San Francisco Chronicle - (Sunday)
San Jose student groups on hold
A Christian student group that sued San Jose Unified to retain its status as an official school club has become the only official club in the district, at least for now.
Since a federal appeals court ruled 10 weeks ago that the San Jose Unified School District was discriminating against the Fellowship of Christian Athletes by denying official recognition to the group because of its refusal to allow LGBTQ students as leaders, that group has been granted official status — currently the only such status for any club in the
27,000-student district, as officials work on new antibias standards. And because of the unsettled policies, longtime student clubs in some schools — chess players, Frisbee tossers, older female students advising younger ones — have not reopened yet this school year.
“Clubs are an integral part of student life, and an extremely important factor for college applications — all students are advised to ‘get involved’ in student clubs,” said Maya Yaraslov, a parent whose daughter attends Leland High School. Yaraslov, who works as a student counselor in another school district, said she asked San Jose district officials why the Humane Society Club at Leland, which her daughter wants to join, hasn’t reopened, and was told only that “we’re working on it.”
But the issue that the district is working on — the conflict between anti-discrimination policies and freedom of religion — could be headed for the U.S. Supreme Court, which has been redrawing the boundaries between church and state. One legal commentator predicts the court would use the San Jose case to overrule its 2010 decision that allowed UC Hastings School of Law in San Francisco to withhold financial support from the Christian Legal Society because it excluded gays and nonbelievers. That 5-4 ruling, by the late Justice Ruth Bader Ginsburg, said a public institution can deny official recognition and subsidies to an organization whose membership is not open to all.
“That was the last time the pro-Christian religion side lost (in the Supreme Court) in the last 15 years,” said Ira Lupu, a former constitutional law professor at UC Berkeley and, more recently, at George Washington University. “If that case were to come up today, for sure it would get overruled.”
The Fellowship of Christian Athletes, or FCA, describes itself as a religious organization whose policies for its members include a “sexual purity statement,” declaring that “the biblical description of marriage is one man and one woman in a lifelong commitment.” The group says it has chapters in more than 7,000 schools nationwide. Those included three of San Jose’s six high schools — Pioneer, Willow Glen and Leland — until 2019, when the district began requiring clubs to be open to all students in order to keep official recognition. Without that recognition, they could still meet on campus but could not keep funds in a school bank account or be listed in the student yearbook.
In a 2-1 ruling on Aug. 29, the Ninth U.S. Circuit Court of Appeals in San Francisco said the San Jose district is violating the FCA’s freedom of religion. The majority opinion by Judge Kenneth Lee, an appointee of former President Donald Trump, said the district had granted official recognition to secular organizations with exclusive membership — such as the Senior Women’s Club at Leland High, whose members are all female 12th-graders — but had “targeted” the Christian Athletes’ group “because of its religious-based views about marriage and sexuality.”
The district’s lawyers disagreed, saying the current policy requires student clubs seeking official recognition to declare their membership open to all students, a declaration filed by the Senior Women’s Club but not by the Christian Athletes. They have asked the full appeals court, which has 16 Democratic appointees among its 29 judges, for a new hearing before a larger panel.
Meanwhile, said the district’s deputy superintendent, Stephen McMahon, the district is working on new standards for official recognition of student clubs and has not yet granted any this semester, except to the FCA under court order. They are still free to meet on campus, he said, but many clubs, perhaps most of them, have remained closed, and some schools postponed their traditional sign-up day, known as the “Club Rush.”
“All other clubs have to assure us that they will not discriminate before they will get official recognition,” McMahon said. Noting the ongoing court case, he said, “if we allow clubs to sometimes discriminate, we have a weaker case and a harder time defending our position. It’s unfortunate that it is taking so long.”
The district noted an article in the Pioneer High student newspaper, the Pony Express, which reported the school is requiring clubs seeking official status to submit a written constitution approved by its members, criteria for choosing leaders and spending plans for the year, among other things.
If the Ninth Circuit grants a hearing and overrules the panel decision, the Christian Athletes group will almost certainly appeal to the Supreme Court, which has regularly ruled in recent years for religious advocates and organizations challenging government policies.
A 6-3 ruling in June allowed a high school football coach in Washington state to conduct post-game prayers on the 50-yard line, where he was joined by players from both teams. That ruling also overturned the court’s 1971 decision setting standards for separation of church and state, which had required official actions to have a primarily secular purpose and prohibited excessive “government entanglement with religion.”
Earlier last term, the court required Maine to provide tuition funding for religious schools, and ordered Philadelphia to fund a Catholic agency that refused to place foster children with same-sex couples. Last year the court exempted church services from California’s restrictions on indoor gatherings during the pandemic. In 2019, the court allowed a Maryland town to keep a 40-foot cross on public land where it has stood since 1925, saying it was more of a historic monument than a religious symbol. And its June 24 ruling overturning Roe v. Wade, the 1973 decision declaring a constitutional right to abortion, came after decades of advocacy by religious conservatives.
Erwin Chemerinsky, the law school dean at UC Berkeley, said the court has dramatically changed its interpretation of language in the First Amendment that prohibits any law “respecting an establishment of religion.”
“For decades, the court took a robust view of the Establishment Clause, seeing it as embodying the words of Thomas Jefferson, that there should be a wall separating church and state,” Chemerinsky said. “But the current court does not believe in a wall separating church and state” and has a “very robust view” of the First Amendment’s guarantee of “free exercise of religion,” he said.
But a lawyer for the Christian Athletes group said the two sides should be able to work together without taking the legal case any further.
“Nothing in the Ninth Circuit’s opinion prevents the San Jose Unified School District from respecting students’ right to run their own clubs,” said attorney Daniel Blomberg of Becket Law, a conservative nonprofit. “We hope that the school district will do what school systems across the country have done for decades, which is to let students meet in clubs that reflect their interests.”
Although it excludes LGBTQ students as leaders, Blomberg said, “FCA welcomes all students to its clubs, and — like other clubs — helps students recover from the isolation and stress of these past couple of years.”