Litigation Update: FCA v San Jose Unified School Dist.

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Chayila Kleist:  Hello, and welcome to this Federalist Society Webinar call. Today, October 5, 2023, we’re delighted to host a litigation update on Fellowship of Christian Athletes, FCA v. San Jose Unified School District. My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s program, as The Federalist Society takes no position on particular legal or public policy issues. Now, in the interest of time, I’ll keep the introductions today brief, but if you’d like to know more about either of our guests, you can access their impressive full bios at fedsoc.org.

 

      Today, we are fortunate to have with us Daniel Blomberg, who is Vice President and Senior Counsel at the Becket Fund for Religious Liberty. Before joining Becket in 2013, he clerked for Chief Judge Alice M. Batchelder of the U.S. Court of Appeals for the Sixth Circuit and served as litigation counsel with Alliance Defending Freedom. Additionally, and perhaps most pertinent to our discussion today, he is also one of the counsels who represents FCA in this case.

 

      Also joining us today as our moderator for this discussion is Casey Mattox, who is Vice President for Legal and Judicial Strategy at Americans for Prosperity. Prior to coming to Americans for Prosperity in 2019, Mr. Mattox served as Senior Counsel and Director for the Center of Academic Freedom at the Alliance Defending Freedom. He has also worked as legal counsel for both the Christian Legal Society and the Rutherford Institute. Throughout his career, he has litigated in 35 states and also testified three times before congressional committees. And I can leave it there.

 

      One last note: throughout the panel, if you have any questions, please submit them via the question-and-answer feature found at the bottom of your Zoom screens so that they’ll be accessible when we get to that portion of today’s webinar. With that, thank you all for being with us today. Mr. Mattox, the floor is yours.

 

Casey Mattox:  Thank you very much. And thanks to The Federalist Society for hosting this program on a very important decision that some of you may not have heard about that we want to make sure was brought to your attention because it impacts the First Amendment rights, especially of students on K-12 and on college campuses all over the country, especially in the Ninth Circuit but, frankly, has broader implications, I believe, for First Amendment rights. And so, we thought it was important to flag this case and have a good discussion about this case.

 

      So I will give you just a little bit of a background on this case, and then we’ll ask a lot of questions of Daniel, who is intimately connected with the decision because he argued it at the Ninth Circuit, as you heard. So, obviously, you have student organizations all over the country—religious, political student organizations, ideological student organizations—that typically will choose leaders who actually share the beliefs of the organization. There’s nothing terribly surprising about that.

 

      What has happened over the last couple of decades or so has been this growing conflict between that historical practice, going all the way back to even decisions like Widmar v. Vincent, where the Supreme Court had finally overcome the questions about whether or not these groups can be present—religious student groups can even be present on the same terms as other student organizations. But you’d have these -- questions have been arising over the last couple of decades or so about the supposed conflict between nondiscrimination rules that the schools have and religious, political, and other student organizations where they would choose leaders who shared their religious convictions—or political, in some cases. And so those conflicts have led to a number of cases. 

 

      Some of you -- as you heard from my bio, I was -- previously been at the Center for Law and Religious Freedom at the Christian Legal Society. CLS has done yeoman’s work litigating these issues all over the country for CLS chapters and for other student organizations that have faced this, and I was -- participated in some of that litigation work earlier in my career. CLS also was co-counsel in this case with Daniel, as Daniel, I’m sure, will talk about as well.

 

      And probably even deeper than that, Kim Colby, who we weren’t able to -- to be able to have on with us here. One of the things I think some people don’t know is that the Equal Access Act, which is also important in this case -- which, basically, a federal statute from the 1980s that protects the rights of religious student organizations -- religious and political student organizations on high school campuses across the country. Kim Colby was actually—now with Christian Legal Society—instrumental in that law actually going into effect. So CLS has a long history working on these issues and has been instrumental, really, in getting us to this point. But these cases have continued to bubble up.

 

      I litigated the CLS v. Martinez case—was part of the team there—where the Supreme Court, of course, decided that -- and sort of the low-water mark on these cases, the Supreme Court decided by a 5-4 vote that it was permissible for a school to enforce an all-comers policy. The parties there stipulated that the school had interpreted its nondiscrimination rule as an all-comers policy, so the Court gave force to that stipulation—I will say, ignored the stipulation. The all-comers policy was not actually being enforced, as the dissent discusses in that case. But the Court said, “If a school decides to have a total all-comer’s policy where every student organization is open to everyone in leadership,” that they can do that and apply that to everyone. 

 

      The Ninth Circuit then had another decision, Alpha Delta Chi v. Reed, that extended that decision and said that, at least in the Ninth Circuit, they were going to interpret that to mean, generally speaking, that your more typical nondiscrimination rule -- that they could, basically -- schools can pose a rule like that using the typical nondiscrimination rule—so no religious discrimination—and could tell the religious student groups and everybody else, “No discrimination on the basis of religion,” while still permitting other groups to choose leaders based on commitment to the organization principles as long as those things were not otherwise excluded under the nondiscrimination rule. So the Ninth Circuit really sort of expanded CLS v. Martinez well beyond what the Court actually had decided in CLS v. Martinez when it decided Alpha Delta Chi v. Reed.

