by the adults around you.

While Glasser 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 following day, April 30, 2019, the Pioneer “Climate

Committee,” a school leadership committee composed of

several school department chairs (including Glasser) and

administrators, convened to discuss the controversy

surrounding FCA. As the meeting minutes reflect, Principal

Espiritu and the Climate Committee agreed that FCA’s

“pledge” clashed with the “core values of [Pioneer High

School] [such as] inclusive[ness] [and] open-mindedness.”

Principal Espiritu also noted the “need to take a united stance

as [a] committee.” After the meeting, Principal Espiritu

brought the Climate Committee’s concerns about FCA to the

District administrators’ attention.

Two days after the Climate Committee meeting, on May

2, 2019, Principal Espiritu informed the student leaders of

Pioneer FCA that the District had decided to strip the club of

its ASB approval. In a comment for a column posted in

Pioneer’s school newspaper, The Pony Express, Principal

Espiritu was quoted as stating: “The pledge is of a

discriminatory nature. We decided that we are no longer

going to be affiliated with them.” Principal Espiritu later

testified that he did not speak with any FCA representatives

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 17

to verify or confirm the specific prerequisites for FCA

leadership before stripping the club of recognition. Rather,

Principal Espiritu testified that it was “sufficient to deny

ASB approval” “simply because the sexual purity statement

existed” and that “FCA holds” those beliefs.

In essence, based on the documents provided to Glasser

and the discussion of the Climate Committee, the District

concluded that because “a student could not be an officer of

[FCA], if they were homosexual,” FCA had violated the

District’s “Non-Discrimination Policy.”

FCA’s derecognition marked the first time any club at

Pioneer had gained and then lost ASB approval without the

club itself choosing to revoke its application before

completion of the application process. According to

Pioneer’s ASB Activities Director, Michelle Mayhew, the

school administrators granted approval to all clubs that

applied. Once a student club gained ASB approval, it would

only undergo additional scrutiny if any issues were brought

to the attention of the administration. After FCA’s

derecognition, the District allowed Pioneer FCA to remain

on campus as an unaffiliated “student interest group” that did

not enjoy many of the benefits of the ASB program. FCA

was the only student group at Pioneer that fell into this

The Nondiscrimination In District Programs and Activities policy,

(Board Policy 0410) provides in relevant part:

District programs, . . . activities, and practices shall be

free from discrimination based on gender, gender

identity and expression, race, color, religion, ancestry,

national origin, immigration status, ethnic group,

pregnancy, marital or parental status, physical or

mental disability, sexual orientation or the perception

of one or more such characteristics.

18 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

category. Principal Espiritu testified that he allowed FCA to

meet on campus because of his obligations under the Equal

Access Act (EAA),

and that based on those obligations, he

would have done the same “[i]f they wanted to have a KKK

meeting.”

Although FCA was no longer an ASB-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, 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.”

The EAA prohibits public secondary schools that receive federal funds

and create a limited open public forum (which occurs when the school

grants official recognition to student-organized clubs) from denying any

student club equal access to that forum “on the basis of the religious,

political, philosophical, or other content of the speech at [a club’s]

meetings.” 20 U.S.C. § 4071(a)–(b); see also Bd. of Educ. of Westside

Cmty. Sch. v. Mergens, 496 U.S. 226, 235, 247 (1990).

According to the record, when Glasser helped found this club on

Pioneer’s campus in 2002, it was referred to as the Gay-Straight

Alliance.

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 19

In July 2019, Glasser sent Principal Espiritu an email

questioning whether they could “ban FCA completely from

campus,” and asking if the school could find that “FCA

violates [the District’s] sexual harassment policy” such that

it would not be shielded by any equal access laws. Before

the start of the new school year, Glasser sent Principal

Espiritu a follow up email noting he was “eager to get a

status update” on FCA and for the Climate Committee “to

talk about next steps” to “determine if [the District’s] sexual

harassment policy could be used.”

For the 2019–2020 school year, FCA applied for but was

denied ASB recognition. However, another club––the

Satanic Temple Club––was formed and was granted ASB

approval. The Satanic Temple Club’s leadership (including

one student who initially brought FCA’s Statement of Faith

to Glasser’s attention) asked Glasser to serve as the club’s

faculty advisor. Glasser declined, noting he viewed it as

intending to “mock” FCA, and that he wanted to avoid

“compromis[ing] [his] credibility” surrounding FCA.

However, another faculty member and member of the

Climate Committee, Michelle Bowman, agreed to serve as

its faculty advisor. Bowman, when later emailed by one of

her former students about the Satanic Temple Club and its

role in the controversy surrounding FCA, encouraged the

former student to speak and responded:

Out of context, your club sounds fierce, but

we know it’s not. [FCA] still exists on

campus. It has not been denied recruitment.

It’s published on the Pioneer website. The

lawsuit comes from their national

organization. We live in polarized times.

20 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

Even with the Biden win, millions of people

voted for the real devil. And, evangelicals,

like FCA are charlatans and not in the least

bit Christian based or they “conveniently”

forget what tolerance means. Talk about

twisting the truth . . . and the sad thing is that

they probably believe they are victims.

Bowman concluded her response by saying: “Get your voice

out there. Slander is unacceptable. They choose darkness

over knowledge and they perpetuate ignorance.”

In September 2019, some Pioneer students expressed an

interest in protesting FCA in an organized fashion and

distributed flyers

announcing the protest. After a few weeks

of some discussion of mediation, attempts to find

alternatives, and efforts by school officials to discourage the

protestors, the students ultimately came to the conclusion

that the protest was necessary to “express [their]

dissatisfaction” with the “discriminatory message

indoctrinated in an educational environment that’s supposed

The flyers stated:

Did you Know?

Every leader of the Fellowship of Christian Athletes

has to agree that same-sex marriage and homosexual

sex are morally wrong.

Disagree with this?

Join the protest!

Wednesdays at lunch outside room 360

Signs will be provided. The aim of this protest is not

to alienate any member of the FCA or create hostility

but rather to educate the school about the regional

organization’s polices.

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 21

to be a safe space for everyone.” On October 23, 2019,

students gathered outside an FCA meeting in protest,

holding signs with slogans such as “HATRED ISN’T A

RELIGIOUS BELIEF.” These protests were reported in The

Pony Express and photos of the protestors were posted on

the newspaper’s Instagram account.

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 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.”

At an FCA meeting in December 2019, a group of 15 to

25 students participated in a protest organized by the GSA

club. Due to the potential for unrest, there was at least one

security officer present, and some protestors were apparently

barred entry to the auditorium. According to one teacher

who attended, Channel Sulc, it was not true that students

were barred for being hostile; however, students held signs

for the duration of the meeting. In her comments to The

Pony Express, Sulc stated that, according to the protestors,

there was a greater need to “create a safer and more

accepting community for all,” which required that “FCA not

hold events on campus” or that FCA “reassess” its core

beliefs.

22 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

At an FCA event in February 2020, one protestor

associated with the “student newspaper, entered and was

disruptive.” According to the paper’s faculty advisor,

Goldman-Hall, the student reporter was caught on video

“verbally abusing” FCA members. In his email to Principal

Espiritu, Goldman-Hall noted that the newspaper had

“irreparably compromised” its objectivity on FCA and

would no longer cover FCA as a result.

According to one FCA officer, there were protests at

every “regular” FCA meeting and at “any [FCA] club

activity or event” during the 2019–2020 school year.

In spring 2020, the COVID-19 pandemic halted all

student club activity on campus, and club activity did not

reconvene in person until April 2021. For the 2020–2021

school year, Pioneer granted all clubs, including FCA,

provisional ASB approval.

In April 2020, two FCA student leaders at Pioneer,

Charlotte Klarke and Elizabeth Sinclair

and FCA National

filed suit against the District and several school officials

including Principal Espiritu and Glasser. After motion

practice, Klarke, Sinclair, FCA National, and the local

chapter at Pioneer (Pioneer FCA) (collectively, Plaintiffs)

filed their operative third amended complaint in July 2021.

Plaintiffs brought claims for relief for: (1) equal access to

extracurricular school clubs under the Equal Access Act

(EAA), 20 U.S.C. §§ 4071–4074; (2) Free Speech,

Klarke and Sinclair had first sued under their initials to avoid

harassment, but the district court ordered their names to be disclosed at

the District’s request, ruling that “harassment at their high school . . .

ended when [they] graduated in June 2020.”

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 23

Expressive Association, and Free Exercise of Religion under

the First Amendment; and (3) Equal Protection under the

Fourteenth Amendment. On July 30, 2021, Plaintiffs filed a

motion “for a preliminary injunction requiring Defendants to

restore recognition to student chapters affiliated” with

National FCA, including Pioneer FCA, “as official [ASB]

approved student clubs.” Defendants moved to dismiss in

part, arguing that all plaintiffs lack standing to pursue

injunctive relief. This motion to dismiss remains pending

before the district court.

In response to the ongoing litigation, the District adopted

a new version of its non-discrimination policy for the 2021–

2022 school year emphasizing the need for more training on

student club membership and leadership requirements. The

new non-discrimination requirements in the “All-Comers

Policy” were applicable to “all individuals in the District

programs and activities,” including “[a]ll ASB recognized

student groups,” and the ASB program, and the District. The

central feature of the new All-Comers Policy “require[d]

ASB recognized student groups to permit any student to

become a member or leader, if they meet non-discriminatory

criteria.” In order to gain or retain ASB approval, the student

club officers had to sign a statement affirming the club

would: “allow any currently enrolled student at the school to

participate in, become a member of, and seek or hold

leadership positions in the organization, regardless of his or

her status or beliefs.” According to the Student Organization

Guidelines (the guidelines), the new All-Comers Policy was

to “be implemented and construed in accordance with the all

comers policy considered by the Supreme Court” in

Christian Legal Society Chapter of the University of

24 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

California, Hastings College of Law v. Martinez

[(Martinez)], 561 U.S. 661 (2010).

While the All-Comers Policy prevented ASB clubs from

enacting discriminatory membership and leadership criteria,

the guidelines carved out several exceptions. According to

the guidelines, ASB clubs could “adopt non-discriminatory

criteria” for membership and leadership, “such as regular

attendance at group meetings, participation in group events,

participation in the group for a minimum period of time, or

participation in orientation or training activities.” Apart

from these examples, the guidelines do not define what

constitutes “non-discriminatory criteria.” Instead, school

officials rely on “common sense” and enforce the

requirements on a case-by-case basis.

Despite the All-Comers Policy, schools in the District

were allowed to maintain—or even themselves sponsor—

clubs with facially discriminatory membership

requirements. For example, the Senior Women club retained

approval even though it was open only to “seniors who

identify as female.” Likewise, the South Asian Heritage

club could “prioritize” acceptance of south Asian students.

Indeed, Michelle Mayhew, Pioneer’s Activities Director,

acknowledged that other groups could limit their

membership. For example, she agreed that “the Interact club

could continue to require that its members or its leaders

demonstrate good moral character or show leadership

ability.” She also suggested that the Republican student club

[could] become ASB approved even if it required “club

leaders . . . [to] support the Republican platform.” Similarly,

Mayhew also agreed the Girls’ Circle could “still limit their

membership to students who are female identifying.”

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 25

After implementation of the All-Comers Policy, no FCA

club applied for ASB recognition in the District for the

2021–2022 school year. According to FCA’s regional

director in the Bay Area, Rigoberto Lopez, student leaders

at Pioneer would have applied for ASB recognition but did

not because the All-Comers Policy would have in effect

prohibited FCA from “select[ing] leaders based on their

agreement with the club’s faith.”

The students were correct. In the District’s view, FCA’s

Statement of Faith violates the All-Comers Policy on two

grounds. First, the requirement that leaders “affirm a belief

in Christianity” improperly excluded students of other faiths

or non-religious students. Second, the requirement that

leaders “affirm that marriage is exclusively the union of one

man and one woman” improperly excluded “homosexual

students or those who affiliate with homosexual parents.”

Principal Espiritu testified that Pioneer FCA could not gain

ASB approval under the All-Comers Policy with its existing

leadership requirements.

II.

In June 2022, the district court denied the Plaintiffs’

motion for a preliminary injunction. The district court found

that Plaintiffs were requesting a “mandatory preliminary

injunction” and therefore applied a “heightened standard”

required for issuance. Applying that standard, the district

court concluded that Plaintiffs failed to show the “facts and

law clearly favor” their likelihood of success on the merits.

First, the district court held that the All-Comers Policy,

as written, was unlikely to violate Plaintiffs’ rights.

Applying a limited public forum analysis as set forth in

Martinez, the district court concluded that Plaintiffs were

unlikely to prevail on their free speech and expressive

26 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

association claims because the All-Comers Policy was

content- and viewpoint-neutral under existing Ninth Circuit

law. The district court similarly found that Plaintiffs were

unlikely to prevail on their Free Exercise claims because the

All-Comers Policy was generally applicable and only

incidentally burdened religion. In addition to Plaintiffs’

constitutional claims, the district court likewise found

Plaintiffs were unlikely to prevail on their EAA claim

because the All-Comers Policy was “content-neutral

because it does not preclude religious speech but rather

prohibits acts of discrimination.”

Second, the district court held that Plaintiffs were

unlikely to show the All-Comers Policy, as applied, violated

their rights. Specifically, the district court rejected

Plaintiffs’ argument that the All-Comers Policy contained a

formal mechanism to grant discretionary exceptions that ran

afoul of Fulton v. City of Philadelphia, 141 S. Ct. 1868

(2021). Lastly, the district court found that Plaintiffs failed

to show clear selective enforcement of any of the non-

discrimination policies.

Plaintiffs timely appealed the district court’s denial of

the motion for a preliminary injunction. A divided three-

judge panel reversed, directing the district court to enter a

preliminary injunction against the District ordering it to

recognize student groups affiliated with FCA. Fellowship of

Christian Athletes v. San Jose Unified Sch. Dist. Bd. of

Educ., 46 F.4th 1075, 1099 (9th Cir. 2022). Judge Lee, who

authored the majority opinion, also wrote separately “to

highlight the depth” of the District’s animus towards the

students’ religious beliefs. Id. at 1099–1100 (Lee, J.,

concurring). Judge Christen, dissenting, wrote that the

majority impermissibly reached the merits of the case

because Plaintiffs could not establish Article III standing and

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 27

the case should be dismissed for lack of jurisdiction. Id. at

1103 (Christen, J., dissenting).

After the District petitioned for rehearing en banc, a

majority of active judges voted to rehear the case.

Fellowship of Christian Athletes v. San Jose Unified Sch.

Dist. Bd. of Educ., 59 F.4th 997, 998 (9th Cir. 2023). The en

banc court heard argument on March 23, 2023. On April 3,

2023, a majority of the en banc court issued an injunction

pending resolution of the appeal, ordering Defendants-

Appellees in the interim to recognize student chapters

associated with FCA as officially ASB-approved. See

Fellowship of Christian Athletes v. San Jose Unified Sch.

Dist. Bd. of Educ., 64 F.4th 1024, 1025 (9th Cir. 2023).

We review the district court’s denial of a preliminary

injunction for an abuse of discretion. Olson v. California,

62 F.4th 1206, 1218 (9th Cir. 2023). A district court abuses

its discretion when it utilizes “an erroneous legal standard or

clearly erroneous finding of fact.” All. for the Wild Rockies

v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting

Lands Council v. McNair, 537 F.3d 981, 986 (9th Cir. 2008)

(en banc)). A factual finding is clearly erroneous if it is

“illogical, implausible, or without support in inferences that

may be drawn from the facts in the record.” M.R. v. Dreyfus,

697 F.3d 706, 725 (9th Cir. 2012) (quoting United States v.

Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)).

Applying these standards, we reverse.

III.

Although Defendants’ motion to dismiss in part for lack

of standing remains pending before the district court, we

have an independent obligation to consider standing at all

28 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

stages because it is an Article III jurisdictional requirement.

See United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir.

1997); see also Hernandez v. Campbell, 204 F.3d 861, 865

(9th Cir. 2000) (per curiam) (“Federal courts are always

under an independent obligation to examine their own

jurisdiction.” (cleaned up)). “[T]he standing inquiry . . . [is]

focused on whether the party invoking jurisdiction had the

requisite stake in the outcome when the suit was filed.”

Davis v. FEC, 554 U.S. 724, 734 (2008); see also Morongo

Band of Mission Indians v. Cal. State Bd. of Equalization,

858 F.2d 1376, 1380 (9th Cir. 1988).

Since the filing of this action, the two individual

plaintiffs in this action, Charlotte Klarke and Elizabeth

Sinclair, have graduated from Pioneer High School.

Accordingly, their claims for prospective injunctive relief

were previously dismissed as moot. Thus, we must

determine whether either Pioneer FCA or FCA National had

standing as of April 22, 2020, when the complaint was filed.

See Nat’l Ass’n of Optometrists & Opticians LensCrafters,

Inc. v. Brown, 567 F.3d 521, 523 (9th Cir. 2009) (“[I]n an

injunctive case this court need not address standing of each

plaintiff if it concludes that one plaintiff has standing.”).

“[T]he irreducible constitutional minimum of standing”

consists of three elements: (1) “plaintiff must have suffered

an injury in fact,” i.e., one that “is (a) concrete and

particularized and (b) actual or imminent, not conjectural or

hypothetical,” (2) the injury must “be fairly traceable to the

While we respect the views of our colleagues who have elected to write

separately, we do not feel the need to offer any specific responses to

those writings. The majority opinion faithfully applies precedent, and

while the separate writings may have differing views on that precedent,

those writings have no binding effect on this court.

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 29

challenged action of the defendant,” and (3) it must be

“likely” that the injury is redressable by a favorable decision.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)

(cleaned up).

To bring a claim for prospective injunctive relief, “[t]he

plaintiff must demonstrate that he has suffered or is

threatened with a concrete and particularized legal harm,

coupled with a sufficient likelihood that he will again be

wronged in a similar way.” Bates v. United Parcel Serv.,

Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc) (citations

and quotation marks omitted). “[P]laintiffs ‘may

demonstrate that an injury is likely to recur by showing that

the defendant had . . . a written policy, and that the injury

‘stems from’ that policy. Where the harm alleged is directly

traceable to a written policy[,] there is an implicit likelihood

of its repetition in the immediate future.’” Truth v. Kent Sch.

Dist., 542 F.3d 634, 642 (9th Cir. 2008) (quoting Fortyune

v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir.

2004)), overruled on other grounds by Los Angeles County

v. Humphries, 562 U.S. 29 (2010).

An organization has standing to bring suit on behalf of

its members if “(1) at least one of its members would have

standing to sue in his own right, (2) the interests the suit

seeks to vindicate are germane to the organization’s purpose,

and (3) neither the claim asserted nor the relief requested

requires the participation of individual members in the

lawsuit.” Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d

1100, 1105–06 (9th Cir. 2006). Only the first prong is in

dispute here.

Plaintiffs contend that Pioneer FCA’s student leaders

had standing to sue in their own right because, under the

30 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

current All-Comers Policy, any application for ASB

recognition would have been denied. Indeed, the District

admits that any such application would have been futile. But

“[w]e have consistently held that standing does not require

exercises in futility.” Taniguchi v. Schultz, 303 F.3d 950, 957

(9th Cir. 2002); see also Truth, 542 F.3d at 642.

In response, Defendants argue that Plaintiffs lack

standing and that their claims seeking prospective injunctive

relief become moot during the course of the litigation

because they cannot establish (1) a “real and immediate

threat of repeated injury” because “no students applied for

recognition of an FCA club” during the 2021–22 school

year, and (2) “any student’s intent to apply for ASB

recognition for the 2022–23 school year but for the non-

discrimination policy.”

Article III also requires that “an actual controversy be

extant at all stages of review, not merely at the time the

complaint is filed.” Campbell-Ewald Co. v. Gomez, 577

U.S. 153, 160 (2016), as revised (Feb. 9, 2016) (cleaned up).

Thus, where “an intervening circumstance deprives the

plaintiff of a personal stake in the outcome of the lawsuit, at

any point during litigation, the action can no longer proceed

and must be dismissed as moot.” Id. at 160–61 (cleaned up).

Due to the nature of the mootness inquiry, unlike standing,

we must consider factual developments that occurred after

the suit was filed. See Meland v. Weber, 2 F.4th 838, 849

(9th Cir. 2021).

The declarations submitted by Rigoberto Lopez, FCA

National’s student advisor in the Bay Area, show that at least

one student at Pioneer intended to apply for ASB recognition

but was discouraged by the District’s policies. In a

September 2021 declaration, Lopez identified four Pioneer

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 31

students, including N.M., a then-junior, who expressed her

desire to “either lead or continue [her] membership in

Pioneer FCA in the coming year” and that if the court were

to grant an injunction allowing Pioneer FCA to retain its

leadership requirements, that “Pioneer FCA’s leadership

will apply for ASB recognition.” In an October 2021

declaration, Lopez again identified N.M. as one of the

students who attended the school’s “Club Rush” recruiting

event. In a May 2022 declaration, Lopez discussed FCA’s

“plans to grow the group during the 2022–23 school year.”

As part of these plans, Lopez attended multiple meetings,

including a meeting in which the club confirmed N.M. and

B.C (who had just submitted an FCA Student Leader

Application) “as Pioneer FCA’s leadership for the 2022–23

school year.” Based on these declarations it is apparent that

at least one Pioneer FCA student leader would apply for

ASB recognition, meaning that the claims for prospective

relief are not moot.

Contrary to Defendants’ characterizations, this evidence

is not speculative. The record shows that after the decision

of the three-judge panel in this case, N.M. and B.C. promptly

applied for ASB recognition on behalf of Pioneer FCA and

submitted a signed application on September 1, 2022.

Indeed, the District indicated that the timely application

would “be approved in accordance with the Ninth Circuit’s

August 29, 2022 decision.”

Defendants seek to dismiss the Lopez declarations as

“hearsay and speculation,” and criticize Plaintiffs for not

providing “evidence from actual students, who are the only

ones who may apply for ASB recognition.” But these

arguments are legally and factually flawed. Legally, that the

declarations are hearsay is irrelevant because a court may

exercise its discretion to accept hearsay and make inferences

32 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

in ruling on a preliminary injunction. See Republic of the

Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988)

(en banc).

