UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FELLOWSHIP OF CHRISTIAN No. 22-15827 ATHLETES, an Oklahoma corporation; FELLOWSHIP OF D.C. No. CHRISTIAN ATHLETES OF 4:20-cv-02798- PIONEER HIGH SCHOOL, an HSG unincorporated association; CHARLOTTE KLARKE; ELIZABETH SINCLAIR, OPINION

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. 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