 

      That brings us now up to where we are in the Ninth Circuit, and I’ll pull Daniel into the conversation here to talk about the facts, first of all, of this case, Fellowship of Christian Athletes v. San Jose Unified School District.

 

Daniel Blomberg:  Well, thank you, Casey. It’s a pleasure to be here. And I just want to echo, for a second, your point about the Christian Legal Society and about Kim Colby, particularly their leadership on these issues going back, literally decades—Kim, instrumental on the writing and passage of the Equal Access Act, which protects all student groups and their ability to speak freely. And really, I mean, just empirically speaking, the two student groups that are most -- two types of student groups who are most protected by the Equal Access Act are religious groups and LGBT groups because those are the ones that—depending on which part of the country you’re in—are least favored by the powers that be in various school boards.

 

      So Fellowship of Christian Athletes case concerns a religious student group that was meeting on a San Jose Unified School District campus, had been there for almost two decades—since the early 2000s. No problems. In fact, even their detractors said this was a great club, and they were great kids. And that all changed in the blink of an eye and not for anything that happened. No one actually said, “Hey. I wanted to be a part of this group, and they excluded me.”

 

      Instead, a teacher received a copy of religious beliefs that identified marriage as being between one man and one woman and said, “I can’t believe folks on our campus—a student group on our campus—holds these beliefs.” And he said -- he had to -- without taking time to process it, without even talking to the student group that had been there, again, for decades -- to ask them, “Hey. Am I missing something? Do you actually require your members to believe this?” which is what he thought. He just went and put it on his whiteboard at school. And he put it up there, and he wrote underneath it, “It makes me sad that people on our campus believe this. How does it make you feel?” 

 

      And then he followed that up by writing a letter to the principal and saying that these beliefs are—and I apologize, Mom -- these beliefs are bullshit, and “as an adult on campus, I should attack them, and I should drive them off. They have no place in a public high school because I find these views objectionable, and I’m not going to allow ‘religious freedom’ to be an excuse for people to hold views that he disagrees with and that he thought that the club required all members to adhere to the club’s statement of beliefs,” which was not true. 

 

      Everyone was welcome to be a part of the club. Everyone was invited to be a part of the club, and in fact, people had for decades all come and participated and enjoyed the club widely—broadly. The only request was that leaders—the folks who were leading the group in prayer, who were leading the group in bible studies—affirm the beliefs of the club: the thing that brought them together. But that wasn’t -- that didn’t stop this teacher. He didn’t take any time to ask any questions. 

 

      The principal called together a meeting of, what they called, the climate committee, which is kind of the group of the department chairs and other administrative officials, and they decided they needed to take a united stand against this club, again, without having talked to the club, without having talked to the students that were a part of their campus. There were literally students in this teacher’s classroom who saw the religious beliefs taped to the board that were part of FCA, and he could have talked to them. He could have asked them, but he didn’t. He didn’t try, didn’t bother—in the rush to judgment—to check to see what was actually at issue here. And within two weeks, for the first time in the history of the San Jose Unified School District, a club was derecognized for violating the nondiscrimination policy, and that is because they had this statement of faith, they required their leaders to hold. No club had ever been derecognized for that reason by the San Jose Unified School District.

 

      At the same time that they were busy derecognizing this FCA club, they were recognizing a satanic temple club that had been formed for one reason, and that was to protest and mock the FCA club. And with the teacher’s encouragement, protest and mock they did. Students would show up outside of FCA meetings, holding signs, calling their beliefs hatred. There was at least one time that a student rushed into the meeting, screaming obscenities at the students.

 

      There was another situation where a school newspaper’s reporters came in uninvited and took hundreds of pictures of students—every student who started to speak—and got a camera sometimes within just feet of their face, snapping dozens of pictures of them. A teacher who was there, who saw this happening, said, “I’ve never seen this kind of discrimination, this kind of bullying from our school district for anybody, any club.” And it was just really, really unusual. Other teachers called these evangelical kids charlatans—said, “They’re not the least bit Christian. They choose darkness over knowledge. They perpetuate ignorance.” 

 

      And then eventually, it got to the point where the same teacher who started all this wrote to the principal again and said, “Hey, it’s not enough that we derecognize the club, not enough to derecognize the kid, I want to kick them completely off campus. I want them to have no presence here whatsoever. And so can we accuse them of sexual harassment because of their religious beliefs?” They didn’t go quite that far. This was the one place they showed restraint. But every FCA club in the San Jose Unified School District was kicked off in just a span of -- a short span of time, despite having been on campus for decades with no trouble.