Moreover, the record is now clear that Lopez’s assertions

concerning N.M. and B.C. are true. Factually, Defendants’

arguments about the declarations from Lopez—rather than

the students directly—ignore the record in this case. In

making this argument, Defendants entirely ignore the

stipulation they entered into stating that the District would

not depose any non-party student in exchange for Plaintiffs’

agreement not to introduce testimony from them. Indeed,

the parties entered into this stipulation only after N.M. and

other FCA student leaders felt intimidated after receiving

deposition notices from the District’s counsel, despite not

being parties to the litigation. The District cannot

simultaneously enjoy the benefits of the stipulation by

excluding testimony from these students while criticizing

them for not submitting direct declarations they were not

required to submit.

Accordingly, we find that Pioneer FCA has

representational organizational standing to sue on behalf of

its members.

“[A]n organization has direct standing to sue where it

establishes that the defendant’s behavior has frustrated its

Because this testimony raises a mootness issue, it is appropriate to

consider the Lopez declarations here. See Lowry v. Barnhart, 329 F.3d

1019, 1024 (9th Cir. 2003) (stating that a court may allow the parties to

supplement the record where supplementary material would “render a

controversy moot and thus divest us of jurisdiction”). We therefore

GRANT Plaintiffs’ motion to supplement the record on standing, Dkt.

No. 98. All other pending motions are DENIED as moot.

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 33

mission and caused it to divert resources in response to that

frustration of purpose.” Sabra v. Maricopa Cnty. Cmty.

Coll. Dist., 44 F.4th 867, 879 (9th Cir. 2022) (quoting E. Bay

Sanctuary Covenant v. Biden, 993 F.3d 640, 663 (9th Cir.

2021)). While an organization may not “manufacture” an

injury by “choosing to spend money fixing a problem that

otherwise would not affect the organization at all,” it “can

establish standing by showing that [it] would have suffered

some other injury had [it] not diverted resources to

counteracting the problem.” Id.

According to its Huddle Playbook, FCA’s mission is

“[t]o lead every coach and athlete into a growing relationship

with Jesus Christ and His church.” FCA’s mission is highly

dependent upon its structure. Indeed, FCA’s entire ministry

starts at the local level on school campuses across the

country. As FCA states, “[t]he campus gives FCA the

platform” necessary to engage in its mission, and the

“campus is strategic” in furthering its goal of engaging

students in Christianity. On campuses in the District, only

ASB clubs enjoy the myriad benefits of membership such as

inclusion in the yearbook, the ability to fundraise, access to

an ASB account, and priority access to meeting spaces in

campus facilities. Given the vital importance of the campus

huddles to FCA’s mission, the District’s denial of those

benefits has undoubtedly hampered FCA National’s ability

to engage in its core objective. We thus conclude that the

District’s denial of ASB recognition has and continues to

frustrate FCA National’s mission.

In addition, FCA National has also had to “divert[]

resources” in “counteracting the problem” posed by the

derecognition both at the time the complaint was filed and

since then. See Sabra, 44 F.4th at 879 (citation omitted).

According to Lopez, FCA National has diverted “a huge

34 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

amount of staff time, energy, effort, and prayer that would

normally have been devoted to preparing for school or

ministry” in “[w]orking to support the FCA student leaders”

after the derecognition. In addition to working directly to

support the Pioneer FCA student leaders, FCA National has

also diverted extensive time “from working on ministry-

advancing activities to instead address” the impact of the

derecognition on the students.

Lost money and “staff time spent responding” to a

challenged government action are directly redressable and,

under our precedent, vest direct organizational standing.

Walker v. City of Lakewood, 272 F.3d 1114, 1124–25 (9th

Cir. 2001); see also, e.g., Pac. Shores Props., LLC v. City of

Newport Beach, 730 F.3d 1142, 1166 (9th Cir. 2013)

(“Diverted staff time is a compensable injury” when it is

“caused by the [challenged government action]”); Fair

Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)

(organizational plaintiff demonstrated standing by

“show[ing] a drain on its resources” caused by combating

housing violations).

The District does not ultimately dispute FCA National’s

distinct organizational standing theory. Rather, it only

disputes the factual basis for the theory: that FCA National

has not adequately demonstrated that District students intend

to apply for ASB recognition for FCA. As discussed above,

however, this argument pertains to mootness (not standing),

and two Pioneer students applied for FCA recognition in fall

2022. Because Pioneer students, such as N.M., remain

committed to forming an FCA chapter on campus, despite

the District’s derecognition, FCA National will continue to

devote significant time and resources to assist its student

members in complying with—and, if necessary,

challenging—the District’s policies. We therefore hold that

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 35

FCA National has organizational standing, and its claims are

not moot.

IV.

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his

favor, and that an injunction is in the public interest.” Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)

(citations omitted). We evaluate “these factors on a sliding

scale, such ‘that a stronger showing of one element may

offset a weaker showing of another.’” Recycle for Change

v. City of Oakland, 856 F.3d 666, 669 (9th Cir. 2017)

(quoting All. for the Wild Rockies, 632 F.3d at 1131). When

the balance of equities “tips sharply in the plaintiff’s favor,”

the plaintiff must raise only “serious questions” on the

merits—a lesser showing than likelihood of success. All. for

the Wild Rockies, 632 F.3d at 1131–32, 1134–35 (citation

omitted); see also Citigroup Glob. Mkts., Inc. v. VCG

Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d

Cir. 2010).

The district court erred in characterizing the requested

relief as a mandatory injunction rather than a prohibitory

injunction. The distinction between the two types of

injunctions can fairly be categorized as one of action versus

inaction. See Ariz. Dream Act Coal. v. Brewer, 757 F.3d

1053, 1060 (9th Cir. 2014) (“A mandatory injunction orders

a responsible party to take action, while [a] prohibitory

injunction prohibits a party from taking action and preserves

the status quo pending a determination of the action on the

merits.” (cleaned up)). The difference is legally significant

because mandatory injunctions are “particularly

36 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

disfavored,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (simplified),

and place a higher burden on the plaintiff to show “the facts

and law clearly favor the moving party.” Stanley v. Univ. of

S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (emphasis added)

(cleaned up).

The inquiry is whether the party seeking the injunction

seeks to alter or maintain the status quo. See Ariz. Dream

Act Coal., 757 F.3d at 1060–61. The district court found that

the controversy here arose when the Plaintiffs filed the

lawsuit in April 2020, and at that time, “no FCA groups had

ASB club status at any District school.” Accordingly, the

district court concluded that “the status quo is that the

District has no ASB-recognized FCA clubs” and thus

Plaintiffs were “asking to change this current state” by

seeking recognition. The district court concluded Plaintiffs

were seeking a mandatory injunction subject to the

heightened standard required for issuance.

Plaintiffs contend the controversy arose not at the time

of the lawsuit, but rather when the District first derecognized

FCA clubs in May 2019. Plaintiffs assert that they are not

seeking to alter the status quo, but simply restore it because

before the District’s actions in 2019, FCA clubs enjoyed

ASB recognition on District campuses for nearly 20 years.

In applying the heightened standard applicable to

mandatory injunctions, the district court abused its

discretion by determining that the status quo was one in

which FCA clubs were unrecognized in District schools. See

Saucillo v. Peck, 25 F.4th 1118, 1133 (9th Cir. 2022) (“[A]

district court abuse[s] its discretion by employing an

erroneous legal standard.”). While there is no bright line rule

for when a controversy arises, the district court’s reasoning

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 37

that the controversy arose at the time of the lawsuit is

contrary to our caselaw. We held in Arizona Dream that the

status quo is “the legally relevant relationship between the

parties before the controversy arose.” 757 F.3d at 1061

(emphasis omitted). The facts of Arizona Dream inform our

analysis.

There, Deferred Action for Childhood Arrivals (DACA)

recipients sought a preliminary injunction against Arizona

officials from enforcing a policy that prevented them from

obtaining driver’s licenses. Id. at 1057–58. We held that the

“district court erred in defining the status quo” as one in

which the new policy gave rise to the plaintiffs’ claims. Id.

at 1061. Rather, before the new law went into effect,

plaintiffs were eligible to receive driver’s licenses and “[b]y

revising their policy,” the defendants, not the plaintiffs,

“affirmatively changed [the] status quo.” Id.

Here, the District’s new policy of enforcing its non-

discrimination rules likewise alters the status quo of

providing FCA clubs ASB recognition—a benefit that FCA

enjoyed without issue for nearly 20 years. Based on that

longstanding relationship between the parties, we hold that

the status quo was one in which FCA enjoyed recognition.

Because it was the District’s action that “affirmatively

changed” that status quo and Plaintiffs’ motion for a

preliminary injunction seeks to restore that status quo, the

relief sought is properly viewed as a prohibitory injunction.

The district court thus erred in applying a heightened

standard applicable to mandatory injunctions.

The Free Exercise Clause of the First Amendment

provides that “Congress shall make no law . . . prohibiting

the free exercise” of religion. U.S. CONST. amend. I. To

38 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

avoid strict scrutiny, laws that burden religious exercise

must be both neutral and generally applicable. See Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 546 (1993). Nor may the government “act in a manner

that passes judgment upon or presupposes the illegitimacy of

religious beliefs and practices.” Masterpiece Cakeshop, Ltd.

v. Colo. Civ. Rts. Comm’n, 138 S. Ct. 1719, 1731 (2018).

Under the strict scrutiny standard, the government must

demonstrate that “a law restrictive of religious practice must

advance interests of the highest order and must be narrowly

tailored in pursuit of those interests.” Lukumi, 508 U.S. at

546 (cleaned up). The District argues that this standard does

not apply. The District is mistaken.

The District contends that we must analyze the Free

Exercise claim under Martinez, 561 U.S. at 661, and this

Court’s decision in Alpha Delta Chi-Delta Chapter v. Reed,

648 F.3d 790 (9th Cir. 2011). Both cases involved Free

Exercise claims, but neither governs our case. To start,

Martinez says little about the Free Exercise Clause analysis

at all. Rather, the majority opinion’s analysis is confined to

a footnote in which it simply repeats the holding from

Employment Division, Department of Human Resources of

Oregon v. Smith, 494 U.S. 872, 878–82 (1990), that “the

Free Exercise Clause does not inhibit enforcement of

otherwise valid regulations of general application that

incidentally burden religious conduct.” Martinez, 561 U.S.

at 697 n.27 (citations omitted). Quoting Martinez, the

District contends that we need only conduct a limited public

forum analysis to conclude that FCA “seeks preferential, not

equal, treatment.”

But this argument runs headlong into more recent

Supreme Court authority refining what it means to be

“generally applicable” under Smith. First, while the Fulton

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 39

majority declined to overrule Smith, the majority opinion

clarified Smith’s scope, holding that the mere existence of

government discretion is enough to render a policy not

generally applicable. See Fulton, 141 S. Ct. at 1879 (“The

creation of a formal mechanism for granting exceptions

renders a policy not generally applicable, regardless whether

any exceptions have been given. . . .”). Second, and as

discussed later, the stipulated facts in Martinez providing for

an exceptionless policy are critically distinct from the

discretion the District retains when applying the non-

discrimination policies in this case. See 561 U.S. at 675–76.

In relying on Alpha Delta, the District argues that

Plaintiffs’ Free Exercise claims fail because they do not

“contend that the purpose of the District’s nondiscrimination

policy is to suppress or discriminate against particular

viewpoints or content.” But on this point Alpha Delta is not

controlling because it is out of step with the Supreme Court’s

post-Smith Free Exercise jurisprudence. In Alpha Delta, we

found no Free Exercise violation because the policy

incidentally burdening religion did “not target religious

belief or conduct.” 648 F.3d at 804. Since Alpha Delta was

decided, the Supreme Court has clearly rejected such a

“targeting” requirement for demonstrating a Free Exercise

violation. This is most evident in Tandon v. Newsom, in

which the Court held that “treat[ing] any comparable secular

activity more favorably than religious exercise” prevented a

law from being considered “neutral and generally

applicable.” 141 S. Ct. 1294, 1296 (2021) (per curiam).

Thus, Fulton and Tandon clarify that targeting is not

required for a government policy to violate the Free Exercise

Clause. Instead, favoring comparable secular activity is

sufficient. To the extent that Alpha Delta stands for the

proposition that a Free Exercise violation requires a showing

40 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

of more, we overrule it as “clearly irreconcilable” with

intervening Supreme Court authority. See Miller v. Gammie,

335 F.3d 889, 900 (9th Cir. 2003) (en banc).

Distilled, Supreme Court authority sets forth three

bedrock requirements of the Free Exercise Clause that the

government may not transgress, absent a showing that

satisfies strict scrutiny. First, a purportedly neutral

“generally applicable” policy may not have “a mechanism

for individualized exemptions.” Fulton, 141 S. Ct. at 1877

(quoting Smith, 494 U.S. at 884). Second, the government

may not “treat . . . comparable secular activity more

favorably than religious exercise.” Tandon, 141 S. Ct. at

1296. Third, the government may not act in a manner

“hostile to . . . religious beliefs” or inconsistent with the Free

Exercise Clause’s bar on even “subtle departures from

neutrality.” Masterpiece Cakeshop, 138 S. Ct. at 1731

(citation omitted); Lukumi, 508 U.S. at 534. The failure to

meet any one of these requirements subjects a governmental

Alpha Delta’s analysis pertaining to the Free Speech Clause has

similarly been abrogated by more recent Supreme Court authority. In

Alpha Delta, our court found that the nondiscrimination policy was not

subject to strict scrutiny because it was not implemented “for the purpose

of suppressing [p]laintiffs’ viewpoint.” 648 F.3d at 801. But that

standard requiring a purpose or intent to suppress a viewpoint is

incompatible with Reed v. Town of Gilbert, 576 U.S. 155 (2015). In

reversing our court, Reed held that “[a] law that is content based on its

face is subject to strict scrutiny regardless of the government’s benign

motive, content-neutral justification, or lack of ‘animus toward the ideas

contained’ in the regulated speech.” Id. at 165 (quoting Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 429 (1993)). Thus, even if the

District were correct that there was no intent to suppress FCA’s religious

viewpoint—a contention that is dubious based on these facts—the

District’s intent is irrelevant in the Free Speech analysis. Because Alpha

Delta is no longer good law, Plaintiffs are likely to prevail on their Free

Speech claim as well.

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 41

regulation to review under strict scrutiny. On the record

before us, the District’s implementation of its non-

discrimination policies fails all three.

The Supreme Court’s recent decision in Fulton

demonstrates the faults in the District’s view of general

applicability. In Fulton, a foster care agency, Catholic

Social Services (CSS) had a contract with the City of

Philadelphia (City) in which the City’s Department of

Human Services would ultimately place children in foster

homes associated with CSS. 141 S. Ct. at 1874–75. CSS,

like FCA, held religious beliefs about marriage that

informed its work within the foster care system. Id. at 1875.

“CSS believe[d] that marriage is a sacred bond between a

man and a woman,” and as such, it would not certify

unmarried or same-sex couples to participate in its program.

Id.

In 2018, the City investigated CSS after the City

Council stated that there were “laws in place to protect . . .

people from discrimination that occurs under the guise of

religious freedom.” Id. The City ultimately decided that it

would not fully renew its contract with CSS unless the

agency agreed to certify participation by same-sex couples.

Id. at 1875–76. CSS and three of its affiliated foster parents

sued, bringing Free Exercise challenges. After the Third

Circuit affirmed the district court’s denial of preliminary

relief, id. at 1876, the Supreme Court reversed, id. at 1882.

In doing so, the Supreme Court provided a framework

for determining whether a government policy burdening

“CSS [did] not object to certifying gay or lesbian individuals as single

foster parents or to placing gay and lesbian children.” Fulton, 141 S. Ct.

at 1875.

42 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

religious exercise is “generally applicable” and thus not

subject to strict scrutiny. Id. at 1877. Under this framework,

“[a] law is not generally applicable if it invites the

government to consider the particular reasons for a person’s

conduct by providing a mechanism for individualized

exemptions.” Id. (cleaned up). In our case, the District’s

policies are not generally applicable because the District

retains discretion to grant individualized exemptions for its

own programs and student programs alike.

The District has “broad” and “comprehensive” policies

forbidding discrimination on the basis of race, sex, sexual

orientation, religion, and other criteria. These policies apply

district-wide not only for ASB student groups, but also for

all District programs and activities. But rather than apply its

non-discrimination policies without exception, the District

admits that it retains (and exercises) significant discretion in

applying exceptions to its own programs, as well as to

student programs. Indeed, the District claims to justify this

exercise of discretion using its separate “Board-adopted

equity policy,” which represents the District’s “commitment

to ensuring that . . . students get what they need” and to

“support high-quality outcomes for students.” While

inclusiveness is a worthy pursuit, it does not justify uncertain

exemptions or exceptions from the broad non-discrimination

policies, which undermine their neutrality and general

applicability and burden Free Exercise. For example, the

District’s mechanism allows it to evaluate which “groups of

students” qualify for the equity policy’s objectives based on

“race, ethnicity, gender, sexual orientation, language,

disability, and socioeconomic status.” This authority “to

decide which reasons for not complying with the policy are

worthy of solicitude” on an ad hoc basis renders the policy

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 43

not “generally applicable” and requires the application of

strict scrutiny. Fulton, 141 S. Ct. at 1879 (cleaned up).

The District’s assertion that Fulton was only concerned

with “unfettered” discretion, is overly narrow. Properly

interpreted, Fulton counsels that the mere existence of a

discretionary mechanism to grant exemptions can be

sufficient to render a policy not generally applicable,

regardless of the actual exercise. See id. at 1879. And this

case steps beyond the mere existence of a mechanism.

Although the District avers that it has not yet exercised its

discretion to grant exemptions, the record is replete with

instances in which the District has actually done so, and done

so in a viewpoint-discriminatory manner. Most notably, the

District exercises its discretion to allow student groups to

discriminate based on sex or ethnic identity. For example,

the District recognizes the Senior Women Club and the

South Asian Heritage Club, which facially discriminate on

the basis of sex and ethnicity. Even if the District seeks to

justify these discriminatory practices by asserting that they

benefit “individuals who need specific support from the

school system” and align with the District’s “equity policy,”

this would not change matters. As discussed more below,

the District’s alleged good intentions do not change the fact

that it is treating comparable secular activity more favorably

than religious exercise.

The District also retains discretion to allow student

groups to discriminate based on other “non-discriminatory”

criteria. The District does not maintain any written list of

such approved criteria; rather, these exemptions are

sanctioned based on the District officials’ use of “common

sense” on a case-by-case basis. For example, the District

allows its clubs and programs to restrict membership based

on attributes such as good character. While screening for

44 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

such qualities may further important interests for particular

clubs, the very fact that they require a case-by-case analysis

is antithetical to a generally applicable policy.

The non-discrimination policies at issue may serve many

admirable goals articulated by the District. Of course, it is

desirable to help “students get what they need” and to

“support high-quality outcomes for students.” But in

allowing exceptions to its generally applicable policies, the

District necessarily is forced to delve into the specific facts

and circumstances or to “consider the particular reasons” for

such “individualized exemptions.” Fulton, 141 S. Ct. at

1877. Thus, while the exercise of “common sense often

makes good law,” Peak v. United States, 353 U.S. 43, 46

(1957), it means that the law is not generally applicable. The

District’s broad discretion to grant exemptions on less than

clear considerations removes its non-discrimination policies

from the realm of general applicability and thus subjects the

policy to strict scrutiny.

In Fulton, the Supreme Court determined that it was

“more straightforward to resolve [the] case under the rubric

of general applicability” rather than to address the claims the

government had also “transgressed [the] neutrality standard”

required by the Free Exercise Clause. Fulton, 141 S. Ct. at

1877. But under the facts of our case, it is evident that in

addition to a lack of general applicability, there are

significant concerns with the District’s lack of neutrality.

As the Court held in Tandon, “regulations are not neutral

and generally applicable . . . whenever they treat any

comparable secular activity more favorably than religious

exercise.” 141 S. Ct. at 1296 (citing Roman Cath. Diocese

of Brooklyn v. Cuomo, 141 S. Ct. 63, 67–68 (2020) (per

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 45

curiam)). In Tandon, the Court explained that California

could not impose COVID-related gathering restrictions on

at-home religious exercise while providing more favorable

treatment to comparable secular activities by exempting

gatherings at places such as hair salons, retail stores, movie

theaters, and indoor restaurants. Id. at 1297. Similarly in

Lukumi, the City of Hialeah could not ban animal sacrifice

in a manner that precluded the religious practices of Santeria

while exempting other forms of animal killing for food,

including hunting. 508 U.S. 524–28, 537–39. At bottom—

and regardless of design or intent—the government may not

create “religious gerrymanders.” Walz v. Tax Comm’n of

N.Y.C., 397 U.S. 664, 696 (1970) (Harlan, J., concurring).

Under Tandon, “whether two activities are comparable

for purposes of the Free Exercise Clause must be judged

against the asserted government interest that justifies the

regulation at issue.” 141 S. Ct. at 1296 (citing Roman Cath.

Diocese, 141 S. Ct. at 67). And in making these

comparisons, the Court “is concerned with the risks various

activities pose.” Id. While the District attempts to draw a

distinction between school-operated and student-operated

programs, we are only concerned with the risk involved and

“not the reasons why people gather.” Id. The District’s

asserted interest here is in ensuring equal access for all

students to all programs and in prohibiting discrimination on

protected enumerated bases, including sex, race, and

ethnicity.

However, in practice, this results in a pattern of selective

enforcement favoring comparable secular activities. For

example, the District allowed the Girls’ Circle to admit only

female-identifying students, and the Big Sister/Little Sister

club to similarly exclude members of the opposite gender.

