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, 

 v. 

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 viewpointdiscriminatory 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 thenupcoming 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 TwentyOne 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 nondiscrimination 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. 

I.

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

A.

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.

B.

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.”1

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 

1 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),

2 and that based on those obligations, he 

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

meeting.” 

C.

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)3student 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.” 

2 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).

3 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.” 

D.

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 flyers4 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 

4 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. 

E.

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 Sinclair5 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, 

5 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.

F.

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 nondiscrimination policies. 

Plaintiffs timely appealed the district court’s denial of 

the motion for a preliminary injunction. A divided threejudge 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 DefendantsAppellees 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.6

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 

6 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).

A.

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 nondiscrimination 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.7 

Accordingly, we find that Pioneer FCA has 

representational organizational standing to sue on behalf of 

its members.

B.

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

establishes that the defendant’s behavior has frustrated its 

7 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 ministryadvancing 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 nondiscrimination 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. 

V.

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 nondiscrimination 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).8

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 

8 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 nondiscrimination policies fails all three. 

A.

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.9In 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 

9

“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 

inclusivenessis 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.

B.

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 nondiscrimination 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 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 47

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. 

C.

“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. 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 49

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.10 Before the Climate 

10 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 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 51

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

arguably demonstrate animus by government decisionmakers 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.11 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.

11 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 AllComers Policy against FCA because of its religious beliefs.12

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

12 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.13 The remaining factors also

support granting Plaintiffs’ requested injunctive relief. 

13 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.14

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.

14 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. 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 61

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 faithbased 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. ASBrecognized 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. NonASB 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. ASBapproved 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,1stating 

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

1 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 “antigay 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 ASBrecognized 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.”2 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. 

2 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 ASBapproved 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 limitedpublic-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 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 73

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 policy3is 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 

3 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. 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 75

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 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 77

criteria.4 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 

4 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 “nondiscriminatory 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 allcomers policy at issue in Martinez. Affinity-affiliation 

requirements may be fine, but FCA’s faith-based 

requirement is not. This is textbook content discrimination.5

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. 

5 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). 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 79

Second, the religious club in Martinez imposed faithbased 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.6 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 

6 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 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 81

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 churchoperated 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 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 83

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 ministerialexception 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 studentinitiated 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 PlaintiffsAppellants, 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.”7Id. 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 

7 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 allcomers 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).8

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 

8 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). 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 91

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 “AllComers 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.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 93

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. 

I.

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. Religionburdening 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 
94 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD

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 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 95

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 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 97

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 allcomers 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.”1

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”)

1

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 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 99

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.

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. 

A.

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 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 101

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.1

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 

1 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.2

2 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.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 103

B.

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.3 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 

3 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.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 105

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 ASBapproved 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. 

C.

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 AllComers 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.”4 

4

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 freeexercise claims and that the remaining preliminaryinjunction 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.5 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 

5 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

A.

As a preliminary matter, I would deny all pending 

motions to supplement the record on appeal. After the threejudge 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.6 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. 

6 This was Plaintiffs’ second attempt to introduce extra-record evidence, 

the first being the post-panel-argument Rule 28(j) letter that the threejudge 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”).7 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. 

B.

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 

7 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).8 

“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). 

C.

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 

8 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. 

1.

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 nonparty 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).9

2.

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] 

9 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) (summaryjudgment 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. 

A.

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).10

1.

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 

10 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, preliminaryinjunction record—even though doing so has no impact on the relief to 

which the [majority concludes that] plaintiffs are entitled.” 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 125

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.11 

Id. at 1878. In fact, we have since recognized the decision’s 

critical emphasis on an express grant of discretion, i.e., a 

11 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.12

2.

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 

12 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. 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 127

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 newlyadopted 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. 

3.

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.13 

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 

13 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’ religiousanimus 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).
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 129

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 freeexercise 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.14 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 

14 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 freeexercise 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.15 It is by no means clear, 

15 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. 

B.

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. 
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 133

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.