 

      Now, at the same time, the school district was saying, “Hey, you FCA kids are out because you discriminate, because you require your leaders to affirm these religious beliefs, and that’s religious discrimination—sexual orientation discrimination” -- at the same time they said that was not good, the school district also recognized the Big Sisters/Little Sisters club. The same principle that said, “We have to take a united stand against FCA,” said, “Hey. Big Sisters/ Little Sisters is great. We recognize them here. We want them here because we want our senior girls mentoring our junior girls—our younger girls.”

 

      So it’s clearly a sex-based distinction that was intentional; it’s what they were doing. But it was okay to make that kind of distinction under the nondiscrimination policy and not FCA’s long-standing and undisputed distinction that they’d had in place. The same kind of unequal standard was used to allow in the Senior Women club, the National Honor Society, which was allowed to exclude students from a club that provided access to scholarships based on good moral character—what the club decided was good moral character.

 

      Interestingly enough, the same teacher that had started all this brouhaha against FCA ran -- advised the National Honor Society, and he was the one who was often making the good moral character judgment for what students were going to be allowed into the National Honor Society. And there were, in fact, a multitude of district programs that excluded students based on sex or race, including groups like the Girls Circle or the Latino male mentorship group.

 

      In fact, at oral argument last August, when we were talking to the Ninth Circuit about this unequal treatment that FCA was facing, the school district admitted that it would allow the KKK on campus. They would allow a racially discriminatory group, as long as the racially discriminatory group—whose mission was to advance only one racial group—was willing to allow people of other racial groups to participate in that mission of advancing only one racial group.

 

      So this was the situation the school district was facing -- or that FCA was facing, and the district admitted that it had discretion about how it was doing all this. It didn’t have to. It chose to come after FCA. It chose not to go after all of these other students and student groups and district programs that were all under the same “nondiscrimination policy.”

 

Casey Mattox:  And I think that the KKK point is always an interesting one here because I think about where a student organization like FCA would be in a circumstance where someone, for example, wanted to actually be in FCA leadership and held racist views. Right? Well, that would be inconsistent with FCA’s religious convictions, and yet, if they were denied an officer position because of the fact their religious convictions were -- or because that racist view was inconsistent with their convictions, that would actually violate, supposedly, this principle. Right? So you have this strange kind of dynamic, I think, in many of these cases.

 

      So I believe that the district actually even attempted to just eliminate student organizations in order to deal with this problem even at one point. Is that correct?

 

Daniel Blomberg:  Yeah. That is correct. And that comes later. So what had happened here is that FCA had been on campus for a while, everything was going fine, then all of a sudden, a group of faculty and students got a bee in their bonnet, came after them, got them derecognized, got them mistreated, and they had all these protests and things of that nature going on.

 

      And I really encourage everyone to read Judge Callahan’s excellent opinion. That really just carefully lays out the facts, quotes original sources, and just gives a very clear picture of the kind of hostility that these clubs -- the students were facing. In fact, the en banc decision from a couple weeks ago was preceded by a panel opinion, and Judge Kenneth Lee—who was not a part of the en banc panel but who wrote the majority opinion from last August—talked about the -- just the really remarkable and unusual animus that the district displayed towards the religious beliefs at issue here. And so, I encourage folks to read the record so they can get a sense of what it was like.

 

      And that continued to be a problem throughout the pendency of the case. So when Judge Lee and Judge Forrest issued an injunction last August, saying, “Hey. You got to treat FCA equally. You got to restore the status that they had held for decades before all this controversy happened,” the school district responded by saying, “Okay. Fine. They can have stat. They can be a recognized student club, but we’re shutting down the forum.” And so, no other student clubs were allowed to meet for the entirety of the fall semester last year.

 

      And, of course, this was a major problem for a lot of kids. These clubs -- the reason why they have clubs is they’re important. They’re a big part of students’ lives. They help them with academic achievement. They do all sorts of good things on campus. But instead of just going back to where things were before and just letting everybody continue to meet and be a functioning club, the school district just shut down the entire forum, which was really remarkable, unfortunately.

 

Casey Mattox:  And just to underline. There was never a moment in the fact pattern in this case where someone was actually denied a leadership position within FCA. All of the fact pattern that you just described is the victimless crime scenario. Right? This is basically just someone found out that they believe these things.

 

Daniel Blomberg:  That’s right.

 

[CROSSTALK]

 

Daniel Blomberg:  Someone somewhere believed something that somebody didn’t like. And you know, that’s -- disagreement is part of what makes us American. That is a good thing. It is a good thing that we disagree on things like religion and on sex and on other issues. Right? That’s healthy. What’s not healthy is using governmental power to try to control the debate and to silence one side of it. And unfortunately, that’s what the district did here for a time, where it just decided that FCA was beyond the pale. The Big Sisters and Little Sisters, the National Honor Society, even the KKK would be welcome on campus, but not the FCA.