The District also permitted groups to select their members

46 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

based on “good moral character.” However, this selective

enforcement is seen most obviously in the case of the Senior

Women Club, which was ASB approved despite the group

stating on its ASB application form that “[a] student shall no

longer be considered a member if the student . . . does not

identify as female.” The District Court clearly erred in

finding that despite this express membership requirement,

because the club’s application also contained pre-written

template non-discrimination language, it was “not clear

proof that the District allows the club to violate” the non-

discrimination policy. In sum, each of these clubs were

allowed to discriminate expressly—even on otherwise

protected grounds. That the District allows such

discrimination for secular groups significantly undercuts its

goal of ensuring that all students “ha[ve] equal access . . . to

all of [the District’s] programs.” Indeed, to the contrary, the

District actually “identif[ies] systemic issues” on the basis of

characteristics such as race and gender, and in response

creates these programs and activities designed to fulfill the

needs of those secular groups.

Individual preferences based on certain characteristics

and criteria serve important purposes for these groups. It is

hardly a leap of logic to say that the Senior Women club

benefits from having all female members to help their

members feel more comfortable. And it is understandable

that other clubs require “good moral character.” But at the

same time, it makes equal sense that a religious group be

allowed to require that its leaders agree with the group’s

most fundamental beliefs. Simply put, there is no

meaningful constitutionally acceptable distinction between

the types of exclusions at play here. Whether they are based

on gender, race, or faith, each group’s exclusionary

membership requirements pose an identical risk to the

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District’s stated interest in ensuring equal access for all

student to all programs. Under Tandon, the District’s

acceptance of comparable selective secular organizations

renders its decision to revoke and refuse recognition to FCA

subject to strict scrutiny.

“A law burdening religious practice that is not neutral or

not of general application must undergo the most rigorous of

scrutiny.” Lukumi, 508 U.S. at 546. Indeed, the Free

Exercise Clause “forbids subtle departures from neutrality,”

and “covert suppression of particular religious beliefs.” Id.

(first quoting Gillette v. United States, 401 U.S. 437, 452

(1971) then quoting Bowen v. Roy, 476 U.S. 693, 703

(1986)). As part of evaluating the neutrality of government

actions, we must therefore examine “the historical

background of the decision under challenge, the specific

series of events leading to the enactment or official policy in

question, and the legislative or administrative history,

including contemporaneous statements made by members of

the decisionmaking body.” Masterpiece Cakeshop, 138 S.

Ct. at 1731 (quoting id. at 540). We especially note that

government actions coupled with “official expressions of

hostility to religion . . . [are] inconsistent with what the Free

Exercise Clause requires . . . [and] must be set aside.” Id. at

1732. Although the district court made no findings in this

regard, the District’s hostility toward FCA was neither subtle

nor covert and its decision to revoke FCA’s ASB recognition

is therefore subject to strict scrutiny.

The Supreme Court’s recent decision in Masterpiece

Cakeshop is illustrative. There, state officials in the

Colorado Civil Rights Commission (Commission) opened

an investigation into a baker and cake-shop owner after he

48 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

declined to create custom wedding cakes for same-sex

couples because he claimed his religious beliefs prohibited

him from doing so. Masterpiece Cakeshop, 138 S. Ct. at

1724–26. After referring the matter to an administrative law

judge, the Commission affirmed the decision, ordered

various remedial measures, and commanded the baker to

cease and desist from refusing same-sex couples the same

wedding-related services provided to heterosexual couples.

Id. at 1726. The Colorado Court of Appeals affirmed the

Commission. Id. at 1726–27.

The Supreme Court reversed, finding that the

Commission demonstrated “elements of a clear and

impermissible hostility toward the sincere religious beliefs

that motivated his objection.” Id. at 1729. The Court

specifically highlighted several instances of hostility

demonstrated by members of the Commission, including

comments that the baker’s beliefs had no legitimate currency

in the public sphere and that he could believe “what he wants

to believe” but had to compromise if he wanted to “do

business in the state.” Id. While the Court found those

comments demonstrated some level of hostility, any doubt

of the disparaging nature of those comments was lifted when

one of the commissioners at another public meeting opined

that religion was a common means “to justify all kinds of

discrimination throughout history,” including slavery and

the Holocaust. Id. That same commissioner also stated that

“[religion] is one of the most despicable pieces of rhetoric

that people can use to––to use their religion to hurt others.”

Id. The Court found that these disparaging comments—to

which no other member of the Commission objected—

inescapably “cast doubt on the fairness and impartiality of

the Commission’s adjudication of [the] case.” Id. at 1730.

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The Court also found evidence of hostility based on the

difference in treatment between this particular baker and the

cases of at least three “other bakers who objected to a

requested cake on the basis of conscience and prevailed

before the Commission.” Id. at 1730. In those instances,

bakers refused to create cakes with messages and religious

text conveying disapproval of same-sex marriage, and the

Commission found objections that such messages were

“derogatory,” “hateful,” and “discriminatory” sufficient. Id.

The Court rejected any distinction, holding that any

disparate treatment “cannot be based on the government’s

own assessment of offensiveness.” Id. at 1731. In sum, the

Supreme Court found that the Commission’s actions

violated its “duty under the First Amendment not to base

laws or regulations on hostility to a religion or religious

viewpoint.” Id.

The Court further noted the somewhat unique

circumstances of that case in that the hostile comments

showing animus were made by members of an adjudicatory

body that was tasked with neutrally applying the law while

it was deciding the case. Id. In our case, the District

contends that there is “no evidence” that the statements made

by Glasser, Bowman, and Principal Espiritu and others

“informed, let alone dictated the District’s decision[]” to

derecognize FCA. We disagree.

While not directly equivalent to the Commission, the

Climate Committee and its role in the derecognition of FCA

fall well within the ambit of the legal principles articulated

in Masterpiece Cakeshop. The Climate Committee was not

simply made up of random individuals in the District, but

rather individuals with positions of importance within the

schools including department chairs, administrators such as

the principal and vice principal, and the director of activities.

50 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

Moreover, the stated purpose of this group was to “to discuss

anything . . . negatively impacting [the] climate or . . .

culture on campus.” Without Glasser’s and the Climate

Committee’s actions, there is no indication that any other

group or administrative body within the District would have

called for an investigation of FCA’s membership and

leadership policies and ultimately called for its

derecognition on campus.

Like the Commission in Masterpiece Cakeshop, the

Climate Committee made a recommendation that was

ratified by the District. While there is some confusion as to

whether the District or Principal Espiritu had the final say on

derecognition, there is no dispute that the decision closely

followed the Climate Committee’s determination that FCA

violated certain “core values” such as “inclusiveness [and]

open-mindedness.” There is no indication that any member

of the Climate Committee or District official thought

otherwise; to the contrary, the Climate Committee concluded

it had “to take a united stance as [a] committee.” After

Principal Espiritu forwarded the Climate Committee’s

concerns to District officials, there is also no indication in

the record that District officials pushed back on these views

in any way. Rather, the District allowed Principal Espiritu

and the Climate Committee to strip FCA of ASB status. Any

doubt regarding the power wielded by the Climate

Committee and Principal Espiritu is belied by the speed in

which FCA was derecognized.

Before the Climate

At oral argument, counsel for the District stated that “the record is

clear that the Climate Committee did not make [the decision to

derecognize FCA]” and that “Ms. Bowman and Mr. Glasser, who were

the teachers, were not involved in the decision.” These assertions––that

Bowman and Glasser were simply teachers with no influence and that

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Committee’s investigation, FCA had functioned on campus

without issue for nearly 20 years. But in a span of less than

two weeks after the initial complaint by Glasser, FCA was

derecognized without any ability to defend itself—a penalty

never before imposed on any ASB-recognized student group

at Pioneer.

The District argues that there is not even “any whiff of

antireligious animus” present in this case. This argument

“does not pass the straight-face test.” Hughes v. Kisela, 862

F.3d 775, 797 (9th Cir. 2016) (Ikuta, J., dissenting from

denial of rehearing en banc); see also Cervantes v. United

States, 330 F.3d 1186, 1187 (9th Cir. 2003) (“Although rare,

on occasion, we see arguments that simply fail the straight-

face test.”). Assessed in their totality, the facts of this case

arguably demonstrate animus by government decision-

makers exceeding that present in Masterpiece Cakeshop or

Lukumi. This holds particularly true when bearing in mind

the hostility here is directed not at adult professionals, but at

teenage students.

Students were told—in front of their

peers—that the views embodied in their Statement of Faith

were objectionable and hurtful and had no rightful place on

campus.

While there is strong evidence of animus toward FCA in

the District, for purposes of the Masterpiece Cakeshop

the Climate Committee had no role in the decision-making process––are

unsupported by the totality of the record in this case.

While teachers certainly retain their own Free Speech rights, the power

dynamic of the student-teacher relationship is not lost upon us. In a

vacuum, the disparaging comments made by some of the members of the

Climate Committee are harmful, but when made to and in reference to

students that they are responsible for counseling, such statements bolster

a finding of animus in this case.

52 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

analysis, we focus on the animus exhibited by the members

of the Climate Committee. One teacher and Climate

Committee member disparaged FCA’s beliefs by calling

them “bullshit” and deeming them without “validity.”

Another teacher and Climate Committee member accused

FCA of “choos[ing] darkness” and “perpetuat[ing]

ignorance,” calling them “charlatans,” who “‘conveniently’

forget what tolerance means,” and “twisting the truth.” And

perhaps most tellingly, the school’s principal stated to the

entire school in a newspaper article that FCA’s views were

“of a discriminatory nature.” These comments echo the

comments condemned by the Court in Lukumi and

Masterpiece Cakeshop. See Lukumi, 508 U.S. at 541–42

(noting comments by city officials describing Santeria as

“foolishness,” “an abomination,” and “abhorrent”);

Masterpiece Cakeshop, 138 S. Ct. at 1729 (noting comments

by Commission members describing the baker’s religious

beliefs as “despicable” and comparing them to “defenses of

slavery and the Holocaust”).

Even after FCA was derecognized on campus, students

and teachers alike continued their campaign to “ban FCA

completely from campus.” And Glasser, for instance, over

a summer vacation, went so far as to hypothesize a scenario

in which “FCA violates [the District’s] sexual harassment

policy.” In other words, he suggested that teenage students

who met in private to hold prayer groups and discuss the

Bible were creating a hostile work environment for the adult

teachers on campus. Indeed, Glasser’s follow up email

expressing his eagerness to “talk about next steps” to “use[]”

government policy to exclude FCA is the exact type of

comment found to “evidence significant hostility” by the

Supreme Court. Lukumi, 508 U.S. at 541 (holding that

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 53

statements by city council, including asking: “[w]hat can we

do to prevent the Church from opening?” to show animus).

The objections to FCA’s presence were not merely

passive, either. Students formed the Satanic Temple Club,

which Glasser viewed as created for the sole purpose of

mocking FCA, and whose faculty advisor was another

Climate Committee member. And while unlike Masterpiece

Cakeshop, none of these statements were made during an

actual adjudication, particularly when considered at the

preliminary injunction stage these actions sufficiently show

that the District’s decisions were motivated by “animosity to

religion or distrust of its practices.” See Lukumi, 508 U.S. at

547. Accordingly, the District’s policies are subject to strict

scrutiny.

VI.

In response to the ongoing litigation, the District adopted

its own version of the All-Comers policy modeled after the

version upheld by the Supreme Court in Martinez. Based on

the adoption of this new policy, the District contends that the

past actions under its non-discrimination policy do not give

rise to any forward-looking relief because FCA is the only

club that maintains discriminatory criteria. We are not

persuaded.

Though new in name, the record evidence shows that the

All-Comers Policy is little more than a rebranded version of

the District’s previous non-discrimination policies. Indeed,

the language of the two policies and the types of

discrimination they seek to prohibit is functionally identical.

They are nearly indistinguishable on paper and there is no

daylight between them for purposes of enforcement. Even

after the implementation of the All-Comers Policy, the

District still approved clubs with facially discriminatory

54 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

membership criteria such as the Senior Women Club.

Pioneer’s Activities Director, Michelle Mayhew,

acknowledged that other groups could continue to limit their

membership based on criteria such as good moral character.

While the District attributes issues in the process for

approving these clubs to a simple mistake or inadvertence

instead of to selective enforcement of its anti-discrimination

policies, its argument is undercut by Mayhew’s admission

that under the All-Comers Policy, she would approve an

ASB application for the Girls Who Code club even if it

expressly limited its membership to students identifying as

female. Based on the record before us, the only reasonable

inference that can be drawn here is that the “in name only”

All-Comers Policy was adopted in response to the litigation

in this case. But the adoption of that policy cannot undo the

past animosity toward FCA based on its beliefs. In sum, the

All-Comers Policy appears to be the type of post hoc

justification that is incompatible with the protections of the

First Amendment. See Kennedy, 142 S. Ct. at 2432 n.8

(“Government ‘justifications[s]’ for interfering with First

Amendment rights ‘must be genuine, not hypothesized or

invented post hoc in response to litigation.’” (alteration in

original) (quoting United States v. Virginia, 518 U.S. 515,

533 (1996))).

While each of these groups may have valid reasons for

its membership prerequisites or preferences, the All-Comers

Policy does not provide exceptions for “benign”

discriminatory membership rules. Indeed, even if it did, the

Constitution does not allow for “benign” classification based

on race, ethnicity, or sex. See Adarand Constrs., Inc. v.

Pena, 515 U.S. 200, 226–27 (1995) (applying strict scrutiny

to “benign” racial classifications). While each of these clubs

might be able to maintain discriminatory membership

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 55

policies, the District may not selectively enforce the All-

Comers Policy against FCA because of its religious beliefs.

In sum, the All-Comers Policy is neither neutral nor

generally applicable under Fulton or Tandon.

In its briefing, the District relies heavily on Martinez in

an attempt to justify its position. But Martinez does not

stand for the broad proposition that an all-comers policy

immunizes an institution from scrutiny of whether a law or

policy is neutral and generally applicable. Rather, Martinez

simply held that a truly categorical all-comers policy—one

which required student groups to accept all members without

exception—may comply with the First Amendment as a

neutral law of general applicability. See 561 U.S. at 674–76

(discussing parties’ stipulation). Martinez is also

distinguishable on its facts. The narrowness of the Court’s

holding is evident by its repeated emphasis that the policy

was applicable “across-the-board” on the basis of a

stipulated record. See id. at 668, 675–78; see also id. at 698

(Stevens, J., concurring) (observing the “narrow issue

presented by the record”). By contrast, the record here

demonstrates the District’s All-Comers Policy is replete with

exemptions that treat comparable secular groups more

favorably by allowing them to limit membership based on a

As previously noted, see supra at 18 n.2, the EAA prohibits the District

from denying any student club equal access to ASB recognition based on

the “religious, political, philosophical, or other content” of the club’s

speech. Even if a law is facially “content-neutral,” the government still

impermissibly regulates based on content if it selectively enforces its

laws. See Menotti v. City of Seattle, 409 F.3d 1113, 1146–47 (9th Cir.

2005). In examining content-neutrality under the EAA, we borrow the

First Amendment analysis. See Truth, 542 F.3d at 645–46. Because

Plaintiffs are also likely to succeed on the merits of their Free Exercise

claim, in part due to the selective enforcement and discrimination based

on religious viewpoint, they are also likely to prevail on their EAA claim.

56 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

variety of discriminatory secular criteria. Fairly read,

Martinez affirms that the District’s All-Comer’s Policy as

applied is neither neutral nor generally applicable, and thus

is subject to strict scrutiny.

* * *

Under each of the three criteria set forth by the Supreme

Court, the District’s non-discrimination policies are subject

to strict scrutiny. The District essentially concedes that it

cannot meet this standard as it has offered no arguments to

the contrary. To pass strict scrutiny, the District’s policies

must be “narrowly tailored” to advance “a compelling

governmental interest.” Lukumi, 508 U.S. at 531–32.

Because the District has failed to offer any showing that it

has even considered less restrictive measures than those

implemented here, it fails at least the tailoring prong of the

strict scrutiny test. See Thomas v. Rev. Bd. of Ind. Emp. Sec.

Div., 450 U.S. 707, 718 (1981). Accordingly, Plaintiffs have

shown a likelihood of success on the merits of their Free

Exercise claims to support the issuance of a preliminary

injunction.

VII.

The remaining factors in the preliminary injunction test

also favor an injunction. It is axiomatic that “[t]he loss of

First Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.” Roman

Cath. Diocese, 141 S. Ct. at 67 (quoting Elrod v. Burns, 427

U.S. 347, 373 (1976) (plurality opinion)). And we have

observed, “[i]rreparable harm is relatively easy to establish

in a First Amendment case” because the party seeking the

injunction “need only demonstrate the existence of a

colorable First Amendment claim.” Cal. Chamber of Com.

v. Council for Educ. & Rsch. on Toxics, 29 F.4th 468, 482

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 57

(9th Cir. 2022), cert. denied, No. 22-699, 2023 WL 2959385

(U.S. Apr. 17, 2023) (cleaned up). For all the reasons

discussed above, Plaintiffs have demonstrated a colorable

claim that the District’s application of its non-discrimination

policies to FCA violated their Free Exercise rights, and will

continue to violate those rights absent an injunction. In

particular, the deprivation of ASB recognition has and will

continue to hamper FCA’s ability to recruit students,

constituting an enduring harm that will irreparably risk the

club’s continued existence on campus. See Christian Legal

Soc’y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006)

(explaining the “flaw[]” in the district court’s holding of no

irreparable harm based on derecognition). The irreparable

harm factor thus weighs in favor of injunctive relief.

Where, as here, the party opposing injunctive relief is a

government entity, the third and fourth factors—the balance

of equities and the public interest—“merge.” Nken v.

Holder, 556 U.S. 418, 435 (2009). Because FCA has (at a

minimum) “raised serious First Amendment questions,” that

alone “compels a finding that the balance of hardships tips

sharply in [its] favor.” Am. Bev. Ass’n v. City & County of

San Francisco, 916 F.3d 749, 758 (9th Cir. 2019) (en banc)

(cleaned up). Furthermore, “it is always in the public interest

to prevent the violation of a party’s constitutional rights.” Id.

(quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.

2012)).

Finally, without injunctive relief, FCA’s ability to recruit

new students to bolster its dwindling membership will

continue to be harmed, to the degree that the club may cease

to exist District-wide. While the District’s asserted interest

in inclusiveness may be important, the Constitution prohibits

the District from furthering that interest by discriminating

against religious views. Indeed, the record suggests that the

58 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

harm to the District by the grant of injunctive relief is

minimal as prior to the events giving rise to this action, FCA

existed as a recognized club for nearly two decades without

any objection. In sum, the remaining injunction factors

favor the grant of preliminary relief.

VIII.

Anti-discrimination laws and policies serve undeniably

admirable goals, but when those goals collide with the

protections of the Constitution, they must yield—no matter

how well-intentioned. 303 Creative LLC v. Elenis, 143 S.

Ct. 2298, 2315 (2023) (“When a state public

accommodations law and the Constitution collide, there can

be no question which must prevail.” (citing U.S. CONST.,

Art. VI, cl. 2)). Even if the views held by FCA may be

considered to be out-of-date by many, the First Amendment

“counsel[s] mutual respect and tolerance . . . for religious

and non-religious views alike.” Kennedy, 142 S. Ct. at 2416.

We do not in any way minimize the ostracism that LGBTQ+

students may face because of certain religious views, but the

First Amendment’s Free Exercise Clause guarantees

protection of those religious viewpoints even if they may not

be found by many to “be acceptable, logical, consistent, or

comprehensible.” Fulton, 141 S. Ct. at 1876 (quoting

Thomas, 450 U.S. at 714).

Plaintiffs are likely to succeed on their Free Exercise

claims because the District’s policies are not neutral and

generally applicable and religious animus infects the

District’s decision making.

The remaining factors also

support granting Plaintiffs’ requested injunctive relief.

As noted, supra at 40 n.8, 55 n.12, Plaintiffs are also likely to succeed

on their Free Speech and EAA claims.

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 59

Therefore, we REVERSE the district court’s denial of

FCA’s motion for a preliminary injunction and direct the

district court to enter an order reinstating FCA’s ASB

recognition.

FORREST, J., concurring:

The San Jose Unified School District’s (District)

treatment of students participating in the Fellowship of

Christian Athletes’ (FCA) student club is shocking and

fundamentally at odds with bedrock principles that have

guided our Republic since the beginning. I strongly agree

with the court that FCA is entitled to a preliminary

injunction. I write separately only because, after further

consideration, I see this as a free-speech case more than a

religious-freedom case, and I would resolve it under the

Equal Access Act (EAA) and the Free Speech Clause of the

First Amendment. I also would not address direct

organizational standing because FCA’s chapter at Pioneer

High School (Pioneer) has standing to represent its members

in this action.

Plaintiffs also appeal the district court’s denial of their two motions to

supplement the preliminary injunction record. Because the district court

failed to provide any explanation for denying the motions and because

the evidence—namely, Lopez’s third declaration—is highly relevant for

determining mootness, we reverse the district court’s denial of Plaintiffs’

motions to supplement the preliminary injunction record. C.f. EEOC v.

Peabody W. Coal Co., 773 F.3d 977, 990 (9th Cir. 2015) (holding that

district court’s denial of a motion to supplement the preliminary

injunction record was not an abuse of discretion because the

supplemental evidence was irrelevant to the issues properly before the

court).

60 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

The EAA prohibits public secondary schools from

denying equal access to student-initiated clubs based on the

content of speech at club meetings. 20 U.S.C. § 4071.

Congress enacted the EAA to extend a Supreme Court

decision establishing free-speech rights for student clubs on

college campuses to public secondary schools. See Bd. of

Educ. of Westside Cmty. Schs. v. Mergens By & Through

Mergens, 496 U.S. 226, 235 (1990). The EAA directly

applies here. Additionally, the fundamental problem with the

District’s treatment of FCA applies to ideological student

clubs generally, not just religious clubs. Resolving this case

on free-speech grounds recognizes that broader reality.

Thus, I join Parts I–II, III.A., IV, and VI–VII of the court’s

opinion and otherwise concur in the judgment because I

would reverse the district court’s denial of a preliminary

injunction in favor of FCA because FCA is likely to succeed

on the merits of its EAA and First Amendment free-speech

claims.

I. BACKGROUND

A. FCA’s Mission & Organization

FCA is a national Christian ministry organization that

was founded in 1954 (FCA National). Its mission is “to lead

every coach and athlete into a growing relationship with

Jesus Christ and His church.” FCA has over 20,000 ministry

groups worldwide, including 7,000 local chapters operating

at middle schools, high schools, and colleges across the

United States. FCA’s method for accomplishing its mission

is “to make disciples through . . . engaging, equipping and

empowering coaches and athletes to know and grow in

Christ and lead others to do the same.” FCA chapter events

include religious discussions, service projects, prayer times,

worship, weekly meetings, and Bible studies.

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The FCA chapter at Pioneer in San Jose, California

(Pioneer FCA), is an affiliate of FCA National that was

recognized by the District as an Associated Student Body

(ASB) approved student organization beginning in the early

2000s. Pioneer FCA hosts leadership meetings “focused on

prayer, equipping student leaders for ministry, and planning

ministry events,” and “whole-chapter events,” where the

group hosts a “well-known professional” or college athlete

“to share about their own faith journeys and provide

inspiration to students.” The chapter events begin by

welcoming the participants and explaining FCA’s mission,

followed by an icebreaker and Bible teaching or a “Christian

message from guest speakers,” and concludes with a

discussion of the Christian beliefs that were taught, and a

prayer.

All students are welcome to participate in these FCA

events and become members of FCA. But FCA has faith-

based eligibility criteria for its student leaders. FCA’s

student leaders are responsible for ensuring that club

meetings are conducted in a manner consistent with FCA’s

faith and for coordinating the content, format, timing, and

location of such meetings. They lead FCA meetings and

Bible studies, prayer, worship, and religious teachings;

identify topics and speakers for events; “minister to their

peers individually”; and “communicate FCA’s message

when interacting with” various staff and students at their

schools. Further, FCA leaders are formally deemed “FCA

Representatives,” with a “core function” of “religious

ministry” through their expression, messaging, and

modeling of FCA’s faith-based beliefs.

Given these responsibilities, FCA provides religious

training for its student leaders about FCA’s vision, values,

and ministry. The training equips student leaders “to study

62 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

the Bible, lead a campus huddle, and share their testimonies

with others,” and teaches them how to structure and lead

meetings. These trainings also cover “worship, prayer, Bible

teaching, mentoring,” and teaching the “mission and vision

of FCA.”

As part of ensuring that FCA’s student leaders are

equipped to fulfill their “spiritual roles” and adequately carry

out FCA’s mission, FCA requires prospective student

leaders to fill out applications describing their spiritual

commitment, personally affirm FCA’s Statement of Faith,

and agree to follow FCA’s Sexual Purity Statement. Specific

beliefs that FCA student leaders must affirm include that

“every person should be treated with love, dignity, and

respect”; that the Bible is the “Word of God”; that “Jesus

Christ is God”; and that “God instituted marriage between

one man and one woman as the foundation of the family and

the basic structure of human society.” FCA’s Sexual Purity

Statement further professes:

God desires His children to lead pure lives of

holiness. The Bible teaches that the

appropriate place for sexual expression is in

the context of a marriage relationship. The

biblical description of marriage is one man

and one woman in a lifelong commitment.

In addition to affirming these beliefs and agreeing to

follow FCA’s Sexual Purity Statement, student leaders must

also acknowledge that they will be “held to a higher standard

of biblical lifestyle and conduct” and that they are required

to “do their best to live and conduct themselves in

accordance with biblical values.” And they must affirm they

will “not subscribe to or promote any religious beliefs

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 63

inconsistent with [FCA’s] beliefs.” FCA asserts that

“[h]aving student leaders who refuse[] to personally accept

FCA’s religious beliefs would compromise the integrity of

the group and the leaders, undercut the group’s mission and

message, and harm [its] ability to express [its] Christian

beliefs.”

B. ASB Program

The ASB program overseen by the District allows

students to form after-school clubs and was developed to

provide a forum for students to “learn how to be leaders; how

to engage with some of the democratic principles that align

with their own personal interests; how to be members of a

community; [and] how to be welcoming and inclusive.”

ASB clubs must be student-initiated, and their meetings may

not be run or controlled by school employees or agents. And

while ASB clubs all have faculty advisors, District staff may

not be directly involved in religious activities. ASB-

recognized clubs are included in the school yearbook and

official school-club lists, receive priority access to school

meeting spaces, have access to ASB accounts, and can run

and receive support for ASB-approved fundraisers. Non-

ASB clubs are allowed to use school facilities to meet, but

they do not receive the benefits afforded to ASB-recognized

clubs.

The District recognizes as ASB-approved clubs a wide

variety of student groups formed for various purposes. ASB-

approved clubs include the Harry Potter Club, Communism

Club, Shrek Club, Girls Who Code, and Chess Club. Each

club sets the criteria for their members and leaders. For

example, the South Asian Heritage club “prioritize[s]”

acceptance of South Asian members. The Senior Women

club limits its membership to “seniors who identify as

64 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

female.” And the Big Sister Little Sister club limits

membership to females. According to Herbert Espiritu, the

principal at Pioneer, Big Sister Little Sister “was something

of a mentorship for [Pioneer’s] freshmen students who are

females to be mentored by . . . senior female students.” “Girl

Talk of Pioneer High School” also limited its membership to

“female students.”

C. FCA’s Derecognition

FCA clubs had been ASB-recognized at three District

high schools, including Pioneer, since the early 2000s. But

in April 2019, Pioneer social studies teacher Peter Glasser

brought a version of FCA’s Statement of Faith and Sexual

Purity Statement to Principal Espiritu’s attention,

stating

that one of Glasser’s students was “very upset about the anti-

gay prerequisites” reflected in what Glasser called FCA’s

“pledge.” Glasser asked Principal Espiritu if he could

“please discuss how to approach [FCA’s] leadership.”

Glasser explained that FCA’s viewpoint on “LGBTQ+

identity” troubled him. Principal Espiritu stated that he

would discuss the matter with administration members and

the club’s leaders.

A few days after Glasser’s email, FCA National

employee Rigo Lopez told Principal Espiritu that FCA

leaders had informed him about “conversation[s] happening

Student leaders of Pioneer FCA informed Glasser that the Statement of

Faith and Sexual Purity Statement he had obtained were not accurate

reflections of the statements used by Pioneer FCA. The documents that

Glasser obtained and forwarded to Principal Espiritu are slightly

different from the versions that FCA provided. But both versions include

FCA’s viewpoint that marriage and sexual intimacy are meant to be

between a man and a woman, which is what Glasser referred to as “anti-

gay prerequisites.”

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 65

on Pioneer’s campus right now regarding FCA’s Sexual

Purity Policy.” Lopez informed Principal Espiritu that the

policy pertained only to “those wanting to serve in a

leadership/officer capacity (student or adult) within FCA.”

Shortly thereafter, Glasser emailed Principal Espiritu

with some follow-up thoughts that Glasser had about FCA’s

views:

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 bullshit to

me. They have no validity. . . . I’m not

willing to be the enabler for this kind of

“religious freedom” anymore.

Principal Espiritu and Glasser subsequently participated

in a school leadership committee meeting where they

discussed FCA. The meeting minutes reflect that Principal

Espiritu stated the FCA “pledge” defied Pioneer’s “core

values” and that the committee needed to take a “united

stance.” Principal Espiritu subsequently consulted with

District officials, including Deputy Superintendent Stephen

McMahon, who advised that if FCA discriminated in its

leadership eligibility on the basis of sexual orientation, FCA

would be in direct violation of the District’s

nondiscrimination policy. The District’s nondiscrimination

policy prohibited discrimination based on “perceived ethnic

group, religion, gender, gender identity, gender expression,

color, race, ancestry, national origin, and physical or mental

disability, age or sexual orientation.”

66 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

In May 2019, Principal Espiritu informed Pioneer FCA’s

student leaders that FCA would no longer be an ASB-

recognized club. FCA was derecognized because the District

determined that FCA’s student leadership criteria

discriminated on the basis of sexual orientation because “a

student could not be an officer of [FCA] if they were

homosexual.”

Principal Espiritu testified that FCA can

become an ASB-recognized club again only if it does not

require its leaders to agree to abide by the Sexual Purity

Statement. And an article in Pioneer’s school newspaper

quoted Principal Espiritu as stating that FCA’s Sexual Purity

Statement “is of a discriminatory nature” and the school

“decided that we are no longer going to be affiliated with

them.”

According to some District officials, this was the first

time that the District had revoked ASB recognition for any

club. Though this was not the first time that the District had,

in its discretion, singled out groups for additional scrutiny.

There are some inconsistencies in the record regarding which specific

FCA statements factored into the District’s derecognition decision or

could factor into the District’s future decisions regarding FCA’s ASB

status. For example, Principal Espiritu testified during his deposition that

the decision was based on FCA’s Sexual Purity Statement, which was

sent to him by Glasser. But Deputy Superintendent McMahon stated

there were “multiple versions” of the Statement of Faith that he viewed

“over the course of time” and that he recalled as meaning “being

homosexual and being an officer of FCA were mutually exclusive.”

Principal Espiritu testified both that it was sufficient to deny FCA

recognition simply because the Sexual Purity Statement existed at all,

even if FCA did not require its leaders to affirm it, and that FCA may be

recognized again if it does not require its leaders to affirm the statement.

The District’s deposition testimony is that both FCA’s requirement that

its leaders affirm a belief in Christianity, and that it affirm marriage is

between a man and a woman, violate its nondiscrimination policy.

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 67

For example, Principal Espiritu testified that factors he may

look at when determining whether to grant ASB-approval to

a student group include whether the group “foster[s] a safe

sense of belonging” and whether it is something “positive”

or something “controversial.” Around 2016 or 2017,

students wanted to form a “Make America Great Again”

group. But according to Principal Espiritu, “that was a

controversial topic” at the time, so he and other school

officials approached the student leaders involved with that

group to see if “they would reconsider the name of the club

because it was creating an environment that students didn’t

feel safe here on campus.” Principal Espiritu further

explained that in identifying which groups may be deemed

“controversial,” he “rel[ies] heavily on [the] pulse of our

stakeholders, especially our students and staff, and what is

happening in the world outside of us.” As an example, he

stated that if a student group supported police officers, that

could be “controversial in 2020 or 2021” and he may have a

conversation with such a hypothetical group to see if they

“would reconsider, you know, their purpose.” Though he did

note that he also tries to rely on “District policies” and

guidance from school counsel.

Both Principal Espiritu and Pioneer Activities Director

Michelle Mayhew are responsible for overseeing and

approving ASB applications. Mayhew testified that student

leaders are in general responsible for determining a group’s

interests and purpose and are the “face of the club.” The

District also recognizes that “student leaders [are] important

for kind of setting the direction and tenor of the group,” and

that a “fairly typical manifestation of leadership of a club” is

that the leader “help[s] communicate kind of the message

and purpose of a student club.”

68 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

After FCA was derecognized, the District relegated FCA

to a made-for-FCA “student interest group” category, which

permitted FCA to advertise and meet at the school,

participate in club rush, and post flyers and announcements

on campus. But as a non-ASB-recognized club, FCA no

longer had access to ASB benefits, which include priority

access to school meeting spaces and inclusion in the

yearbook and official school-club lists. FCA was denied

ASB recognition for the 2019–2020 school year, and

students organized and held protests outside of FCA’s

meetings.

D. The District’s New Policy

In April 2020, two Pioneer FCA student leaders and FCA

National sued the District and certain school officials.

Amid—and because of—the litigation, the District adopted

a “new” non-discrimination policy. The District describes its

new policy as an “All-Comers Policy” that requires all clubs

to allow any student to become a member or leader of the

club “regardless of his or her status or beliefs.” The District

also created an “ASB Affirmation Form” that all ASB clubs

must submit. Clubs seeking ASB recognition must affirm

that they will allow any student to “seek or hold leadership

positions . . . regardless of his status or beliefs.”

The COVID-19 pandemic disrupted school activities for

the 2020–2021 school year. But in anticipation of the 2021–

2022 school year, the District trained its activities directors

and site administrators on its revised ASB-recognition

process, amended the ASB application, and created

standardized application forms and club constitutions

requiring ASB-recognized clubs to affirm that they would

abide by the District’s All-Comers Policy. All ASB-

approved clubs in 2021–2022 were supposed to sign the

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 69

affirmation agreeing to follow the All-Comers Policy and

adopt constitutions prohibiting discrimination in club

membership and leadership.

ASB clubs are expressly permitted, however, to adopt

what the District deems “non-discriminatory criteria” for

club membership and leadership. And Mayhew, who shares

responsibility for applying the All-Comers Policy with

Principal Espiritu, testified that under the All-Comers

Policy, ASB clubs may continue to limit their membership

or leadership based on various criteria, including gender

identity, age, political affiliation, or “good moral character.”

E. District Court Decision

FCA sought a preliminary injunction requiring the

District to reinstate FCA as an ASB-recognized club pending

the outcome of this litigation. The district court denied

FCA’s motion, concluding that FCA was unlikely to succeed

on the merits of its claims. Specifically, the district court

concluded that FCA was not likely to succeed on its EAA

claim because Truth v. Kent School District held that school

nondiscrimination policies are facially content neutral and

do not implicate any rights a student group “might enjoy

under the Act” “to the extent [the nondiscrimination

policies] proscribe” the group’s “general membership

restrictions.” 542 F.3d 634, 647 (9th Cir. 2008), overruled

on other grounds by Los Angeles County v. Humphries, 562

U.S. 29 (2010). The district court recognized that Truth dealt

only with membership, not leadership, restrictions. But the

district court concluded Truth nonetheless applied to FCA’s

leadership restrictions because the District’s policy was

similar to the policy at issue in Truth and because the policy

prohibits discriminatory conduct, not speech. The district

70 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

court also concluded that FCA failed to establish that the

District selectively enforces its policy.

Additionally, the district court concluded that FCA was

unlikely to succeed on its First Amendment free-speech and

freedom-of-association claims. Guided by Christian Legal

Society v. Martinez, 561 U.S. 661 (2010), and Alpha Delta

Chi-Delta Chapter v. Reed, 648 F.3d 790, 804–05 (9th Cir.

2011), the district court held that the District’s

nondiscrimination policy is reasonable in light of the

purpose of the ASB program and the policy is content and

viewpoint neutral. The district court reasoned that the

policy’s purpose is to ensure the school’s resources are

“open to all” and is therefore “unrelated to the suppression

of expression.” The district court rejected FCA’s argument

that the policy’s exceptions for non-discriminatory criteria

make it content or viewpoint based.

Finally, the district court concluded that FCA was

unlikely to succeed on its First Amendment free exercise

claim. The district court rejected FCA’s argument that, as the

Second Circuit has held, student leaders of religious student

groups are critical to controlling the expressive content of

group meetings. See Hsu v. Roslyn Union Free Sch. Dist., 85

F.3d 839, 856–62 (2d Cir. 1996). The district court found

Hsu unpersuasive, explaining that Martinez and Alpha Delta

upheld nondiscrimination policies applicable to both

members and leaders.

II. DISCUSSION

A. Standard of Review

The district court’s denial of FCA’s motion for a

preliminary injunction is reviewed for an abuse of discretion.

See S.C. by K.G. v. Lincoln County Sch. Dist., 16 F.4th 587,

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 71

591 (9th Cir. 2021). But the district court’s legal conclusions

are reviewed de novo. Sw. Voter Registration Educ. Project

v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per

curiam).

B. Equal Access Act

FCA alleges that the District violated the EAA by

refusing to recognize FCA as an official ASB club because

it requires its student leaders (but not its members) to affirm

various religious beliefs, including that marriage and sexual

intimacy are meant to be between a man and a woman. FCA

argues that the District’s application of its nondiscrimination

policy is unlawfully content-based because regulating who

can serve as a group’s leader “inescapably regulates the

content of” the group’s message. The District disagrees,

arguing that its nondiscrimination policy is neutral and

generally applicable and that Martinez forecloses this

argument.

The EAA prohibits public secondary schools that receive

federal funds and provide a “limited open forum” from

“deny[ing] equal access or a fair opportunity to, or

discriminat[ing] against, any students who wish to conduct a

meeting within that limited open forum on the basis of the

religious, political, philosophical, or other content of the

speech at such meetings.” 20 U.S.C. § 4071(a). If a school is

subject to the EAA, a plaintiff asserting a violation of the

Act must prove: “1) a denial of equal access, or fair

opportunity, or discrimination; 2) that is based on the

‘content of the speech’ at its meetings.” Truth, 542 F.3d at

645.

Congress enacted the EAA to extend to public secondary

schools the protection afforded to university students in

Widmar v. Vincent, 454 U.S. 263 (1981). See Mergens, 496

72 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

U.S. at 235. In Widmar, the Supreme Court held that a

university violated students’ right to free speech by

prohibiting them from using university facilities to engage

in “religious worship and discussion” when other student

groups were allowed to use school facilities. 454 U.S. at

269–77. Given this origin, “Congress clearly sought to

prohibit schools from discriminating on the basis of the

content of a student group’s speech,” Mergens, 496 U.S. at

241, particularly “religious speech,” id. at 239. As a result,

the Supreme Court has instructed that the EAA is to be

interpreted broadly. Id.

Even though Congress was motivated to enact the EAA

by the Court’s analysis of the First Amendment right to free

speech, First Amendment jurisprudence informs, but does

not govern, EAA claims. That is, the First Amendment and

the EAA are not coextensive. For example, the limited-

public-forum doctrine applies in determining whether a

school has an obligation to grant the full benefits of club

recognition to a student group under the First Amendment.

See Martinez, 561 U.S. at 680–85. But Congress used a

different standard in the EAA—“limited open forum”—

which it uniquely defined. See Mergens, 496 U.S. at 241–42;

see also 20 U.S.C. § 4071(b). Courts must apply Congress’s

definition when deciding claims brought under the EAA. See

Mergens, 496 U.S. at 241–42.

Additionally, under the First Amendment, if a school has

provided a limited public forum, a restriction on speech is

invalid only if it: (1) is unreasonable in light of the “forum’s

function and ‘all the surrounding circumstances,’” or (2)

discriminates based on viewpoint. See Martinez, 561 U.S. at

685 (citation omitted). But a school subject to the EAA is

categorically prohibited from discriminating based on the

content of a group’s speech, regardless of whether the

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school’s policy or regulation is reasonable. See 20 U.S.C. §

4071(a) (providing, without exception, that a school may not

deny equal access “on the basis of the . . . content of the

speech at [club] meetings”); see also Mergens, 496 U.S. at

236, 241 (explaining that where obligations under the EAA

are triggered, “the school may not deny . . . clubs, on the

basis of the content of their speech, equal access,” and to

avoid its EAA obligations, a school may either close the

forum or reject federal funding). And content discrimination

(the EAA’s standard) and viewpoint discrimination (the First

Amendment standard) are not the same thing. See Reed v.

Town of Gilbert, 576 U.S. 155, 169 (2015) (“[A] speech

regulation targeted at specific subject matter is content based

even if it does not discriminate among viewpoints within that

subject matter.”).

In this case, the parties agree that the EAA applies and

that the ASB program constitutes a “limited open forum”

under the Act. Thus, in determining whether FCA is likely

to succeed on its EAA claim, we must decide whether the

District (1) denied FCA equal access, (2) “based on the

‘content of [FCA’s] speech.’” Truth, 542 F.3d at 645.

1. Equal Access

Whether the District denied FCA equal access is easily

resolved. A student club is denied equal access within the

meaning of the EAA when it is denied the benefits of official

recognition and other clubs are receiving those benefits. See

Mergens, 496 U.S. at 247; see also Prince v. Jacoby, 303

F.3d 1074, 1086–87 (9th Cir. 2002) (discussing Mergens and

holding that “to the extent that [a] school allows ASB clubs

[certain benefits], it cannot then discriminate against . . .

clubs that seek the same [benefits]”). Here, it is undisputed

that the District denied—and intends to continue to deny—

74 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

ASB recognition to FCA because of its faith-based eligibility

criteria for its student leaders. This is a denial of equal access

under the EAA. See Mergens, 496 U.S. at 247. The District

does not argue otherwise, focusing only on whether its

application of its nondiscrimination policy

is content based.

2. Content-Based Regulation

Now we get to the heart of the matter: did the District

deny FCA equal access because of the “content of [FCA’s]

speech”? See 20 U.S.C. § 4071(a).

The EAA does not define “content of the speech.” See

id.; see also Truth, 542 F.3d at 645. But “that phrase has a

particular meaning in First Amendment jurisprudence.”

Truth, 542 U.S. at 645. As discussed, First Amendment

jurisprudence is a useful tool in this part of the EAA analysis

given that the EAA “extended the reasoning” of one of the

Supreme Court’s First Amendment free-speech cases. See

Mergens, 496 U.S. at 235; see also Truth, 542 F.3d at 645–

46 (explaining that “[w]here there may be uncertainty

[regarding the meaning of the EAA], . . . we rely on . . . cases

deciding analogous issues under the First Amendment”); see

also Hsu, 85 F.3d at 855–57 (adopting a similar approach,

reasoning that “since the Act creates an analog to the First

Amendment’s default rule banning content-based speech

discrimination, cases discussing the meaning of ‘speech’ in

First Amendment jurisprudence are also interpretive tools

for understanding the Act”).

Looking to the First Amendment, then, under the Free

Speech Clause a regulation or policy is content based where

As the court explains, the “new” All-Comers Policy and the previous

nondiscrimination policy are indistinguishable for purposes of analyzing

the merits of FCA’s claims.

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it “applies to particular speech because of the topic discussed

or the idea or message expressed.” Reed, 576 U.S. at 163. A

policy may be content based where the policy itself contains

content-based distinctions or because the policy cannot be

justified without reference to speech content. See id. at 163–

64. Discrimination against a specific subject matter “is

content based even if it does not discriminate among

viewpoints within that subject matter.” Id. at 169. In other

words, the government may not “single[] out specific subject

matter for differential treatment, even if it does not target

viewpoints within that subject matter.” Id. For example, the

Supreme Court in Reed held that a sign regulation was

content based because it defined various categories of signs

based on the type of information they conveyed and

subjected each category to different treatment. Id. at 164.

The Court explained that this scheme was facially content

discriminatory because determining which regulation

applied “depend[ed] entirely on the communicative content

of the sign.” Id.