 

Casey Mattox:  Yeah. Well -- and maybe at the end, we can talk a little bit about some of these other cases that have happened. But I know that’s actually not that uncommon of a fact pattern where the group is derecognized under a nondiscrimination rule, but not because there’s actually a live controversy in that way, where someone has been denied a leadership position. It’s usually on paper.

 

      But I want to make sure we get to the en banc decision here and kind of walk through it because it is pretty significant—actually overturns a major Ninth Circuit decision. So walk through -- the Court decided this case, at least in part, on free exercise grounds. Walk through the cases that the Ninth Circuit looked at—the en banc panel looked at—and said. “The prior Supreme Court precedent—recent Supreme Court precedent—has changed the way we understand the law in this area.”

 

Daniel Blomberg:  That’s right. That’s right. So to do that, we’re going to need to go back to the couple of cases that you mentioned earlier, Casey—the Martinez case and the Alpha Delta Chi case. And we really even need to go back a little bit earlier, to the early 1990s, to a case called Employment Division v. Smith, where Justice Scalia wrote a majority opinion saying, “Listen. The free exercise clause isn’t worried about governmental regulations unless they’re not neutral and generally applicable.” Right? So if it’s neutral and generally applicable and it’s a governmental regulation that burdens your faith, it’s kind of too bad, so sad. If the government decides to outlaw wine, then the Catholics are just -- they just can’t have mass. Right? As long as they’re consistent with it.

 

      And so that was -- it led to a lot of concern, a lot of bipartisan concern. Congress passed a major law that rolled that back at the federal level, called the Religious Freedom Restoration Act, but it couldn’t fix the First Amendment. Right? And the Religious Freedom Restoration Act applies at the federal level. It doesn’t apply to the San Jose Unified School District, and it doesn’t apply to state universities such as the school in Christian Legal Society v. Martinez—a law school that had discriminated against a religious student group by excluding them from recognition, similar to the -- kind of similar set up to what we have in this case.

 

      And what was different about that situation -- the Supreme Court had decades and decades of jurisprudence, saying that we really robustly protect the right of students to associate on campus, on public university campuses, including student groups that are connected with terrorist groups. Right? There’s still a free speech and freedom of association right for those groups to come together and to organize around their ideas, around their identity and mission and purpose.

 

      But that all changed in CLS v. Martinez, where the law school said, “Well, actually, we have this other interest. It's not about students learning and forming around ideas. It’s actually crushing their ability to form around ideas. We’re going to -- we have something called an all-comers policy, and that means you have to accept everyone to be a member or leader of your group. All-comers have to lead your group.” So if you have a vegan group, you got to accept the hunters. If you’ve got a democratic group, you got to accept the Trumpsters. Everybody is in. Right? And the Supreme Court said, in a 5-4 decision, “That’s okay. That’s okay because it’s even handed. It’s not viewpoint discrimination. Every viewpoint suffers equally.” And so, it was okay.

 

      And then, like Casey was saying earlier, the Ninth Circuit took it one step further and said, “Well, that applies even when you’re not imposing an all-comers policy, even when it’s just a standard nondiscrimination policy. And that means groups like religious groups can’t ask their leaders to agree with their faith because that’s religious discrimination.” Right? You’re making a religious distinction when it comes to leadership. But since political categories in most places around the country aren’t a part of nondiscrimination policies, that meant that the Republican group could exclude Democrats and the Democrat group could exclude Republicans and vice versa. You could have a communist group that excludes capitalists and all that because they’re not a part of the nondiscrimination policy. Right? They’re not regulated by the nondiscrimination policy.

 

      And the Ninth Circuit said, “That’s okay under Martinez because there’s no animus here. There’s no -- they’re not regulating the religious groups because they hate them. They’re regulating the religious groups because they love them. They want to protect them from religious discrimination. And so, the Court said, “If there’s a benign motive, then there’s no free speech or free exercise violation.” And that was what Alpha Delta Chi said. 

 

      And that brings us to today. That brings us to the FCA case. And the Ninth Circuit en banc said, “That whole story has changed, and it’s changed in really fundamental ways, and it’s changed because of a couple of recent cases—a series of recent cases, including Fulton v. City of Philadelphia, Tandon v. Newsom, and Reed v. Town of Gilbert, which were free exercise and free speech cases that all said, basically, “The First Amendment’s not trying to regulate the hearts of government officials. It’s not trying to regulate their motives. It’s regulating their actions.” It’s the free exercise clause. And so, when the exercise of religion is being regulated and burdened by the government, that’s what’s protected, regardless of governmental motive.

 

      And so, here, it didn’t matter whether the government had a positive or negative motive in its regulation. Their hearts could’ve been pure—they really thought that holding these religious beliefs was really, really bad. Right? That’s not what matters. What matters is this content-based, viewpoint-based regulation of a religious group’s speech and of their religious identity. And so, the Fulton case was really powerful for that. It said, “Listen. Under the Smith general applicability, neutrality test that we were talking about earlier, if the government has discretion to give exceptions, then no longer are we talking about a generally applicable or neutral policy.” We’re talking about a policy that the government can choose -- pick and choose winners. And when it can pick and choose winners, it has to have a really, really good reason not to allow religious exercise to take place. You can’t burden religion when you have discretion to allow other types of things to happen.