The District argues that its nondiscrimination policy is

not content based because it prohibits conduct, not speech.

In making this distinction, it relies primarily on Martinez,

where the Court stated that an all-comers policy “aim[ed] at

the act of rejecting would-be group members without

reference to the reasons motivating that behavior” and that

the school’s “desire to redress the perceived harms of

exclusionary membership policies provide[d] an adequate

explanation for its all-comers condition over and above mere

disagreement with any student group’s beliefs or biases.”

561 U.S. at 696 (alterations adopted) (internal quotation

marks and citation omitted). This discussion in Martinez is

not controlling here for at least two reasons.

76 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

First, Martinez’s conclusion that the policy at issue in

that case was content neutral was based on a factual

stipulation the parties entered into that was different from the

policy language itself. See id. at 675–76; see also id. at 707,

715 (Alito, J., dissenting) (explaining that Martinez failed to

“address the constitutionality of the very different policy that

Hastings invoked when it denied CLS’s application for

registration” by relying on the joint stipulation). Like here,

the school policy as written prevented discrimination based

on certain categories such as race, religion, disability, age,

and sexual orientation. Id. at 670–71, 675. But the parties

stipulated that the school did not have just a

nondiscrimination policy, it had an all-comers policy,

because the school “require[d] that registered student

organizations allow any student to participate, become a

member, or seek leadership positions in the organization,

regardless of [her] status or beliefs.” Id. at 675 (second

alteration in original); see also id. at 676–78. The Court

specifically noted that the school did “not pick and choose

which organizations must comply with the [all-comers]

policy on the basis of viewpoint,” id. at 695 n.25, and that it

was “hard to imagine a more viewpoint-neutral policy than

one requiring all student groups to accept all comers,” id. at

694. The Court therefore concluded that it was appropriate

to disregard prior cases where schools “singled out

organizations for disfavored treatment because of their

points of view.” Id. at 694.

Those are not the facts on the ground here. District

officials do pick and choose which clubs must comply with

the policy and which clubs are exempted from the policy

based on the nature and content of the clubs’ selection

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criteria.

See Reed, 576 U.S. at 163–64 (holding that a

regulation is content based where it subjects different

“categories to different restrictions”). Pioneer’s Activities

Director testified that ASB clubs could limit their

membership based on some discriminatory criteria,

including gender identity, age, political affiliation, and

“moral character.” And this is not just a theoretical

possibility—school officials across the District did exercise

their discretion to effectively grant exemptions to some clubs

based on these criteria. For example, the District recognized

the South Asian Heritage club as an ASB club despite that

club stating it would “prioritize” acceptance of South Asian

members. And the Senior Women club was recognized even

though its membership was limited to “seniors who identify

as female.” Likewise, the Big Sister Little Sister’s club

constitution limited membership to females but was

nonetheless ASB-recognized because, according to

Principal Espiritu, “it was something of a mentorship for our

freshman students who are females to be mentored by . . .

senior female students.” “Girl Talk of Pioneer High School”

was also ASB recognized despite its club constitution stating

that membership was limited to “female students.”

Likewise, the record shows that clubs the District deems

“controversial” are singled out for closer scrutiny or—in

FCA’s case—outright denial of ASB approval. Students

seeking to form a “Make America Great Again” club were

confronted by District officials asking them to reconsider the

As discussed below, there are numerous examples in the record

evincing the District’s past and likely future selective enforcement. The

record therefore does not support the district court’s finding to the

contrary, rendering the district court’s finding clear error. See All. for the

Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (discussing

standard of review).

78 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

club name because in the District’s view, “it was creating an

environment that students didn’t feel safe” in and because

the District considers whether a group is “something

positive” when determining whether to approve it. Principal

Espiritu further explained that he may discourage other

“controversial” clubs. For example, he testified that if

students wanted to form a club supporting police officers, he

may speak to them about “reconsider[ing] . . . their purpose”

given recent controversy surrounding that issue.

The District’s All-Comers Policy allows student groups

to adopt what the District considers to be “non-

discriminatory criteria regarding being a member [or]

leader.” “The restrictions in the [District’s policy] that apply

to any given [leadership criteria] thus depend entirely on

the” content of the criteria, Reed, 576 U.S. at 164, which is

fundamentally different than the stipulated categorical all-

comers policy at issue in Martinez. Affinity-affiliation

requirements may be fine, but FCA’s faith-based

requirement is not. This is textbook content discrimination.

See id. For this reason, different than in Martinez, where the

school did “not pick and choose which organizations must

comply with the policy,” 561 U.S. at 695 n.25, disregarding

cases addressing schools that “singled out organizations for

disfavored treatment because of their points of view,” id. at

694, is not appropriate here.

As the court concludes, our holding in Alpha Delta that a policy is

content neutral so long as the purpose of the policy alone has a benign

motive, 648 F.3d at 801, is inconsistent with Reed, 576 U.S. 155, and is

no longer good law. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

2003) (en banc), overruled on other grounds by Sanchez v. Mayorkas,

141 S. Ct. 1809 (2021).

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Second, the religious club in Martinez imposed faith-

based criteria for both members and leaders. Id. at 672–73.

The Court focused its viewpoint- and content-neutrality

analysis on open membership; it did not address the

relevance of ideology-based leadership criteria.

See id. at

694–97. But here, FCA imposes faith-based requirements

only on its student leaders; membership in FCA is open to

all. This is a distinction with a difference—regulating who

can lead and speak for a group uniquely impacts the group’s

operation and speech. And the Court’s failure to grapple with

the implications of leadership criteria indicates that it did not

consider that issue. See id. at 678–97.

Martinez did reject concerns that a student club could be

vulnerable to “hostile takeovers” if they “must open their

arms to all,” reasoning that students self-select based on their

interests and would “not endeavor en masse to join—let

alone seek leadership positions in—groups pursuing

missions wholly at odds with their personal beliefs.” Id. at

692–93. The Court’s discussion of this issue relates to

membership criteria, which, again, is not at issue here. But

to the extent it is relevant, whether a group is at risk of a

“hostile takeover” if it cannot control who serves as its

leader is different from whether the group’s ability to control

the content of its speech is undermined as a general matter.

The Constitution’s concern about content-based regulation

and limiting an expressive group’s ability to choose its

leader is not limited to complete frustration of expression, as

The Court did not even reference the Second Circuit’s decision in Hsu,

which concluded that a school’s decision to deny recognition to a

religious club was based on the club’s speech content, where the club

imposed religious requirements only on its officers, 85 F.3d at 856–59.

80 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

evidenced by several of the Court’s First Amendment cases

arising in varied contexts.

For example, in Hurley v. Irish–American Gay, Lesbian

& Bisexual Group of Boston, the Court recognized that

expressive groups have a right to control the content of their

expression. 515 U.S. 557 (1995). There, the organizers of a

St. Patrick’s Day parade were prohibited from excluding an

Irish gay pride group based on a state nondiscrimination law,

which the Court held was a violation of the First

Amendment. Id. at 561–66, 572–75. The Court reasoned that

the ability to select which groups march in a parade impacts

the overall message of the parade—in other words, the

parade organizers’ speech. See id. at 574–75. Thus, applying

an antidiscrimination law to prevent the organizers from

limiting who could participate in the parade “essentially

require[d] [the organizers] to alter the expressive content of

their parade.” Id. at 572–73.

This concern about the ability to control the content of

one’s speech is particularly consequential where

government regulation impacts who an ideological group

can select as its leader. It is axiomatic that “[w]ho speaks on

[a group’s] behalf . . . colors what [message] is conveyed.”

Martinez, 561 U.S. at 680; see also Reed, 576 U.S. at 170

(explaining that speaker-based restrictions “are all too often

simply a means to control content”). And the Supreme Court

has recognized this in more than one context.

A pair of First Amendment right-of-association cases

demonstrate that ideological leadership restrictions, more

than membership restrictions, govern the content of a

group’s speech. In Roberts v. United States Jaycees, the

Court addressed whether prohibiting the Jaycees from

excluding female members under a state nondiscrimination

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law violated the group’s right of association. 468 U.S. 609

(1984). The Court recognized that prohibiting a group from

limiting who can be a member of the group “may impair the

ability of the original members to express only those views

that brought them together.” Id. at 623. But nonetheless, the

Court held that the state’s “compelling interest in eradicating

discrimination against its female citizens justifie[d] the

impact that application of the statute to the Jaycees may have

on the male members’ associational freedoms.” Id. But in

Boy Scouts of America v. Dale, the Court addressed whether

a state nondiscrimination law could prohibit the Boy Scouts

from refusing to accept homosexual assistant scoutmasters.

530 U.S. 640 (2000). The Court concluded that requiring the

Boy Scouts to accept homosexual assistant scoutmasters

“significantly burden[ed] the Boy Scouts’ desire to not

‘promote homosexual conduct as a legitimate form of

behavior’” and violated its right to expressive association.

Id. at 653–659. The Boy Scouts’ ability to disseminate its

chosen message was affected by regulation of who it must

accept as leaders because “the First Amendment protects the

Boy Scouts’ method of expression,” including its desire that

its “leaders . . . avoid questions of sexuality and teach only

by example” by embodying the Boy Scouts’ values in their

own life. Id. at 655 (emphases added).

An obvious distinction between Roberts and Boy Scouts

of America is that the latter dealt with regulation of the

group’s leadership and the former dealt only with regulation

of a group’s membership. Indeed, this distinction was well

articulated by Judge Landau of the New Jersey Court of

Appeals in Boy Scouts of America before the case reached

the Supreme Court. Judge Landau noted that the case

presented “two separate issues, restriction of membership

and restriction of leadership,” and that by forcing the Boy

82 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

Scouts to allow homosexuals “to serve as . . . volunteer

leader[s], we force them equally to endorse [such leader’s]

symbolic, if not openly articulated, message.” Dale v. Boy

Scouts of Am., 308 N.J. Super. 516, 562–63 (App. Div. 1998)

(Landau, J., concurring and dissenting) (emphases added).

The influence that group leaders have on the content of

the group’s expression was also recognized by the Court in

its adoption of the ministerial exception, which prevents

generally applicable employment-discrimination laws from

governing “the employment relationship between a religious

institution and its ministers.” Hosanna-Tabor Evangelical

Lutheran Church and Sch. v. EEOC, 565 U.S. 171, 188

(2012). In Hosanna-Tabor, a teacher at a Lutheran church-

operated school and the Equal Employment Opportunity

Commission brought a disability-discrimination lawsuit

after she was terminated. Id. at 178–80. The church invoked

the ministerial exception and argued that the suit was barred

by the First Amendment because it concerned an

employment relationship between a religious institution and

its minister. Id. at 180. Detailing the historical backdrop

leading to adoption of the First Amendment’s Religion

Clauses, the Court explained that these provisions “ensured

that the new Federal Government—unlike the English

Crown—would have no role in filling ecclesiastical offices.”

Id. at 182–84. “The Establishment Clause prevents the

Government from appointing ministers, and the Free

Exercise Clause prevents it from interfering with the

freedom of religious groups to select their own.” Id. at 184.

The Court therefore concluded that the ministerial exception,

rooted in the Religion Clauses, applied to bar the teacher’s

lawsuit because she was held out as a minister and her job

duties included communicating religious ideology, and the

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church had constitutionally protected autonomy to select its

own ministers. Id. at 190–94.

Following this decision, in Our Lady of Guadalupe

School v. Morrisey-Berru the Court rejected a rigid

application of the factors it had identified in Hosanna-Tabor

for determining who qualifies as a “minister” under the

ministerial exception because “[w]hat matters, at bottom, is

what [the individual] does.” 140 S. Ct. 2049, 2064 (2020).

The Court explained that control over religious leadership is

vital because without it, “a wayward minister’s preaching,

teaching, and counseling could contradict the church’s tenets

and lead the congregation away from the faith.” Id. at 2060.

Because religious expression and exercise can be

manipulated or wholly undermined by those directing the

group’s activity, any attempt “even to influence” who serves

in such roles runs afoul of the Constitution. See id. (emphasis

added).

I do not suggest that right-of-association or ministerial-

exception cases directly control whether the District’s

actions in this case are content based for purposes of the

EAA. But First Amendment jurisprudence is a useful tool in

this context. See Truth, 542 U.S. at 645. And the principles

discussed in these cases about the influence of leaders in

expressive groups are not inherently limited to the specific

contexts in which they arose. Taking a holistic view of the

Court’s decisions in this area, two relevant principles

emerge. First, a policy that regulates based on subject matter

is content based. See Reed, 576 U.S. at 163–64. And second,

an ideological group’s ability to control who can serve as its

leader and speak on its behalf directly correlates to the

content of the group’s speech. See Hurley, 515 U.S. at 572–

75 (requiring parade organizers to include certain marchers

in the parade infringed on group’s ability to control its

84 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

message and therefore violated the group’s First

Amendment rights); see also Boy Scouts of Am., 530 U.S. at

653–56 (holding that requiring Boy Scouts to accept a gay

assistant scoutmaster would “interfere with the Boy Scouts’

choice not to propound a point of view contrary to its

beliefs”); Our Lady of Guadalupe, 140 S. Ct. at 2060

(explaining that a religious group’s ability to communicate

its message and maintain its mission depends on its ability

to select its ministers without state interference). Thus, it is

not a leap to conclude that regulating a group’s ability to

impose belief-based or ideology-based eligibility criteria

specifically for its leaders is a content-based restriction. See

Reed, 576 U.S. at 170 (“Speech restrictions based on the

identity of the speaker are all too often simply a means to

control content.” (alteration and citation omitted)).

Applying these principles to the present case

demonstrates that the District’s actions are content based

because it refuses to recognize FCA as an ASB club because

FCA requires its student leaders to subscribe to specific

religious beliefs. The responsibility of student-club leaders

generally is significant because ASB clubs must be student-

initiated and their meetings may not be run or controlled by

school employees or agents. But these responsibilities are

even more pronounced in religious clubs, because while

ASB clubs have faculty advisors, faculty involvement in

religious clubs is limited to “a non-participatory capacity.”

See 20 U.S.C. § 4071(c)(3) (“[E]mployees or agents of the

school or government [may be] present at religious meetings

only in a nonparticipatory capacity”); see also Hsu, 85 F.3d

at 861 (explaining that because of this provision in the EAA,

“political clubs and chess clubs may have faculty sponsors

to promote institutional stability, help guarantee that new

leaders are committed to the club’s cause, and ensure that the

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 85

club remains true to its purpose, [but] religious clubs do not

have that protection”).

Specific to FCA, student leaders are responsible for

“lead[ing] and participat[ing] in prayer, worship, and

religious teaching,” “help[ing] decide the content of

meetings,” “select[ing] guest speakers and identify[ing]

religious topics to cover,” and “communicat[ing] FCA’s

message when interacting with administrators, staff, faculty,

and students at their schools.” Of course, given that these

responsibilities are tied to FCA’s expression, FCA requires

students wanting to perform these functions to affirm

agreement with FCA’s religious tenets and agree to hold

themselves “to a higher standard of biblical lifestyle and

conduct” and “do their best to live and conduct themselves

in accordance with biblical values.” Cf. Boy Scouts of Am.,

530 U.S. at 649 (explaining that Boy Scout values found in

the Scout Oath included “[t]o do my duty to God and my

country” and “[t]o keep myself . . . morally straight”).

Likewise, FCA’s requirement that its student leaders “not . .

. subscribe to or promote any religious beliefs inconsistent

with [FCA’s] beliefs” clearly correlates to FCA’s ability to

fulfill its purpose—ministry. Cf. id. at 655 (“[T]he First

Amendment protects the Boy Scouts’ method of

expression,” including by having Scout leaders “avoid

questions of sexuality and teach only by example[.]”).

FCA’s student leaders directly govern operation of the club

and the content of its expression, and FCA’s faith-based

student-leadership requirement is intended to preserve “the

content and credibility of [FCA’s] religio[us] message.” See

Hosanna-Tabor, 565 U.S. at 201 (Alito, J., concurring).

The District refused to recognize FCA as an ASB club

because it believes FCA’s faith-based leadership criteria

violate the District’s policy preventing discrimination based

86 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

on sexual orientation. The District’s argument that it is

regulating FCA’s discriminatory actions, not its beliefs and

speech related to homosexuality, falls flat. FCA membership

is open to all, and the District concedes that “student leaders

[are] important for . . . setting the direction and tenor of the

group” and that student leaders “help communicate . . . the

message and purpose of a student club.” In arguing that its

application of its nondiscrimination policy is content neutral,

the District ignores, or deems irrelevant, the reality (which it

accepts) that influencing who leads an expressive group

necessarily influences the expression of the group. And

applicable here, the Supreme Court has aptly noted that “a

wayward minister’s preaching, teaching, and counseling”

could undermine a religious group’s “tenets and lead the

congregation away from the faith.” Our Lady of Guadalupe

140 S. Ct. at 2060.

This point was further pressed by amici in this case. The

Jewish Coalition for Religious Liberty explained that a

religious group’s leaders may help fulfill the group’s

purpose by, for example, ensuring that religiously acceptable

food is served or ensuring proper observance of religious

rituals and holidays. See Brief of the Jewish Coalition for

Religious Liberty as Amicus Curiae in Support of Plaintiffs-

Appellants, Dkt. No. 114, at 4, 14–19. This amicus further

notes that not only is selecting a leader who follows the

tenets of the religion necessary to ensuring that the group

properly observes its religious traditions and practices, it

also impacts the group’s ability to attract additional

members. See id. at 12, 16. Professor Michael McConnell

further explains that Christian students looking to practice

their faith and find religious mentorship would not be

attracted to a Christian student group led by an atheist. See

Brief for Amicus Curiae Professor Michael W. McConnell

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 87

in Support of Plaintiffs-Appellants, Dkt. No. 117, at 12. The

same would be true for any other ideological group.

Preventing a group formed around an ideology from

requiring its leaders to espouse the group’s ideology is a

content-based regulation because it undermines the group’s

ability to control its identity and messaging, i.e., its speech.

This court has already recognized that leadership

selectivity is “readily distinguishable” from membership

selectivity. See Truth, 542 F.3d at 647. In Truth, we held that

the key feature distinguishing that case from Hsu was that

the club at issue in Truth restricted “general membership.”

See id. The Second Circuit in Hsu had held that plaintiffs

were likely to prevail on their EAA claim where the school

refused to recognize a religious club that required only its

officers to be “professed Christians” because it violated the

school’s nondiscrimination policy. 85 F.3d at 849, 859–62.

Hsu rejected the argument that the school’s refusal to

recognize the club was based on the club’s “‘act’ of

excluding non-Christians from leadership” because

restricting “people of other religions from conducting its

meetings” was a choice the club made to “protect the

expressive content of the meetings.”

Id. at 856–59.

We have not previously confronted a case like this or like

Hsu where a student club discriminates only in its leadership

eligibility. See Truth, 542 F.3d at 647 (distinguishing Hsu

because “we [we]re only concerned with [plaintiff]’s

Hsu reasoned that the leadership requirement was “defensible” only to

club officers whose duties related to running the club’s “programs” such

as “leading Christian prayers and devotions,” including the “President,

Vice-President, and Music Coordinator of the club.” Id. at 858. Even

accepting that limitation, FCA’s leadership eligibility criteria is

defensible because, as discussed, FCA leaders are tasked with overseeing

all aspects of the club’s meetings and its worship activities.

88 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

general membership requirements”); see also Alpha Delta,

648 F.3d at 795–96 (addressing claims by group that

required its “members and officers profess a specific

religious belief” (emphasis added)). With this narrower issue

now squarely before us, I would join the Second Circuit and

conclude that when a school applies its nondiscrimination

policy to a student club that limits only who can serve as a

club leader because of the club’s ideological leadership

criteria, such application is impermissibly content based. See

Hsu, 85 F.3d at 856–59.

In sum, this case does not involve a categorical all-

comers policy like that at issue in Martinez, and First

Amendment jurisprudence establishes that regulating who

can serve as the leader of ideological groups directly

implicates the content of the group’s speech. Thus, FCA is

likely to succeed in establishing that the District denied FCA

equal access to the ASB program because of the content of

FCA’s speech in violation of the EAA.

C. First Amendment Free Speech

Because FCA is likely to succeed on its EAA claim,

there is no need to address any of its constitutional claims.

See Mergens, 496 U.S. at 247 (holding that where a case can

be decided under the EAA, a court need not decide whether

the First Amendment “requires the same result”); see also

Blum v. Bacon, 457 U.S. 132, 137 (1982) (“[O]rdinarily we

first address the statutory argument in order to avoid

unnecessary resolution of the constitutional issue.”). But

where First Amendment free-speech jurisprudence informs

the EAA analysis and the analyses of these two claims is

similar, I briefly address the constitutional claim.

“The framers designed the Free Speech Clause of the

First Amendment to protect the ‘freedom to think as you will

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 89

and to speak as you think.’” 303 Creative LLC v. Elenis, 143

S. Ct. 2298, 2310 (2023) (citing Boy Scouts of Am., 530 U.S.

at 660–61). The First Amendment’s speech “protections

belong to all, including to speakers whose motives others

may find misinformed or offensive.” Id. at 2317; see also id.

at 2312. The Supreme Court has thus espoused a

“commitment to protect[] the speech rights of all comers, no

matter how controversial—or even repugnant—many may

find the message.” Id. at 2320. And it has “recognized that”

antidiscrimination laws are not “immune from the demands

of the Constitution,” however noble the goals of such laws

may be. Id. at 2315.

As discussed above, First Amendment free-speech and

freedom-of-expressive-association challenges related to

regulation of student-run clubs are analyzed under the

Supreme Court’s limited-public-forum doctrine. See

Martinez, 561 U.S. at 679–80. Under this framework, a

policy or regulation is permissible if it is (1) reasonable in

light of the forum’s function and surrounding circumstances,

and (2) viewpoint neutral. Id. at 685. I address only the

second issue.

The government engages in viewpoint discrimination

where it targets “not subject matter, but particular views

taken by speakers on a subject.” Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). In other

words, viewpoint discrimination is a “blatant” or “egregious

form of content discrimination.” Id. A law disfavoring ideas

or messages the government finds offensive is viewpoint

90 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

discriminatory. Iancu v. Brunetti, 139 S. Ct. 2294, 2299–301

(2019).

For example, in Rosenberger, the founder of a magazine

with a “Christian viewpoint” brought a First Amendment

free speech claim against the University of Virginia after it

declined to provide student-activity-fee funding to the

publication because it was a “religious activity” not entitled

to such funding under the University’s guidelines. 515 U.S.

at 823–27. The Supreme Court held that the funding denial

was impermissible viewpoint discrimination because the

University selected “for disfavored treatment those student

journalistic efforts with religious editorial viewpoints.” Id. at

831. The Court further explained that “[r]eligion may be a

vast area of inquiry, but it also provides, as it did here, a

specific premise, a perspective, a standpoint from which a

variety of subjects may be discussed and considered. The

prohibited perspective, not the general subject matter,

resulted in the [funding] refusal.” Id. And in Iancu, the Court

held that the Lanham Act’s prohibition against registering

“immoral or scandalous” trademarks was viewpoint

discriminatory because it “allow[ed] registration of

[trade]marks when their messages accord[ed] with, but not

when their messages def[ied], society’s sense of decency or

propriety,” and distinguished between ideas “inducing

Further, the government may engage in viewpoint discrimination where

it selectively enforces a neutral policy or law because it disagrees with a

message being expressed; choosing not to apply the policy to one view,

while using it to “silenc[e] another is quintessential viewpoint

discrimination.” Frederick Douglass Found., Inc. v. D.C., ___ F.4th ___,

No. 21-7108, 2023 WL 5209556, at *10 (D.C. Cir. Aug. 15, 2023); see

also Truth, 542 F.3d at 650–51 (recognizing that a facially neutral policy

may violate the First Amendment where it is selectively applied).

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societal nods of approval and those provoking offense and

condemnation.” 139 S. Ct. at 2300.

Considering these precedents, the District’s selective

application of its nondiscrimination policy is viewpoint

discriminatory. Some clubs, like the Big Sister Little Sister’s

club, were allowed to impose discriminatory criteria where

they were seen positively as “something of a mentorship.”

This remained true even after the District adopted is “All-

Comers Policy”—the Senior Women club was granted ASB

recognition even though it limits it members based on gender

and age. But FCA was not recognized because its faith-based

leadership criteria were viewed as nefarious. See

Rosenberger, 515 U.S. at 831 (holding a school’s actions

were viewpoint discriminatory where a student group was

denied funding based on having a “prohibited perspective”).

This is evidenced by, among other things, Glasser’s

statement to Principal Espiritu that the views expressed in

FCA’s Sexual Purity Statement “[we]re bullshit to” him, and

Principal Espiritu stating that FCA’s Sexual Purity

Statement defied Pioneer’s “core values” and Pioneer

needed to take a “united stance” against such views. See id.

And Principal Espiritu’s approach to managing student clubs

indicates viewpoint discrimination occurred where he

described that he had and would continue to single out clubs

with a purpose he deemed “controversial.”

In short, the record presented here indicates that the

District is impermissibly picking and choosing which

viewpoints are acceptable and which are not under the

pretext of prohibiting “discriminatory acts.” See id. (holding

that a school may not select a student group “for disfavored

treatment” because of the group’s viewpoint); cf. Martinez,

561 U.S. at 695 n.25 (concluding that viewpoint

discrimination was not an issue where the school did not

92 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

“pick and choose which organizations must comply with the

policy”). Thus, FCA is likely to succeed in showing that the

District has selectively enforced its policy against FCA and

may continue to selectively enforce its policy against FCA

and other clubs whose messages the District determines

“provok[e] offense and condemnation,” Iancu, 139 S. Ct. at

2300, but not against clubs whose views “accord with” and

do not “defy, [the District’s] sense of decency or propriety,”

id.

III. CONCLUSION

The height of irony is that the District excluded FCA

students from fully participating in the ASB program in the

name of preventing discrimination to purportedly ensure that

all students feel welcome. In doing so, the District

selectively enforced its nondiscrimination policy to benefit

viewpoints that it favors to the detriment of viewpoints that

it disfavors. The suggestion that Martinez’s approval of a

true all-comers policy applies here is therefore baseless.

Moreover, the District targeted the content of FCA’s speech

by excluding FCA from equal participation in the ASB

program because FCA requires student leaders—who

implement FCA’s ministry purpose—to affirm specific

religious beliefs. FCA has met all the elements for obtaining

a preliminary injunction, and the district court erred in

concluding otherwise.

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M. SMITH, Circuit Judge, concurring in part and dissenting

in part, with whom Chief Circuit Judge MURGUIA and

Circuit Judge SUNG join with respect to Part II:

I agree that the plaintiffs are entitled to a preliminary

injunction because the District treats religious activities

differently than secular ones, in violation of the Supreme

Court’s decision in Tandon v. Newsom, 141 S. Ct. 1294

(2021) (per curiam). I write separately because the majority

opinion sweeps well beyond what is needed to resolve this

case and imprudently addresses open questions of law upon

an underdeveloped, preliminary-injunction record—even

though doing so has no impact on the relief to which the

plaintiffs are entitled. Separately, I dissent as to the

majority’s holding that plaintiffs would be likely to succeed

on a facial challenge to the District’s all-comers policy under

the Free Speech Clause.

This case has an unusual posture for an en banc decision:

We are tasked only with determining whether, at this early

stage of the litigation, the plaintiffs are entitled to a

preliminary injunction. To do so, we need only determine

that they are likely to prevail on one of their claims. All. for

the Wild Rockies v. Cottrell, 632 F.3d 1127, 1139 (9th Cir.

2011) (“not reach[ing]” the plaintiff’s remaining claims after

finding a likelihood of success on the first).

This is a clear-cut differential-treatment case. Religion-

burdening government action is subject to strict scrutiny

“whenever [it] treat[s] any comparable secular activity more

favorably than religious exercise.” Tandon, 141 S. Ct. at

1296. As both the en banc majority and panel majority

explain, it is apparent from the record before us that the

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District treated similarly situated secular student

organizations “more favorably than” FCA without a

compelling reason to do so. See Majority Opinion V.B;

Fellowship of Christian Athletes v. San Jose Unified Sch.

Dist. Bd. of Educ., 46 F.4th 1075, 1092–98 (9th Cir. 2022)

(vacated). Accordingly, I would stop my analysis there—

since that conclusion is sufficient to support a preliminary

injunction. The en banc majority goes on, however, to

decide several open questions of law even though doing so

is unnecessary to resolve this case.

First, the majority opinion holds in Section V.A that

pursuant to Fulton v. City of Philadelphia, 141 S. Ct. 1868

(2021), an alleged practice of—as opposed to a “formal

mechanism” for—providing individualized exemptions for

secular activities is sufficient to trigger strict scrutiny. In

Fulton, the Court examined “a contractual provision that

prohibited adoption agencies from discriminating against

prospective adoptive parents . . . ‘unless an exception is

granted by the Commissioner . . . in his/her sole discretion.’”

Tingley v. Ferguson, 47 F.4th 1055, 1088 (9th Cir. 2022)

(quoting Fulton 141 S. Ct. at 1878). The Court held that

“[t]he creation of a formal mechanism for granting

exceptions renders a policy not generally applicable” and

therefore subject to strict scrutiny. Fulton, 141 S. Ct. at

1879.

Interpreting Fulton, a panel of our court rejected its

application in a case where it found no “formal mechanism”

for exceptions existed, because there was no “provision in

the [applicable] law” for such exceptions. Tingley, 47 F.4th

at 1088. Now the majority concludes that Fulton applies to

this case, even though there are no provisions about

exceptions in either the nondiscrimination or all-comers

policies, and without analyzing the District’s written equity

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policy. In so doing, the majority seemingly overrules

Tingley’s text-based approach sub silentio.

Second, the majority opinion holds in section V.C that

Masterpiece Cakeshop statement-based claims are

cognizable beyond the formal adjudication context in which

that case arose. See Masterpiece Cakeshop, Ltd. v. Colo.

C.R. Comm’n, 138 S. Ct. 1719, 1730 (2018) (“[T]he remarks

were made . . . by an adjudicatory body deciding a particular

case”). Again, in Tingley, we were careful to note that

Masterpiece Cakeshop encompassed only those comments

made by members of a formal, adjudicatory body. See

Tingley, 47 F.4th at 1086–87. Here, the panel expands the

reach of Masterpiece Cakeshop despite acknowledging that

“none of the[] statements [at issue here] were made during

an actual adjudication,” but are nonetheless worth evaluating

for hostility—again sub silentio overruling Tingley. Worse

yet, it does so on a preliminary-injunction record, and while

acknowledging that “there is some confusion” at this stage

of the litigation as to who the decisionmakers behind FCA’s

derecognition were—because “the district court made no

findings in this regard.” Indeed, the words Masterpiece

Cakeshop never even appear in the district court’s order

because it never addressed that claim in the first place.

I express no view on the merits of these holdings;

instead, I balk at reaching these issues in the first place.

Given the amount of our court’s resources that go into

hearing a case en banc, I understand the impulse to want to

make more of a case than is required. But even when sitting

en banc, our role is limited to adjudicating the issues

necessary to resolving the disputes before us—and I believe

we should resist the siren song beckoning us to do otherwise.

In deciding whether the plaintiffs are entitled to a

96 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

preliminary injunction in this case, I would reverse the

district court only on Tandon differential-treatment grounds.

II.

Though the body of the majority’s opinion focuses on

Free Exercise issues, in a footnote, the majority also holds

that plaintiffs are likely to succeed on their Free Speech

claim. Although the footnote does not distinguish between

facial and as-applied challenges, it can only be read to hold

that plaintiffs are likely to succeed on a facial challenge—a

conclusion with which I respectfully disagree.

Footnote eight states that plaintiffs are likely to succeed

because Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d

790 (9th Cir. 2011), has been abrogated by Reed v. Town of

Gilbert, 576 U.S. 155 (2015). In Alpha Delta, we held that

a nondiscrimination policy, as written, did not discriminate

on viewpoint in part because it was not implemented “for the

purpose of suppressing Plaintiffs’ viewpoint.” 648 F.3d at

801. Then in Reed, the Supreme Court held that “the

government’s benign motive, content-neutral justification,

or lack of ‘animus toward the ideas contained’ in the

regulated speech”—i.e., its purpose for a regulation—cannot

shield it from strict scrutiny if it is “content based on its

face.” 576 U.S. at 165. Therefore, according to the majority,

“even if the District were correct that there was no intent to

suppress FCA’s religious viewpoint . . . the District’s intent

is irrelevant in the Free Speech analysis.”

The majority, however, never holds that the all-comers

policy in this case (or for that matter, the nondiscrimination

policy in Alpha Delta) is “content based on its face,” like the

policy in Reed was. See Reed, 576 U.S. at 166 (“[W]e have

repeatedly considered whether a law is content neutral on its

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face before turning to the law’s justification or purpose.”)

(emphasis in original).

Moreover, the majority ignores a Supreme Court

decision that rejected a free speech facial challenge to an all-

comers policy very similar to the one in this case. In

Christian Legal Society v. Martinez, 561 U.S. 661 (2010),

the Supreme Court explained that the proper framework for

assessing restrictions in limited public forums is to

determine whether they are (1) reasonable, and (2) do not

“discriminate against speech on the basis of … viewpoint.”

Id. at 685 (emphasis added); see Reed, 576 U.S. at 169

(distinguishing between content and viewpoint discrimination).

Pursuant to that framework, the Court held that the all-comers

policy in that case was not only viewpoint-neutral, but “textbook

viewpoint neutral.” Martinez, 561 U.S. at 695. And, as the

majority acknowledges, the all-comers policy here is “modeled

after the version upheld by the Supreme Court in Martinez.”

To the extent the majority believes that Martinez is no

longer good law, it should say so outright. Since I am

unaware of any opinions of the Supreme Court overruling

Martinez, I respectfully dissent. See Agostini v. Felton, 521

U.S. 203, 237 (1997) (explaining that only the Supreme

Court may “overrule[] its own decisions”)

In discussing plaintiffs’ free exercise (as opposed to speech) claims, the

majority suggests that “the stipulated facts in Martinez providing for an

exceptionless policy are critically distinct from the discretion the District

retains when applying the non-discrimination policies in this case.” But

the “discretion” the majority refers to does not appear on the face of the

all-comers policy, which policy is almost identical to the one stipulated

to by the parties in Martinez. Instead, the discretion is derived from the

District’s actual enforcement of the policy vis-à-vis its other policies,

which would only be relevant to an as-applied challenge.

98 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

SUNG, Circuit Judge, concurring in part and dissenting in

part:

I agree with the majority that Pioneer FCA has

representational standing, but for different reasons. I agree

with Chief Judge Murguia that the declarations Plaintiffs

submitted in support of their motion for injunctive relief,

alone, are too sparse to establish standing. However, I agree

with the majority that we may grant Plaintiffs’ motion to

supplement the record on standing, because we did so under

similar circumstances in Teamsters Local Union No. 117 v.

Washington Dep’t of Corrections, 789 F.3d 979, 985-86 (9th

Cir. 2015). Therefore, I concur in the grant of Plaintiffs’

motion, Dkt. No. 98. Further, I find that “the record as

supplemented on appeal reflects the bare minimum

necessary to satisfy the threshold requirement of standing.”

Id.

I conclude, however, that FCA National does not have

direct organizational standing to pursue prospective

injunctive relief, for the reasons stated by Chief Judge

Murguia in her dissent.

Because I conclude that Pioneer FCA has

representational standing, I reach the merits of the district

court’s preliminary injunction decision. On the merits, I

conclude that the district court did not abuse its discretion in

refusing to enjoin the San José Unified School District from

uniformly applying its nondiscrimination policy to student

groups in the then-upcoming school year, for the reasons

stated by Chief Judge Murguia in her dissent.

I agree with Chief Judge Murguia’s rigorous analysis of

the record and law in Parts I, II.B, II.C.2, III.A, and III.B of

her dissent, and I join those parts in full. I also largely agree

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with Chief Judge Murguia’s analysis of Pioneer FCA’s

representational standing in Part II.C.1 of her dissent, but I

do not join that part for the reasons stated above. I also share

Chief Judge Murguia’s concerns about the majority’s

decision, as expressed in Part IV of her dissent, and I join

that part except for the last sentence regarding jurisdiction. I

also agree with and join Part II of Judge M. Smith’s partial

concurrence and partial dissent.

MURGUIA, Chief Circuit Judge, dissenting, with whom

Circuit Judge SUNG joins with respect to Parts I, II.B,

II.C.2, III.A, III.B, and IV (except for the last sentence):

This case presents challenging constitutional questions

of a significant nature. But this appeal requires us only to

decide a narrow issue with respect to those questions:

whether the district court abused its discretion in refusing to

enjoin the San José Unified School District from uniformly

applying its nondiscrimination policy to student groups in

the then-upcoming school year. Rather than properly

considering that issue, the majority hands down a sweeping

opinion with no defined limiting principle that ignores our

standard of review and carte-blanche adopts Plaintiffs’

version of disputed facts.

But even before resolving the limited appeal before us,

we must have jurisdiction to do so. We do not. I would

dismiss this appeal because Plaintiffs fail to make the

necessary “clear showing” of Article III standing. The

majority concludes otherwise only by ignoring unambiguous

Ninth Circuit and Supreme Court precedent. I respectfully

dissent.

100 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

I begin by highlighting that the majority overlooks our

standard of review and procedural posture. We review the

denial of a preliminary injunction for an abuse of discretion.

Olson v. California, 62 F.4th 1206, 1218 (9th Cir. 2023). In

so doing, we review the district court’s findings of fact for

clear error. All. for the Wild Rockies v. Cottrell, 632 F.3d

1127, 1131 (9th Cir. 2011). A factual finding is clearly

erroneous when it is “illogical, implausible, or without

support in inferences that may be drawn from the facts in the

record.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012)

(quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th

Cir. 2009) (en banc)). And, notably, our review of a district

court’s denial of a preliminary injunction is “limited and

deferential.” Sw. Voter Registration Educ. Project v.

Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc); Big

Country Foods, Inc. v. Bd. of Educ. of Anchorage Sch. Dist.,

868 F.2d 1085, 1087–88 (9th Cir. 1989) (emphasizing the

“very limited” scope of our review of the denial of a

preliminary injunction). In reviewing the district court’s

preliminary-injunction decision, we “will not reverse the

district court’s order simply because we would have reached

a different result. . . . [We are] not empowered to substitute

[our] judgment for that of the [district court].” Zepeda v.

I.N.S., 753 F.2d 719, 725 (9th Cir. 1983). The majority pays

only lip service to these standards, reciting them but not

applying them, the consequences of which I discuss below.

The Fellowship of Christian Athletes (FCA) is an

international religious ministry with thousands of student

chapters at middle schools, high schools, and colleges across

the United States. FCA’s stated mission is “to lead every

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coach and athlete into a growing relationship with Jesus

Christ and His church.” To become a recognized student

leader of an FCA student chapter, a student must

affirmatively state their agreement with a “Statement of

Faith” and must agree to abide by and conform their conduct

to a “Sexual Purity Statement.” Under these Statements,

prospective FCA student leaders must agree that sexual

intimacy should only occur between a man and a woman

within the confines of a heterosexual marriage.

Specifically, the Statement of Faith reads in relevant

part:

We believe God’s design for sexual intimacy

is to be expressed only within the context of

For good reason, the Supreme Court has

declined to distinguish between status and conduct in

[contexts where individuals are excluded “on the basis

of a conjunction of conduct and the belief that the

conduct is not wrong.”] See Lawrence v. Texas, 539

U.S. 558, 575 (2003) (“When homosexual conduct is

made criminal by the law of the State, that declaration

in and of itself is an invitation to subject homosexual

persons to discrimination.” (emphasis added)); id., at

583 (O’Connor, J., concurring in judgment) (“While it

is true that the law applies only to conduct, the conduct

targeted by this law is conduct that is closely

correlated with being homosexual. Under such

circumstances, [the] law is targeted at more than

conduct. It is instead directed toward gay persons as a

class.”); cf. Bray v. Alexandria Women’s Health

Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing

yarmulkes is a tax on Jews.”).

Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll.

of the L. v. Martinez, 561 U.S. 661, 689 (2010) (alteration in original).

102 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

marriage. God instituted marriage between

one man and one woman as the foundation of

the family and the basic structure of human

society. For this reason, we believe that

marriage is exclusively the union of one man

and one woman.

And the Sexual Purity Statement states:

God desires His children to lead pure lives of

holiness. The Bible teaches that the

appropriate place for sexual expression is in

the context of a marriage relationship. The

biblical description of marriage is one man

and one woman in a lifelong commitment.

While upholding God’s standard of holiness,

FCA strongly affirms God’s love and

redemptive power in the individual who

chooses to follow Him. FCA’s desire is to

encourage individuals to trust in Jesus and

turn away from any impure lifestyle.

The version of the Sexual Purity Statement first brought to Defendants’

attention in the spring of 2019 read:

God desires his children to lead pure lives of holiness.

The Bible is clear in teaching on sexual sin including

sex outside of marriage and homosexual acts. Neither

heterosexual sex outside of marriage nor any

homosexual act constitute an alternative lifestyle

acceptable to God.

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Every fall, student clubs at high schools across the San

José Unified School District apply for Associated Student

Body (ASB) recognition. The ASB program enhances

students’ sense of belonging and school spirit, creates a

forum for students to gather around shared interests, and

promotes self-governance. ASB-recognized student clubs

receive certain benefits, like inclusion in the school

yearbook; access to an ASB financial account, where the

club can deposit and withdraw funds; an official campus

advisor; and priority access to campus meeting space. ASB

clubs do not receive school funding. Students must apply

for ASB recognition on behalf of the prospective club.

Starting in the early 2000s, and until the spring of 2019,

three of the District’s six high schools—Willow Glen,

Leland, and Pioneer—had ASB-recognized FCA student

chapters. During that time, the District was unaware that

FCA restricted leadership by requiring student leaders to

affirm the Statement of Faith and Sexual Purity Statement.

In April 2019, three Pioneer students complained to

Pioneer staff about FCA’s student leadership requirements.

After a Pioneer teacher alerted Principal Herb Espiritu to the

complaints, Principal Espiritu contacted the District for

guidance. The District determined that FCA’s leadership

restrictions violated the District’s nondiscrimination

policies, which require District activities and programs to be

free from discrimination based on, among other things,

104 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

religion and sexual orientation.

As a result, the District

advised that FCA clubs were ineligible for ASB recognition.

At Pioneer, Principal Espiritu informed FCA’s student

leaders that FCA could no longer operate as an ASB club

One relevant part of the District’s nondiscrimination policy (Board

Policy 0410) states:

The Governing Board is committed to equal

opportunity for all individuals in district programs and

activities. District programs, and activities, and

practices shall be free from discrimination based on

religion, gender, gender identity and expression, race,

color, religion, ancestry, national origin, immigration

status, ethnic group, pregnancy, marital or parental

status, physical or mental disability, sexual orientation

or the perception of one or more of such

characteristics. The Board shall promote programs

which ensure that any discriminatory practices are

eliminated in all district activities.

Another section of the District’s policy (Board Policy 5145.3) provides:

All district programs and activities within a school

under the jurisdiction of the superintendent of the

school district shall be free from discrimination,

including harassment, with respect to the actual or

perceived ethnic group, religion, gender, gender

identity, gender expression, color, race, ancestry,

national origin, and physical or mental disability, age

or sexual orientation. The Governing Board desires to

provide a safe school environment that allows all

students equal access to District programs and

activities regardless of actual or perceived ethnicity,

religion, gender, gender identity, gender expression,

color, race, ancestry, nation origin, physical or mental

disability, sexual orientation, or any other

classification protected by law.

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because the District’s nondiscrimination policy forbade

“sponsor[ing] programs or activities with discriminatory

practices.” FCA was therefore not recognized as an ASB

student club for the remainder of the 2018–19 school year or

for the 2019–20 school year.

The District allowed FCA student chapters to operate as

“student interest groups” even without ASB recognition.

Student interest groups can advertise and meet at school,

participate in club rush and school events, and use the

auditorium for club meetings and activities.