 

      Under the same way, in the Tandon case -- the Tandon case said, “Listen. If you’re treating secular interests better than religious people, you got to have a really, really good reason to do that.” Right? And so, as applied here, the court said, “If you can treat the Senior Women club and respect their ability to gather around their mission and purpose of advancing senior women, then you have to have a similar type of accommodation for religious groups unless you have a really good reason.” And here, the school district hadn’t tried to make an argument that it could possibly have a strict scrutiny reason for banning a great club from having the leaders that believed in the things they were praying about and teaching about.

 

      And so, these bedrock decisions—that’s how the Ninth Circuit described them -- these bedrock decisions in Fulton, in Tandon changed the way the free exercise clause and the free speech clause operate, in that they take out this kind of intent-based question that the Alpha Delta Chi case relied on and instead just asked the question of “are religious groups being treated equally with other types of groups or anything else that implicates the government’s interests?” Right?

 

      So one of the arguments here by the school district was, “We have a really, really good -- really, really important reason to regulate this FCA club because they’re engaged in religious discrimination. But we can have the Latino male mentorship society, which discriminates based on Latino status and discriminates based on sex.” Right? And what the school district said was, “That’s a school program, and school programs are different from student clubs, and you shouldn’t compare the two.”

 

      And the Ninth Circuit said, “No. That’s incorrect. What we’re looking at is what’s your alleged interest? What’s the government’s asserted interest? The interest here is preventing discrimination on certain identified bases, and if you’re going to allow your own programs to discriminate based on nationality or ethnicity or sex, then you have to -- again, have to have a really, really good reason before you punish a religious group from asking their leader -- for asking their leaders to share their faith.”  

 

      The last point—the last big bedrock principle—that the en banc court recognized was one laid down in a case called Masterpiece. And this was the cake baker case from a couple terms ago that said, “Listen. The government can’t act with hostility toward religious actors when it’s regulating.” And the en banc court said, “Here again, we see a bedrock violation of the free exercise clause.” Because here, you have a really clear example of religious groups being discriminated against because of their religious belief. Right? It was precisely the belief that motivated the response by the government in this instance.

 

      And the court went out of its way to emphasize a point that I think is really key, saying, “Listen. We’re talking about kids here. We’re talking about teenage students, and the people who are discriminating against them weren’t just like random strangers, they were the government officials who were responsible for grading their papers and for writing their college recommendation letters and all those kinds of things. They have an influence.” The “power dynamic” is the term the en banc court used. “The power dynamic here is very disproportionate, and so we’re cognizant of that in this hostility analysis.”

 

Casey Mattox:  Yeah. I was thinking about that when you were talking about the fact that you’ve got the teacher writing and attacking the FCA group’s religious beliefs up on his board with members of FCA in the room—students in the room whose papers he’s going to grade. And I was thinking about that fact. Like, how do you -- as a student, what do you say? Right? As a ninth-grade student in a teacher’s classroom like that, do you say anything? If you do -- it's a challenging position to put a student in.

 

      But so it -- So, basically, you have then -- I mean, to kind of just quickly summarize the -- I think the decision in Masterpiece would say, “Look. If you’ve got hostility against religious beliefs, that’s a First Amendment problem”—if government is acting specifically because it’s hostile to your religious convictions. But that’s also not necessary, which is sort of the mistake that the en banc court is essentially saying—that the Alpha Delta Chi decision it had made was to sort of assume that if government wasn’t discriminating -- even if its actions discriminated against you, if it didn’t mean to, then that’s okay. As long as it was benign, the fact that you were treated differently is permissible. So the court’s basically saying no actual discrimination or intentional discrimination. Either way, that’s a problem. So you get the actual -- I mean, I’ll ask you. How did it feel to log on to Lexis, Westlaw and see the red flag beside Alpha Delta Chi? That’s a rare opportunity for an appellate litigator to actually get the overruled word in an opinion that you’re litigating.

 

Daniel Blomberg:  No. It’s all great. It’s all wonderful. And the reality is that these students win under Alpha Delta Chi. Right? These students, what they went through, the years of discrimination that they faced, and the hostility they faced, even after a federal court ruled to shut down the entire forum, they won under any conceivable test. But what’s so key here is it took so long because it was the wrong test in the first place. They should never have taken so long to get protection for these kids, to keep this from happening to them or for any other kid—to have their own government officials, their own school, coming down on them like a ton of bricks like this.