During the 2020–21 school year, due to the COVID-19

pandemic, Pioneer granted provisional ASB approval to all

student clubs, including Pioneer FCA. Pioneer FCA was the

only FCA student chapter in the District that operated during

the 2020–21 school year; the chapters at the two other

District schools (Willow Glen and Leland) had dissolved.

The Pioneer students who led Pioneer FCA in the 2020–21

school year graduated in 2021.

As the 2021–22 school year approached, the District

created a new application process for prospective ASB

clubs, featuring an “All-Comers Policy” that requires all

clubs “to permit any student to become a member or leader.”

In conjunction with this new ASB-approval process, the

District issued guidelines and trained its activities directors

on the process. Under the new process, any club seeking

ASB recognition must complete and sign an “ASB

Affirmation Form,” which includes confirming the club’s

conformance with the District’s nondiscrimination policies.

The club must affirm that it will “[a]llow any currently

enrolled student at the school to participate in, become a

member of, and seek or hold leadership positions in the

organization, regardless of his or her status or beliefs.” The

106 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

form allows the adoption of “non-discriminatory criteria”

regarding being a member or leader, such as “regular

attendance” and “participation” in events and activities.

District guidance explained that the ASB Affirmation Form

is to be “implemented and construed in accordance” with the

Supreme Court’s decision in Christian Legal Society v.

Martinez, 561 U.S. 661 (2010), which upheld the

constitutionality of a similar all-comers policy. All ASB-

approved clubs were also required to adopt constitutions

prohibiting discrimination in club membership and

leadership.

Consistent with this new approval process, any student

club that signed the affirmation form and adopted a requisite

constitution was granted ASB recognition in the 2021–22

school year. Likewise, the District clarified that any club

that followed this process would be approved for the 2022–

23 school year.

No FCA student applied for ASB recognition at any

District school during the 2021–22 school year. And Pioneer

FCA declined an invitation to host a table at Pioneer’s club

rush in the fall of 2021.

In April 2020—before Pioneer provisionally recognized

all student groups for the 2020–21 school year—Plaintiffs

FCA National and two Pioneer seniors, Charlotte Klarke and

Elizabeth Sinclair, sued the District and several District

officials, seeking injunctive relief, declaratory relief, and

damages. Soon after, they filed an amended complaint,

bringing constitutional claims primarily under the First

Amendment, and a statutory claim under the Equal Access

Act. Defendants moved to dismiss. The district court

granted the motion in part, dismissing with prejudice Klarke

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 107

and Sinclair’s claims for prospective relief because those

claims became moot when the students graduated in June

2020. See Roe v. San Jose Unified Sch. Dist. Bd., No. 20-

CV-02798-LHK, 2021 WL 292035, at *19 (N.D. Cal. Jan.

28, 2021). Klarke and Sinclair’s claims for retrospective

damages stemming from alleged past violations of their

rights remain pending. Id. The district court also concluded

that FCA National failed to allege its own organizational or

associational standing and dismissed its claims without

prejudice. Finally, the district court dismissed with

prejudice Plaintiffs’ facial challenges to the District’s

policies. Id.

Plaintiffs filed the operative complaint in July 2021,

adding Pioneer FCA as a plaintiff. Plaintiffs soon moved for

a preliminary injunction, in which they sought an order

requiring the District to recognize Pioneer FCA as an ASB

student group. In support of their motion for preliminary

injunction, Plaintiffs submitted six declarations between

July 2021 and May 2022 from FCA National employee

Rigoberto Lopez. Defendants again moved to dismiss,

arguing that FCA National and Pioneer FCA lacked Article

III standing for the requested prospective injunctive relief.

The district court failed to rule on that motion.

During discovery, Defendants agreed not to depose any

current or former FCA-affiliated students, and FCA

stipulated that it would neither call any FCA-affiliated

students or former students at trial nor use previously

unsubmitted testimony or statements of such students in

connection with any motion in the case.

The district court denied the preliminary-injunction

motion in June 2022. See Fellowship of Christian Athletes

v. San Jose Unified Sch. Dist. Bd. of Educ., No. 20-CV-

108 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

02798-HSG, 2022 WL 1786574, at *1 (N.D. Cal. June 1,

2022). In its order, the district court made specific factual

findings that the District did not selectively enforce the All-

Comers Policy and that the District did not have any

discretion to allow student clubs to discriminate. See id. at

*9–12. Plaintiffs timely appealed the denial of the

preliminary injunction.

On appeal, Defendants again argued that Plaintiffs

lacked Article III standing for injunctive relief. They

asserted that Plaintiffs failed to show that any District

student intended to seek ASB recognition for an FCA club

for the coming school year or would seek recognition if the

District’s Policy were enjoined. Defendants thus contended

that Plaintiffs were not likely to suffer any future harm, a

necessary requisite of standing at the preliminary-injunction

stage.

In August 2022, a three-judge panel of our Court heard

oral argument. Less than two weeks later, Plaintiffs filed a

Federal Rule of Appellate Procedure 28(j) letter seeking to

insert new evidence into the record. Specifically, they

requested to submit evidence that two Pioneer students—

N.M. and B.C.—were interested in applying for ASB

recognition of an FCA club for the then-upcoming 2022–23

school year. In a written order, the panel unanimously

refused to consider this “eleventh-hour filing.”

In rejecting Plaintiffs’ request, the panel quoted then-Judge Gorsuch’s

opinion in Niemi v. Lasshofer, 728 F.3d 1252, 1262 (10th Cir. 2013)

(Gorsuch, J.):

Allowing a party to convert [Rule 28(j)] to an entirely

new and different purpose—allowing Rule 28(j)

letters to be used to introduce any sort of new issue

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 109

That same day, the same panel reversed the district

court’s denial of the preliminary injunction in a divided

decision. Fellowship of Christian Athletes v. San Jose

Unified Sch. Dist. Bd. of Educ., 46 F.4th 1075 (9th Cir.

2022), vacated by 59 F.4th 997 (9th Cir. 2023). The panel

majority concluded that both FCA National and Pioneer

FCA had standing for prospective relief. 46 F.4th at 1088–

91. On the merits, the majority concluded that Plaintiffs

were likely to succeed on their selective-enforcement free-

exercise claims and that the remaining preliminary-

injunction factors supported granting the requested

injunctive relief. Id. at 1092–99. The majority directed the

district court to enter an injunction that ordered the District

to grant ASB recognition to FCA student groups. Id. at

1099.

The panel dissent concluded that Plaintiffs could not

establish Article III standing for prospective relief and, as a

result, the appeal should be dismissed for lack of

jurisdiction. Id. at 1103 (Christen, J., dissenting). The

dissent explained:

Because the District’s nondiscrimination

policy cannot cause a real or immediately

after briefing is complete—risks leaving opponents

with no opportunity (at least if they abide the rules of

appellate procedure) for a proper response; it risks an

improvident opinion from this court by tasking us with

the job of issuing an opinion without the full benefits

of the adversarial process; and it invites an unsavory

degree of tactical sandbagging by litigants in future

cases: why bother pursuing a potentially winning issue

at the outset when you can wait to introduce it at the

last second and leave your opponent without the

chance to respond?

110 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

impending injury to FCA if no students apply

for ASB recognition, FCA cannot establish

standing without evidence that a Pioneer

FCA student has applied, or intends to apply,

for ASB recognition for the upcoming school

year. FCA failed to make that showing.

Id.

Defendants petitioned for rehearing en banc. While their

petition was pending, Plaintiffs again sought to introduce

new evidence, this time by moving to supplement the record

on appeal. The proffered evidence allegedly showed that

after the three-judge panel’s decision, N.M. and B.C.

submitted a student-club application for Pioneer FCA, and

the District then reinstated Pioneer FCA’s ASB status for

one year.

Plaintiffs claimed that this evidence confirmed

that Plaintiffs’ claims were “not moot” because it showed

that Pioneer FCA exists and needs permanent injunctive

relief.

A majority of active members of this Court then voted to

rehear the case en banc, so the panel opinion was vacated.

59 F.4th at 998. After we heard oral argument in March

2023, a majority of the en banc court voted to issue an

injunction—similar to the one the three-judge panel had

Plaintiffs’ motion to supplement prompted a volley of responses and

replies. Going into en banc oral argument, there were three pending

motions to supplement the record on appeal, two from Plaintiffs and one

from Defendants. Defendants cross-moved for leave to supplement the

record with evidence that “while two students signed a club application,

they were not, and are not, actually committed to organizing a club.”

Defendants also asked to supplement the record with evidence related to

the merits. Plaintiffs opposed the cross-motion and moved to

supplement the record with additional jurisdictional evidence.

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 111

instructed the district court to issue—pending resolution of

the appeal. Fellowship of Christian Athletes v. San Jose

Unified Sch. Dist. Bd. of Educ., 64 F.4th 1024, 1025 (9th Cir.

2023) (en banc). I dissented from that order. Id. (Murguia,

C.J., dissenting).

II.

Before reaching the merits of the district court’s

preliminary-injunction decision, we must assure ourselves

that Plaintiffs have standing and that jurisdiction otherwise

exists. LA All. for Hum. Rts. v. County of Los Angeles, 14

F.4th 947, 956 (9th Cir. 2021). So, like the majority, I begin

by addressing whether Plaintiffs meet the “irreducible

constitutional minimum” of Article III standing. Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992). Unlike the

majority, to make this determination, I would act in

accordance with our regular practice and precedent and

consider only the record that existed before the district court.

See Lowry v. Barnhart, 329 F.3d 1019, 1024–25 (9th Cir.

2003) (“Save in unusual circumstances, we consider only the

district court record on appeal.”).

Based on the record before the district court, Plaintiffs

lack standing for prospective injunctive relief. Plaintiffs do

not establish that any District student intended to apply for

ASB recognition for an FCA club during the then-upcoming

2022–23 school year, or would have done so if the District’s

Policy were enjoined. Without that evidence, Plaintiffs

cannot show injury in fact and so they do not meet their

standing burden. I would dismiss the appeal for lack of

jurisdiction.

112 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

As a preliminary matter, I would deny all pending

motions to supplement the record on appeal. After the three-

judge panel reversed the district court and while Defendants’

petition for rehearing en banc was pending, Plaintiffs moved

to supplement the record on appeal with evidence

purportedly related to our jurisdiction.

Specifically,

Plaintiffs’ motion proffered extra-record evidence allegedly

showing that N.M. and B.C. applied for ASB recognition for

a Pioneer FCA club for the 2022–23 school year.

But “[o]nly in extraordinary situations should the record

on appeal be supplemented with material that was not before

the district court.” Barilla v. Ervin, 886 F.2d 1514, 1521 n.7

(9th Cir. 1989); IMDb.com Inc. v. Becerra, 962 F.3d 1111,

1126 n.7 (9th Cir. 2020) (rejecting attempt to insert into the

record a statement submitted to our Court “for the first time

during the pendency of the appeal” because “[d]ocuments or

facts not presented to the district court are not part of the

record on appeal” (citation omitted)); Fed. R. App. P. 10(a)

(explaining that the record on appeal consists of “papers and

exhibits filed in the district court,” “the transcript of

proceedings,” and “docket entries”). We have stressed that

“[t]his limitation is fundamental.” Lowry, 329 F.3d at 1024.

That said, there are rare “exceptions to [this] general rule,”

including that we may supplement the record on appeal

where “developments [might] render a controversy moot and

thus divest us of jurisdiction.” Id.

This was Plaintiffs’ second attempt to introduce extra-record evidence,

the first being the post-panel-argument Rule 28(j) letter that the three-

judge panel unanimously rejected.

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 113

Here, Plaintiffs argue that supplementation of the record

is permitted because the proffered evidence shows that

Plaintiffs’ claims are not moot. Plaintiffs are confused. As

Defendants argue and both the three-judge panel majority

and dissent recognized, the relevant justiciability issue here

is standing, not mootness. Plaintiffs’ cited authority on

mootness therefore has no application here.

“A case is moot when the issues presented are no longer

live or the parties lack a legally cognizable interest in the

outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287

(2000) (cleaned up). But a plaintiff must have established

Article III standing in the first place for a case to remain a

live controversy (and thus not moot). See Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.

167, 174 (2000) (warning courts not to incorrectly conflate

standing and mootness and emphasizing a court’s

“obligation to assure” that the plaintiffs “had Article III

standing” even where the case was not moot); cf. id. at 191

(“Standing admits of no . . . exception; if a plaintiff lacks

standing at the time the action commences, . . . the

complainant [is not entitled] to a federal judicial forum.”).

And here, as I discuss in detail below, Plaintiffs fail to

make the mandatory threshold showing of standing. The

majority grants Plaintiffs’ motion to supplement only by

accepting Plaintiffs’ flawed mootness invitation. Viewing

the jurisdictional issue as what it is—a question of

standing—the majority’s decision to supplement the record

cannot withstand scrutiny. See W. Watersheds Project v.

Kraayenbrink, 632 F.3d 472, 483 n.6 (9th Cir. 2011)

(emphasizing that standing “cannot be created

114 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

retroactively”).

Because our precedent does not allow a

party to supplement the record in these circumstances or to

devise standing on appeal with extra-record evidence, I

would deny the motions to supplement.

To establish Article III standing, a plaintiff bears the

burden of showing that (1) it “suffered an injury in fact, i.e.,

one that is sufficiently ‘concrete and particularized,’ and

‘actual or imminent, not conjectural or hypothetical,’ (2) the

injury is ‘fairly traceable’ to the challenged conduct, and (3)

the injury is ‘likely’ to be ‘redressed by a favorable

decision.’” Bates v. UPS, 511 F.3d 974, 985 (9th Cir. 2007)

(quoting Lujan, 504 U.S. at 560–61). Because standing is

“an indispensable part” of the plaintiff’s case, each element

“must be supported in the same way as any other matter on

which the plaintiff bears the burden of proof, i.e., with the

manner and degree of evidence required at the successive

stages of the litigation.” Lujan, 504 U.S. at 561.

At the preliminary-injunction stage, the plaintiff must

make a “clear showing” of each of these elements. Townley

v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013). To do so, the

plaintiff “may rely on the allegations in their Complaint and

whatever other evidence they submitted in support of their

[preliminary-injunction] motion.” City & Cnty. of San

Francisco v. U.S. Citizenship & Immigr. Servs., 944 F.3d

Teamsters Local Union No. 117 v. Washington Department of

Corrections, 789 F.3d 979 (9th Cir. 2015), does not help Plaintiffs here.

In that summary-judgment appeal, our Court considered supplemental

affidavits about a longstanding, six-year-old policy that the district court

had considered in “multiple proceedings.” 789 F.3d at 986. In contrast,

Plaintiffs’ proffered declarations concern new events that occurred after

the district court denied the motion for injunctive relief.

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 115

773, 787 (9th Cir. 2019) (quoting Washington v. Trump, 847

F.3d 1151, 1159 (9th Cir. 2017) (per curiam)).

When a plaintiff seeks prospective injunctive relief, it

cannot rely solely on past injury and instead must

demonstrate “a sufficient likelihood that [it] will again be

wronged in a similar way” and a “real and immediate threat

of repeated injury.” Bates, 511 F.3d at 985 (first quoting

City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983); and

then quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)).

The Supreme Court has explained that “past wrongs do not

in themselves amount to [a] real and immediate threat of

injury,” unless accompanied by “continuing, present adverse

effects.” Lyons, 461 U.S. at 102–03 (citation omitted).

“Threatened injury must be certainly impending to constitute

injury in fact,” and “allegations of possible future injury are

not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398,

409 (2013) (cleaned up).

Plaintiffs assert two theories of Article III standing: that

Pioneer FCA has representational standing and that FCA

National has direct organizational standing. Under

representational standing, an organization may bring suit on

behalf of its members based on injuries to its members,

whether or not the organization itself has suffered an injury.

Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100,

1105 (9th Cir. 2006). Under direct organizational standing,

an organization may bring suit in its own right to challenge

an action that causes it direct injury. E. Bay Sanctuary

Past injuries are redressed by damages, and Plaintiffs’ damages claims

remain pending irrespective of any prospective remedy granted today.

See Roe, 2021 WL 292035, at *19.

116 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

Covenant v. Biden, 993 F.3d 640, 663 (9th Cir. 2021).

Confined to the proper record on appeal—the record before

the district court, neither Pioneer FCA nor FCA National has

standing for the prospective injunctive relief they request

here.

Under the representational standing doctrine, Pioneer

FCA has standing to bring suit on behalf of its members if

“(1) at least one of its members would have standing to sue

in his own right, (2) the interests the suit seeks to vindicate

are germane to the organization’s purpose, and (3) neither

the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.” Fleck

& Assocs., Inc., 471 F.3d at 1105–06. The parties dispute

only whether the first prong is met.

For a Pioneer FCA member to have standing for

prospective relief in his own right, he needs to suffer the

threat of a sufficiently concrete and imminent future injury.

ASB clubs are comprised only of students, and only students

may apply for ASB recognition. So, if Plaintiffs fail to

establish that any Pioneer FCA student intended to apply for

ASB recognition for the 2022–23 school year or would have

applied in the absence of the District’s Policy, they cannot

clearly show a prospective injury.

Plaintiffs seeking injunctive relief must make a “clear

showing” of imminent future injury through detailed and

specific evidence. Townley, 722 F.3d at 1133 (citing Lujan,

504 U.S. at 561). That demand has teeth; the Supreme Court

has regularly dismissed appeals because plaintiffs failed to

meet their burden. See, e.g., Lujan, 504 U.S. at 565

(concluding that affidavits reflecting plaintiff-organization

members’ “inten[t]” to engage in activity that would be

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 117

affected by the defendant’s action were “simply not enough”

for Article III standing because “‘some day’ intentions . . .

do not support a finding of . . . ‘actual or imminent’ injury”);

Sierra Club v. Morton, 405 U.S. 727, 735 (1972) (holding

that plaintiff-organization did not establish Article III

standing for injunctive relief where the organization failed

to show that its members would be affected by the actions it

sought to enjoin); Summers v. Earth Island Inst., 555 U.S.

488, 496 (2009) (rejecting plaintiffs’ claim of Article III

standing because the affidavits failed to establish “firm

intention” that plaintiff-organization’s member would return

to location affected by challenged government action;

finding “vague desire” insufficient to satisfy the requirement

of imminent injury).

We, too, have concluded that the lack of a concrete plan

or firm intention makes a plaintiff’s claim of injury too

speculative for Article III standing. See, e.g., Wilderness

Soc., Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010)

(rejecting as insufficient to support standing a declaration

that did not establish member’s “concrete plans” to return to

affected location); Lopez v. Candaele, 630 F.3d 775, 787

(9th Cir. 2010) (no Article III standing for prospective relief

where plaintiff failed to articulate, with sufficient detail, his

concrete plans or intent to violate government action);

Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d 1134,

1139 (9th Cir. 2000) (explaining that a “general intent” to

take a future action “does not rise to the level of an

articulated, concrete plan” and that for plaintiffs to establish

Article III standing for prospective relief, they must specify

“when, . . . where, or under what circumstances”). A recent

case of ours, Yazzie v. Hobbs, is particularly instructive in

this regard. 977 F.3d 964 (9th Cir. 2020) (per curiam).

There, we affirmed the denial of a preliminary injunction

118 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

involving a vote-by-mail deadline. Id. at 969. The

complaint alleged that the plaintiffs faced myriad challenges

to voting by mail. Id. at 965. But because none of the

plaintiffs established an intent to vote by mail in the

upcoming election, we concluded that the plaintiffs lacked

Article III standing. Id. at 966. The plaintiffs’ “general”

allegations and intent did not constitute concrete and

particularized injury and instead “epitomize[d] speculative

injury.” Id. at 967 (quoting Townley, 722 F.3d at 1133).

Applying this precedent, Pioneer FCA cannot meet its

burden here. No District students sought ASB recognition

for an FCA club for the 2021–22 school year. And Plaintiffs

fail to adequately show that any student firmly intended or

had concrete plans to apply for ASB recognition in the 2022–

23 school year or that any would have applied in the absence

of the District’s Policy. See id. (“What is missing for [the

plaintiffs] is any allegation or showing as to, at a bare

minimum, whether any of the plaintiffs intend to” engage in

conduct covered by the injunction that plaintiffs seek.). This

dooms Pioneer FCA’s standing for prospective relief.

Plaintiffs’ standing argument rests on declarations that

Plaintiffs submitted in support of their motion for injunctive

relief. Plaintiffs assert that these declarations, all from FCA

National employee Rigoberto Lopez, sufficiently

demonstrate that two Pioneer students—N.M. and B.C.—

intended to apply for ASB recognition during the 2022–23

school year. Plaintiffs are wrong. Lopez’s declarations fall

far short of establishing the necessary “clear showing” of a

concrete and particularized injury.

The declarations do not state or otherwise clearly show

that N.M. or B.C. intended to apply for ASB recognition. In

the September 2021 declaration cited by the majority, Lopez

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 119

stated broadly that “Pioneer FCA’s leadership will apply for

ASB recognition” if an injunction were granted. Contrary to

the majority’s telling, this assertion was not related to N.M.

and does nothing to establish her intent to apply for ASB

recognition. At that point in September 2021, N.M. was not

a leader of Pioneer FCA, nor does the record indicate that

she had concrete plans to become one. The majority also

unpersuasively relies upon Lopez’s statements in a May

2022 declaration that N.M. and B.C. were confirmed as

Pioneer FCA’s leadership for the 2022–23 school year. But

that declaration does not mention, let alone detail, N.M. or

B.C.’s plans or desires to apply for ASB recognition.

According to the majority, the undetailed declarations

nonetheless make it “apparent” that at least one Pioneer FCA

student leader has standing to seek forward-looking relief.

Supreme Court precedent, and ours in turn, demands more.

The general and conclusory statements from Lopez are

insufficient to establish a student’s “concrete plans” or “firm

intentions” to apply for ASB recognition. Summers, 555

U.S. at 496.