 

      And Alpha Delta Chi was at the root of that problem. And frankly, so was Martinez. And what the en banc Ninth Circuit recognized is that Alpha Delta Chi is no more; it’s been undermined and overruled by existing Supreme Court precedent and that Martinez really has been substantially narrowed by cases like Fulton and Tandon and Town of Gilbert—all these cases that changed the way we approach these kinds of issues. And, really, en banc court’s opinion -- they said, “We’re taking Justice Ginsberg seriously when she said this is a case about stipulated facts.” And really, you kind of get the sense, reading this opinion, that outside of those stipulated facts, Martinez doesn’t apply.

 

Casey Mattox:  Yeah. I think the other thing there with Martinez -- I mean, a lot of people -- when the decision came out in Martinez, very few schools—almost no schools—have policies like the one that the Court sort of assumed in CLS v. Martinez, which is an all-comers policy. And the reason they don’t is because you have schools all over the country, other than the school at issue in CLS v. Martinez, which was a stand-alone law school -- almost every other school in the country has groups that make leadership decisions, at least in part, on a basis that is usually in a protected category in a nondiscrimination rule if you were sort of reading them in this hyper-literal way. For example, I mean, every university that has fraternities and sororities, that has intramural sports teams, that have men’s and women’s singing groups as part of the school -- we almost never think about those—or people generally don’t think about those—in the same breath as they would with discrimination on the basis of protected class because we all understand that’s different. And part of the issue, I think, in these cases is, do you also understand that it’s not religious discrimination in the way that we typically understand that term when you’re dealing with a religious student group wanting to choose leaders who share its religious beliefs, as opposed to, for example, a chess club deciding that members of this religion are not permitted to be in leadership in our chess club? Right? Those are different things, just like they would be for -- the Women’s Glee Club is not in the same position as a National Honor Society announcing no women need apply. Those are very different types of things.

 

      So I think what that means is when you overturn a decision like the Reed decision that broadly expanded the reach of CLS v. Martinez, it really does sort of limit it to its facts, and there are virtually no schools that are actually going to have policies like the ones in CLS v. Martinez.

 

      So the net result, I guess, of this decision -- I mean, kind of tick through some of what you see as being the actual practical results coming out of this decision. This is, by the way, 134 pages of opinions in this case. This is what happens when you overturn a previous circuit precedent in a First Amendment issue by an en banc panel—you get 134 pages of opinions.  So, Daniel, what do you think the overall big impacts here are?

 

Daniel Blomberg:  Well, it’s a huge precedential impact. Right? Alpha Delta Chi is no more. It will no longer haunt student groups of any kind and allow them to be discriminated against by government officials. It also means that the courts are taking seriously what the Supreme Court has been doing in cases like Fulton and Tandon, and that’s seriously narrowing cases like Martinez and Smith and the ways that they have -- those older standards weren’t as protective of religious exercise and free speech as the new rules are.

 

      The net result in a lot of ways is that the Ninth Circuit went from, frankly, some of the nation's worst jurisprudence on these kinds of free speech and free exercise issues to the best. And it wasn’t even close. It was that -- the vote here was 9-2 to protect the student group and to protect them on these three bedrock principles—the free exercise clause. Under Fulton, if you have discretion, then you got to use it to protect a religious exercise, unless you have a very good reason not to. Under Tandon, if you’re treating religious student groups in one way and secular groups another way, you got to treat them at least -- the religious groups at least as well, unless you have a really good reason not to. And under Masterpiece, you can’t act with hostility towards religious groups. The government can’t use its power to squash religious beliefs that it just doesn't like. And those are now bedrock principles, clearly articulated in an excellent opinion by Judge Callahan and joined by an overwhelming majority of the Ninth Circuit. 

 

Casey Mattox:  I’m going to ask one more question, and I would ask people -- some of you are already putting questions in the Q&A function, but please do that, and we will get to as many of those as we can. But I wanted to come back to this point that I said I would. I think there is a tendency to see the facts of this case -- and they are pretty extreme—the attack that the student groups dealt with in this case from teachers/administrators who were in charge over them. But I think -- my sense is that this is not terribly uncommon. We both litigated other cases that had fact patterns that looked frighteningly similar to the fact pattern in this case.

 

      And so, I wanted to see if you had thoughts on how that’s -- and the other reason I think about this question -- I saw the -- there was an article yesterday, I believe, from NBC News that was talking about the Colorado Supreme Court taking the, I guess, third or fourth or whatever it is Masterpiece Cakeshop case up, and they referred to the decision in Masterpiece before as a technicality from the Supreme Court, as if it was sort of a one-off thing that happened in that case—the sort of animus that was the Supreme Court’s decision in that case. But speak to some of these other student organization cases that you’ve been litigating recently and the way we’ve seen this sort of treatment in some of those cases as well.

 

Daniel Blomberg:  Yeah. Unfortunately, this is kind of, I would say, both sadly and happily typical. Let me take the second part of that first. Happily typical in that the students, by and large, really are as gutsy as these FCA kids. I mean, these students here were particularly stout and strong, given what they had to face. But in all of these cases, you have that same power dynamic at play that we were talking about earlier—same unequal turf and terrain that the students are having to operate on, and they’re gutsy. And they’re gracious about it, too. They stick around, and they’re not responding in kind. They’re asking for an equal place at the table, and so that’s the good part. In many of these cases I’ve litigated, I see this over and over again.

 

      The bad part, though, is, frankly, while it was clearer, the hostility here, it’s just as true in all of these cases. Right? The reason why the religious groups are getting kicked off is because people don’t like their religious beliefs. They’re hostile to the -- government officials are using the power to squelch religious beliefs they don’t like. And a very good example of this is a pair of cases just decided two years ago by the Eighth Circuit against the University of Iowa, same campus. And the University of Iowa came after a religious student group who held views it didn’t like, and they did it not just -- when the Court said, “Hey. You can’t do that,” they said, “Okay. Fine. We won’t target this one religious student group. We’ll target them all.” And so they threw all the religious student groups off campus. I don’t think they got the message very clearly there.

 

      And so the second case came back on behalf of Intervarsity Christian Fellowship and said, “No. That’s not right.” And the Eighth Circuit said -- and I wrote this down. They said they were hard-pressed to find a clearer example of viewpoint discrimination than what they’d seen in that case. So unfortunately, while this is a really unusual and unfortunate example in the FCA case, the hostility is not unusual. And it’s consistent across the board.

 

Casey Mattox:  I believe, I actually -- if people are curious, I think I did a litigation update on that Intervarsity v. University of Iowa case a couple of years ago that should be on the FedSoc website because they also denied qualified immunity in that case against the university administrators, which was, perhaps, a surprising result. Qualified immunity usually will protect university administrators, but there, the Court had said that they should have known that what they were doing was unconstitutional because the same administrators had been to the Court before and been told that you can’t do this.

 

      Okay. We do have some questions in the chat. So first, I’ll go ahead and ask Abby Smith’s (sp) question. “Where do we go from here? What’s the procedural posture of the case at this point?”

 

Daniel Blomberg:  And before I answer that question, I want to flag something that’s very, very important about this case, and that is this victory belongs to a cast of thousands. I mean, first, it belongs to the students and the very hard work they did and the families that, literally in tears, made the decision to keep forging ahead, despite the kind of discrimination they were facing, but also the Christian Legal Society who took this case on from the very beginning, and groups like the Jewish Coalition for Religious Liberty and Alliance Defending Freedom, First Liberty Institute, FIRE, Regent, leading law professors like Professor Michael McConnell, the students—actually, the students from the [inaudible 42:26] case, one of those Eighth Circuit cases, filed an amicus brief with First Liberty Institute in this case—ministries like CREW and Intervarsity, Navigators, Cardinal Newman.

 

      All of these different groups came together with the support of 23 states in a brief led by the State of Montana, saying that this just isn’t right. This just isn’t right, and we need to stop doing this to students in their formative years, using government power to exclude their views, to exclude their ability to form around their religious identity. And so, just grateful for these groups and these individuals who stood up -- and on a compressed schedule both times. We had an emergency appeal last summer that all these different groups came in and filed amicus briefs on in a very, very short period of time. And then we had a compressed schedule at the en banc stage, too. Things were moving very quickly, and folks did the hard work of showing up. 

 

      So to answer Abby Smith’s (sp) question, we’re not sure what’s next in the litigation. The district did not seek en banc review—super en banc, which you can do in the Ninth Circuit. And so, we are -- the next stage is either they’ll go to the Supreme Court, or it’ll go back down to the district court. The facts in the district court are even better for FCA. There’s a lot -- the record’s been fully developed, and so there’s, I think, a reasonable chance that the case will settle at this point. We’re hopeful that’ll be the case. I know FCA just really wants to get back to doing ministry, just like they were doing for two decades. And so, we’re hopeful that’ll be the case.

 

Casey Mattox:  So there’s a question here also. I’ll let you kind of broadly speculate as much as you will. Given the narrowing of the CLS v. Martinez decision by the Ninth Circuit here, what do you think that means for CLS v. Martinez? I’ll leave it there. What do you think is the future of that decision going forward?

 

Daniel Blomberg:  So I think CLS v. Martinez had a pretty short expiration date on the day it was issued. Right? Especially because of the very, very unusual and narrow facts in it. That being said, it has been an unusually damaging decision. The reason why some children—children—did not have a normal high school experience in San Jose Unified School Districts, the reason why the entirety of some of these students’ experience was being official outcasts of the school is the Christian Legal Society v. Martinez decision. That decision empowered these administrators to think that they could treat children like that, using governmental power. And so while Martinez is a very narrow decision that should be understood narrowly—and I think eventually will be overruled as being inconsistent with fundamental First Amendment principles—it is a very damaging decision. And so, it needs to be overruled at some point, and I think it will be.