There are additional reasons that Lopez’s declarations

cannot surmount Plaintiffs’ standing burden. To start, the

declarations are speculative hearsay. True, courts may

exercise discretion to consider hearsay in deciding whether

to issue a preliminary injunction. See Republic of the

Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988)

(en banc). But that discretion—stemming from the

“urgency” of obtaining a preliminary injunction, which may

“necessitate[] a prompt determination and make[] it difficult

to obtain affidavits from persons who would be competent

to testify at trial”—has no role to play here. Flynt Distrib.

Co. Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984).

120 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

There was no urgency in this case; indeed, neither

Plaintiffs nor the majority intimate as much. Plaintiffs’

motion for a preliminary injunction was pending before the

district court for ten months. See Fellowship of Christian

Athletes, 2022 WL 1786574, at *1. During that time,

Plaintiffs never presented any evidence from students

establishing their intent to apply for ASB recognition. The

majority brushes aside that reality as unimportant, reasoning

that the parties’ joint stipulation preventing testimony from

non-party students barred Plaintiffs from introducing such

evidence. This argument is lacking for two reasons.

First, Plaintiffs’ motion was pending for seven months

before the parties entered the joint stipulation about student

testimony. During that time, Plaintiffs could have supported

their motion with declarations or other evidence from non-

party students. But they did not. Second, Plaintiffs cannot

skirt their burden to establish a jurisdictional requirement by

hiding behind a discovery stipulation. A discovery

stipulation cannot trump Article III of the Constitution. See

Virginia House of Delegates v. Bethune-Hill, 139 S. Ct.

1945, 1951 (2019) (“As a jurisdictional requirement,

standing to litigate cannot be waived or forfeited.”).

On top of this, there is reason to doubt the credibility of

the Lopez declarations. We have warned that at this stage of

litigation, courts should give inadmissible hearsay only the

weight to which it is entitled and consider it only when

“do[ing] so serves the purpose of preventing irreparable

harm before trial.” Flynt, 734 F.2d at 1394; see Am. Passage

Media Corp. v. Cass Commc’ns, Inc., 750 F.2d 1470, 1473

(9th Cir. 1985) (rejecting affidavits submitted in support of

a motion for a preliminary injunction because the affidavits

were “conclusory and without sufficient support in facts”).

This appeal demonstrates why we put limited emphasis on

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 121

inadmissible evidence, as the record here reveals cracks in

Lopez’s statements. For example, when Lopez was deposed

in February 2022, he walked back and qualified statements

he made in the September and October 2021 declarations.

Notably, in the September 2021 declaration, he stated that

N.M. was “fearful” of seeking ASB recognition. Later,

during his deposition, Lopez clarified that it was he—not

N.M.—who had concerns about the ASB application. The

majority, however, unquestionably credits the veracity of the

declarations.

In sum, the record does not specifically show that a

Pioneer student intended to apply for ASB recognition in the

2022–23 school year or would apply in the absence of the

All-Comers Policy. And without that, Pioneer FCA has no

standing for prospective relief. See Lujan, 504 U.S. at 563

(no Article III standing where organization failed to submit

affidavits “showing, through specific facts . . . that one or

more of [its] members would . . . be ‘directly’ affected” by

the allegedly illegal activity).

Plaintiffs’ alternative standing theory fares no better.

FCA National has direct organizational standing for

prospective relief only if Plaintiffs can demonstrate that the

District’s behavior will “frustrate[] [FCA National’s]

Citing Truth v. Kent School District, the majority also suggests that

Pioneer FCA may demonstrate imminent injury in this case on the basis

that the District had a written policy and Pioneer FCA’s injury stems

from that policy. See 542 F.3d 634, 642 (9th Cir. 2008), overruled on

other grounds by Los Angeles County v. Humphries, 562 U.S. 29 (2010).

But unlike Truth, Plaintiffs here fail to establish that any student would

apply for club recognition. The existence of a written policy therefore

cannot alone confer standing in this case.

122 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

mission and cause[] it to divert resources in response to that

frustration of purpose.” E. Bay Sanctuary Covenant, 993

F.3d at 663. They have not done so.

Plaintiffs’ direct organizational theory of standing fails

because Plaintiffs rely on allegations of past actions to

demonstrate that FCA National has standing to seek future

injunctive relief. For example, they allege that FCA

National diverted resources in response to the District’s

decision to derecognize FCA in 2019. The majority makes

a similar mistake, concluding that FCA National has

organizational standing because FCA National “has

diverted” staff time and energy and the District’s denial of

ASB recognition “has undoubtedly hampered” FCA

National’s ability to engage in its mission. While past

diversion of resources and past frustration of FCA National’s

mission may support standing for damages, they do not

support standing for prospective relief. See TransUnion

LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (“[S]tanding

is not dispensed in gross; rather, plaintiffs must demonstrate

standing for each claim that they press and for each form of

relief that they seek (for example, injunctive relief and

damages).”).

Plaintiffs cite no cases to support their argument that

they meet this theory of standing, and the cases invoked by

the majority are inapposite because they do not involve

injunctive relief. See Majority Opinion at 33–34 (citing

Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 879

(9th Cir. 2022) (motion-to-dismiss stage involving plaintiff

seeking damages); Pac. Shores Props., LLC v. City of

Newport Beach, 730 F.3d 1142, 1166 (9th Cir. 2013)

(summary-judgment stage in which organizations had

standing to seek damages for past harm after plaintiffs

voluntarily dismissed claims for injunctive relief); Fair

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 123

Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th

Cir. 2002)

(default judgment for damages); Walker v. City of

Lakewood, 272 F.3d 1114, 1124 (9th Cir. 2001) (summary-

judgment stage involving plaintiff seeking damages)). The

question here is not whether a frustrated mission or diverted

resources can serve as a compensable injury (they can), but

rather whether FCA National has made a clear showing that

its resources will be diverted or its mission will be frustrated

going forward. The answer to that question—the only

question that matters—is “no.” This conclusion is bolstered

by the fact that Plaintiffs have not shown that any student

would have applied for ASB recognition in the first place.

That point undercuts any argument that FCA National will

“devote significant time and resources” to assist students—

there are no such students to assist.

* * *

Because neither Pioneer FCA nor FCA National have

Article III standing for forward-looking relief, I would

dismiss Plaintiffs’ appeal for lack of jurisdiction.

III.

Because I would dismiss this appeal, I would not reach

the merits. See Equity Lifestyle Props., Inc. v. County of San

Luis Obispo, 548 F.3d 1184, 1189 n.10 (9th Cir. 2008) (“The

jurisdictional question of standing precedes, and does not

require, analysis of the merits.”). But I write briefly further

to touch on several of the legal errors and factual

misrepresentations the majority makes on the merits.

The majority holds that Plaintiffs are likely to succeed

on their free-exercise claims for three separate reasons. Not

only does the majority err in each of its free-exercise

124 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

analyses, but it improperly goes far beyond what is needed

to resolve this preliminary-injunction appeal. The sweeping

nature of the majority opinion flies in the face of judicial

restraint, particularly at this preliminary stage where the

record is underdeveloped. See, e.g., Wash. State Grange v.

Wash. State Republican Party, 552 U.S. 442, 450 (2008)

(holding that courts should neither “anticipate a question of

constitutional law in advance of the necessity of deciding it”

nor “formulate a rule of constitutional law broader than is

required by the precise facts to which it is to be applied”)

(citation omitted); All. for the Wild Rockies, 632 F.3d at 1139

(reversing denial of preliminary injunction on one claim

without reaching the merits of plaintiff’s other claims); cf.

Pearson v. Callahan, 555 U.S. 223, 234 (2009) (reiterating

that judicial restraint cautions courts to avoid reaching

constitutional questions when they are unnecessary to the

disposition of a case).

The majority’s first free-exercise error is that it

improperly expands the Supreme Court’s decision in Fulton

v. City of Philadelphia, 141 S. Ct. 1868 (2021). In Fulton,

the Supreme Court explained that a law is not generally

applicable, thus triggering strict scrutiny, if there is a “formal

mechanism for granting exceptions” that “‘invite[s]’ the

government to consider the particular reasons for a person’s

conduct” and whether they “are worthy of solicitude.” 141

On this point, I fully agree with Judge M. Smith’s statement in his

partial concurrence and partial dissent: “[T]he majority opinion sweeps

well beyond what is needed to resolve this case and imprudently

addresses open questions of law upon an underdeveloped, preliminary-

injunction record—even though doing so has no impact on the relief to

which the [majority concludes that] plaintiffs are entitled.”

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S. Ct. at 1877, 1879 (quoting Emp. Div., Dep’t of Hum. Res.

of Oregon v. Smith, 494 U.S. 872, 884 (1990)). Here, the

All-Comers Policy provides that all clubs must allow all

students to participate “regardless of his or her status or

beliefs.” The Policy does not contain any written provision

allowing the District to grant exceptions to this blanket

nondiscrimination rule.

In this important regard, the Policy in this case is unlike

the policy in Fulton. In Fulton, the Supreme Court held that

the City of Philadelphia violated the Free Exercise Clause

when it refused to contract with Catholic Social Services

(CSS) unless CSS agreed to certify same-sex couples as

foster parents. Id. at 1874. But there, the City’s contract

with foster-care agencies included a written provision giving

a city official “sole discretion” to make exceptions to the

contract’s nondiscrimination rule. Id. at 1878–79. The

Court explained that “[t]he creation of a formal mechanism

for granting exceptions renders a policy not generally

applicable.” Id. at 1879. And because the sole-discretion

provision “‘invite[d]’ the government to decide which

reasons for not complying with the [nondiscrimination]

policy [were] worthy of solicitude,” it did not qualify as

generally applicable. Id. (quoting Smith, 494 U.S. at 884).

Fulton was a narrow ruling hinging on the City’s

“inclusion of a formal system” of discretionary exceptions.

Id. at 1878. In fact, we have since recognized the decision’s

critical emphasis on an express grant of discretion, i.e., a

Justice Alito’s Fulton concurrence highlights the limited nature of the

Fulton majority’s holding. Justice Alito reasoned that to comply with

the ruling, the City could merely remove the contractual phrase

conferring discretionary power, i.e., the “formal” mechanism. Fulton,

141 S. Ct. at 1887 (Alito, J., concurring in the judgment).

126 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

formal mechanism. See Tingley v. Ferguson, 47 F.4th 1055,

1088 (9th

Cir. 2022) (holding that a statute was generally

applicable in part because it lacked any provision providing

a formal discretionary mechanism for individual

exceptions).

Here, there is no formal mechanism for granting

exceptions to the All-Comers Policy. Indeed, no one asserts

that the All-Comers Policy expressly provides the District

with discretion to waive nondiscrimination requirements.

Instead, Plaintiffs and the majority focus on the District’s

alleged “exercise[]” of discretion. But nothing in Fulton

suggests that it applies to an informal practice untethered to

a formal mechanism. The majority’s Fulton analysis

operates from a faulty premise and is therefore

unpersuasive.

Next, the majority’s analysis of whether the District

treated any comparable secular group more favorably than

FCA is also flawed. See Tandon v. Newsom, 141 S. Ct. 1294,

1296 (2021) (explaining that a law is not generally

applicable if it treats comparable secular activity more

favorably than religious activity). The majority concludes

that the District triggered strict scrutiny under Tandon by

selectively enforcing its Policy only against FCA and not

other student groups. But the majority’s Tandon discussion

To the extent the majority asserts that the text of the Policy grants

impermissible discretion to the District because the Policy permits

student groups to restrict membership based on “non-discriminatory

criteria,” the majority is incorrect. On its face, the All-Comers Policy’s

non-discriminatory-criteria provision is plainly unlike the Fulton

provision, which formally gave discretion to discriminate.

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involves a misapprehension of the record and the district

court’s factual findings.

Specifically, the majority points to the Girls’ Circle, the

Big Sister/Little Sister Club, and the Senior Women’s Club

as examples of secular clubs that the District allowed to

discriminate. The district court, however, made specific

factual findings about each of these groups, finding “no[]

clear proof that the District allows” clubs to violate its Policy

or that the clubs actually do discriminate. See Fellowship of

Christian Athletes, 2022 WL 1786574, at *1.

The district court’s findings as to these groups are neither

illogical, implausible, nor without support in inferences that

may be drawn from the facts in the record. The district court

cited deposition testimony from Principal Espiritu that if a

male student wanted to join the Big Sister/Little Sister club,

the group would need “to be inclusive and consider it.” And

the district court found, based on record evidence, that the

Girls’ Circle was never an approved ASB student group. As

for the Senior Women’s Club, the district court recognized

that the club constitution simultaneously stated both that its

members are “students who are seniors who identify as

female” and also that “[a]ny currently enrolled student in the

School shall be eligible for membership.” Acknowledging

the arguable “tension” between these statements, the district

court found that the preliminary record did not establish that

the District allows discrimination in violation of the newly-

adopted All-Comers Policy. Both the record and our

caselaw support this finding. See Alpha Delta Chi-Delta

Chapter v. Reed, 648 F.3d 790, 803–04 (9th Cir. 2011) (no

selective enforcement where “groups were approved

inadvertently because of administrative oversight,” or where

“groups have, despite the language in their applications,

agreed to abide by the nondiscrimination policy”). Notably,

128 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

because Plaintiffs’ claims are for prospective relief, what

matters for this appeal is not the past application of earlier

ASB approval processes but instead the future application of

the All-Comers Policy.

Finally, in determining that the Policy triggers strict

scrutiny because it is not neutral, the majority makes both

legal and factual errors. It is a basic and vital constitutional

principle that the government cannot act with animosity

toward religion. See Masterpiece Cakeshop, Ltd. v.

Colorado C.R. Comm’n, 138 S. Ct. 1719, 1732 (2018)

(explaining that a law is not neutral when the government

acts in a manner intolerant of religious beliefs); see also

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 532–33 (1993) (same). The majority’s

discussion on this issue overreads Supreme Court caselaw

and misapplies it to the facts here.

Properly understood, Masterpiece Cakeshop, upon

which the majority relies, supports Defendants’ position, not

Plaintiffs’. 138 S. Ct. 1719. In Masterpiece Cakeshop, the

Supreme Court concluded that the Colorado Civil Rights

Commission violated a baker’s free-exercise rights by

conducting an adjudicatory proceeding infected with bias

As the majority acknowledges, the district court did not address

Plaintiffs’ religious-animus claim, so we have no relevant factual

findings to review. And the majority concedes that there is, at the least,

“some confusion” as to who had the “final say on derecognition.” Given

the majority’s concession that the record is at best murky, it begs the

question why the majority unnecessarily reaches Plaintiffs’ religious-

animus claim at all. See, e.g., All. for the Wild Rockies, 632 F.3d at 1139

(reversing denial of preliminary injunction on one claim without

reaching the merits of plaintiff’s other claims).

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against the baker’s religious beliefs. Id. at 1732. The

“elements of a clear and impermissible hostility” in

Masterpiece Cakeshop consisted of on-the-record

statements made by decision-makers at a formal, public

hearing without objection from other decision-makers. Id.

at 1729. The Court was careful to limit its holding to

contexts in which the decision-makers made hostile remarks

during the adjudication at issue. Id. at 1730 (distinguishing

between individual statements made by lawmakers and

comments made in the “very different context” of “an

adjudicatory body deciding a particular case”).

Our Court recently considered Masterpiece Cakeshop

when rejecting a plaintiff’s claim that a law penalizing the

practice of conversion therapy on minors violated the

plaintiff’s free-exercise rights. Tingley, 47 F.4th 1055. In

Tingley v. Ferguson, we recognized that the Supreme Court

in Masterpiece Cakeshop made a critical distinction between

“hostile comments made by an adjudicatory body when

deciding a case in front of it, and comments made by a

legislative body when debating a bill.” Id. at 1086. And we

concluded that the plaintiff had not established a free-

exercise violation in part because the allegedly hostile

comments “did not take place in an adjudicative context”

like the commission hearing in Masterpiece Cakeshop. Id.

at 1087.

Yet the majority today expands Masterpiece Cakeshop

far beyond the adjudicative context. In finding antireligious

animus in this case, the majority focuses on statements from

two teachers on Pioneer’s Climate Committee, likening the

Committee to the Civil Rights Commission in Masterpiece

Cakeshop. Frankly, the attempted comparison is odd. In all

significant respects, Pioneer’s Climate Committee—a group

of teachers and staff from one high school in the District—

130 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

is distinguishable from the Colorado Civil Rights

Commission—a formal adjudicatory body.

The Climate Committee, comprised of Pioneer teachers

and staff who “address how the school functions in terms of

its . . . emotional and psychological climate,” is not a

decision-making body.

The Climate Committee lacks

independent authority to make decisions, and critically, it

had no role over the ASB recognition or derecognition of

student clubs, including FCA. Nor did the individual

teachers and staff on the Climate Committee hold relevant

decision-making authority.

The record instead supports a finding that the decision to

derecognize FCA at District schools came from District

officials. The majority implicitly recognizes this but argues

that without the Climate Committee, “there is no indication

that any other group or administrative body within the

District would have . . . ultimately called for [FCA’s]

derecognition.” The theory, apparently, is that the Climate

Committee made an animus-ridden recommendation to the

District that the District then ratified. But neither Plaintiffs

nor the majority identify any evidence of the Climate

Committee’s involvement in determining or advising on

FCA’s ASB status.

The majority first refers to a Climate Committee meeting

in which Committee members expressed their opinions that

FCA’s Statement of Faith went against the school’s core

values. But no one asserts that that meeting determined or

recommended derecognition, and there is no evidence that

The majority wrongly implies that the Climate Committee was made

up of District employees and staff from schools other than Pioneer. To

the contrary, the Climate Committee consisted only of Pioneer staff.

FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 131

the District decision-makers even knew of the Climate

Committee’s existence, let alone of the content of the

Committee’s discussions.

The majority next cites scattered comments from two

teachers on the Climate Committee that were made in

contexts other than Committee meetings. Far from

“[p]ublic, on-the-record comments” by an adjudicatory

body, however, isolated statements by individual teachers

are closer to “stray comments from [state] legislators

speaking for themselves,” which do not give rise to a free-

exercise violation. Id. at 1086–87. It is factually and legally

inappropriate in this case to impute comments of individual

teachers onto the District. Doing so risks making a school

district responsible for the words of each of its teachers and

staff. That conclusion would be untenable for school

districts, which often consist of hundreds, if not thousands,

of teachers. See Brief for California School Boards

Association and its Education Legal Alliance as Amicus

Curiae in Support of Petition for Rehearing or Rehearing En

Banc, Dkt. No. 94, at 13 & n.5.

The majority also improperly attempts to empower the

Climate Committee by asserting that the Committee

influenced Principal Espiritu, who the majority suggests was

really the ultimate decision-maker.

It is by no means clear,

In any event, Plaintiffs misapprehend the record with respect to

Principal Espiritu’s statements. And the majority adopts Plaintiffs’

misapprehensions. For example, Plaintiffs assert that Principal Espiritu

said that FCA’s religious beliefs were “of a discriminatory nature.” Not

true. Principal Espiritu actually said that FCA’s “pledge is of a

discriminatory nature.” Another example: Plaintiffs assert that Principal

“Espiritu himself admitted that the mere existence of FCA’s religious

beliefs was sufficient in his mind to deny FCA recognition.” Again, not

132 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

based on this record, that Principal Espiritu had the final say

on FCA’s recognition status. After receiving complaints

about FCA’s leadership requirements, Principal Espiritu

consulted District officials for guidance on whether the

requirements violated the District’s nondiscrimination

policy. In response, the District explained that all ASB clubs

needed to accept students in a manner consistent with the

District’s policies. The District further instructed Principal

Espiritu to derecognize any club that violated the District’s

nondiscrimination policy and informed Principal Espiritu

that a club that barred from leadership any students who

engaged in “homosexual activity” fell in this category. The

District specifically communicated to Principal Espiritu that

FCA’s leadership requirements impermissibly discriminated

based on sexual orientation and instructed Pioneer to

derecognize FCA. Principal Espiritu apparently then acted

in accordance with this guidance. Indeed, the majority

recognizes as much when discussing the factual background

of the case, explaining that it was the District who “decided

to strip [FCA] of its ASB approval.”

All that to say, the majority transforms the Climate

Committee into an adjudicatory body akin to the Colorado

Civil Rights Commission when, by all accounts, it was not

one. Given that the Committee was merely a group of

teachers and staff lacking decision-making authority,

Plaintiffs’ claim of animus collapses.

The majority’s merits errors do not end with Plaintiffs’

free-exercise claims; I join Part II of Judge M. Smith’s

true. Principal Espiritu testified that the existence of the Sexual Purity

Statement may have been sufficient to violate the discrimination policy.

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partial dissent and partial concurrence in which he dissents

from the majority’s holding that Plaintiffs are likely to

succeed on their free-speech claim. I agree with Judge M.

Smith that to reach this conclusion, the majority wrongly and

unnecessarily overrules our free-speech precedent, Alpha

Delta, 648 F.3d at 801, and ignores binding Supreme Court

precedent, Martinez, 561 U.S. at 695.

IV.

From top to bottom, the majority bypasses the “limited

and deferential” review we must give a district court’s denial

of a preliminary injunction. Sw. Voter Registration Educ.

Project, 344 F.3d at 918. The result is an expansive opinion

focused on past harms and based only in one party’s telling

of a complex, disputed, and underdeveloped record. And the

majority sets forth no limiting principle to the permission it

gives to school clubs to exclude students based on any

number of protected classes. Under the majority’s decision,

for example, are all religious student clubs exempt from a

uniformly applied nondiscrimination policy? Would a

public secondary school be forced to officially recognize a

religious student club that required its members or leaders to

adhere to racist, sexist, or xenophobic beliefs, or excluded

students based on their race or gender? See 303 Creative

LLC v. Elenis, 143 S. Ct. 2298, 2342 (2023) (Sotomayor, J.,

dissenting) (“How quickly we forget that opposition to

interracial marriage was often because “‘Almighty God . . .

did not intend for the races to mix.’” (quoting Loving v.

Virginia, 388 U.S. 1, 3 (1967))). The majority goes out of

its way to open doors without any consideration to or

discussion of what is behind them.

And unfortunately, to reach this sweeping result, the

majority waters down Article III, ignoring controlling

134 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

precedent that demands a “clear showing” of standing at this

preliminary procedural posture. Because we lack

jurisdiction over this appeal, I respectfully dissent.