 

Casey Mattox:  Yeah. And it is extraordinarily difficult, I think, to square that decision -- even on the stipulated facts, it’s very difficult to square the decision with the decisions that had come before or after, frankly, on First Amendment grounds. And others have noted that CLS v. Martinez is very often, when it’s quite relevant to the cases the Court is citing or that the Court dealing with, that the Court just seems to sort of slide past it and not cite the decision—completely ignore it. And that’s usually a sign that the Court is struggling to figure out how does this fit with everything that’s been before.

 

[CROSSTALK]

 

Daniel Blomberg:  Maybe -- maybe -- maybe it’s like Lemon. In a short period of time, we’ll find out that it’s already been overruled.

 

Casey Mattox:  Yeah. It’s already been overruled. You thought that was still precedent? Sorry. We must have forgotten to tell you that.

 

      So the Smith case comes up also in some of the questions here and -- because, obviously, Smith is quite relevant, obviously, on the free exercise analysis here—helps to sort of frame the way the Court’s having to walk through the free exercise questions in this case. What do you think this decision tells us, I guess, about the future of Smith, or what do you think the future is there?

 

Daniel Blomberg:  Well, I think it tells us what the Supreme Court has been telegraphing for a while that Smith is really -- it’s not the rule, it’s the outlier. Right? Smith really only applies in a narrow subset of cases—a subset of cases that don’t deal with, for instance, churches selecting their religious leadership or that don’t deal with religious questions at a religious organization that is trying to decide on its own or issues of religious polity. These are all issues that the Supreme Court has told us over and over again are beyond the reach of Smith and that they are fundamentally protected by both religion clauses. They don’t apply.

 

      Smith doesn’t apply when we’re talking about something like Fulton, where somebody has discretion in administering a statutory or regulatory scheme. Smith doesn’t apply when you’re dealing with a situation where other types of groups are getting more favorable treatment. Smith doesn’t apply when the governmental regulators have hostility that’s motivating their actions, regardless of what the text of the statute says. And so Smith is increasingly a -- it’s an exception and not the rule.

 

Casey Mattox:  Yeah. And I think one thing -- you talked about some of the hostility some of the groups have gotten in these cases. That sort of hostility automatically takes you outside the realm of Smith because you can’t be both neutral as to religion and making the decision specifically because of the group’s religious beliefs in the first place. And so, we do see this, I think, frequently with these cases, that they’re targeted for that reason.

 

      And then we have a question here, I think, that really kind of hits the nail on the head in some ways, that very often, these cases, when you’re talking about discrimination, we weed out a word that had historically been relevant in the discrimination context, which was “invidious”—the difference between invidious discrimination and discrimination.

 

      Everybody on this call made a choice how to spend their time for this hour with us, and I’m very glad that you made the choice that you did. But you discriminated between two options. Right? You had an option to go this way or an option to go this way, and you chose to spend your time with us, and I appreciate it. But can you speak to that, Daniel, and the way that the -- we’ve sort of -- these cases have -- or some of the actions seem to have read out “invidious” from what had typically been the understanding of nondiscrimination laws like this—that you’re dealing with invidious discrimination and not reasonable choices. 

 

Daniel Blomberg:  The Eighth Circuit cases that we were talking about earlier, they’re a really good example of this. So we got the university officials who had made the decision to kick off the religious groups -- got them into a deposition, and we said, “Okay. Listen. You excluded the religious groups because of their religious beliefs, and you thought that was because -- you thought that was religious discrimination. Religious groups were asking their leaders to hold certain religious beliefs, and that’s religious discrimination in your view, and that’s bad because it violates the nondiscrimination policy. You also have sororities and fraternities on campus. They’re one of the -- they’re the biggest set of student groups you have on campus. They are limited to men and to women—or at least individuals who identify as men or individuals who identify as women. Tell us why that’s not discrimination and why that’s okay.” And the deponent literally started sweating—literally started sweating. It could not answer the question because exactly the questioners here—the questioners asking us this question—they lost sight of that. It lost sight of the difference between reasonable distinctions that are related to the mission and purpose of an organization and invidious discrimination that have nothing to do with it. Right?

 

Like you were saying earlier about the chess club—a chess club that discriminated on the basis of sex. Right? That would be much closer to invidious discrimination. But a religious group that identifies around religious beliefs—not invidious. That’s their identity. That’s who they are. And so, forbidding them from being able to make those kinds of reasonable distinctions doesn’t help anybody. It weaponizes nondiscrimination policies in a way they were never meant to be used. And it has a particularly bad effect on religious groups because they uniquely associate around, not just -- their belief often is the status for many of these different types of religious groups. Professor Tom Berg has written about this a good deal and a way this kind of weaponization of nondiscrimination policies unfairly targets religious groups. 

 

Casey Mattox:  Yeah. Well, Daniel, thank you very much. This has been great. I’ll welcome Chayila back on to close us out.

 

Chayila Kleist:  Absolutely. On behalf of The Federalist Society, thank you so much for joining us today and giving us the benefit of your valuable time and expertise, and thank you to our audience for joining and participating. We welcome listener feedback by email at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We’re adjourned.