Keeping Tabs on the Ninth Circuit
September 02, 2022 - This Week at the Ninth

This Week at the Ninth: School Groups and Minimum Contacts

school building

This week, the Ninth Circuit addresses the constitutionality of a school district’s decision to revoke official status for a student group that disapproves of same sex relationships, and the minimum contacts necessary to exercise personal jurisdiction over a foreign adult entertainment website.

The Court holds that the Fellowship of Christian Athletes, which had its official student club status revoked for violating the school district’s non-discrimination policy, is entitled to a preliminary injunction reinstating its status because it is likely to succeed in showing that the school district’s non-discrimination policy is selectively enforced in violation of the First Amendment.

The Panel: Judges Christen, Lee, and Forrest, with Judge Lee writing the opinion, Judge Lee writing a concurrence, and Judge Christen writing a dissent.

Key Highlight: “Under the First Amendment, our government must be scrupulously neutral when it comes to religion: It cannot treat religious groups worse than comparable secular ones. But the School District did just that.”

Background: The Fellowship of Christian Athletes (“FCA”), a student organization at San Jose public schools, requires students serving in leadership roles to abide by a Statement of Faith, which includes the belief that sexual relations should be limited within the context of a marriage between a man and a woman. The school district revoked FCA’s status as an official student club at its high schools, claiming that FCA’s religious pledge requirement violates the School District’s non-discrimination policy. Two FCA leaders and FCA filed suit, alleging that the defendants violated their right to equal access to extracurricular school clubs under the Equal Access Act; free speech, expressive association, and free exercise of religion under the First Amendment; and equal protection under the Fourteenth Amendment. The district court denied the plaintiffs’ motion for a preliminary injunction seeking reinstatement of the FCA as an official student club, and the plaintiffs appealed.

Result: The Ninth Circuit reversed. The Court first held that the FCA groups themselves had standing to request prospective injunctive relief because the School District’s actions frustrated FCA National’s mission and Pioneer FCA, the FCA group at Pioneer high school, had standing to represent the interests of its members. The Court next held that district court abused its discretion in applying a heightened standard on the ground that plaintiffs had requested a “mandatory” injunction (i.e., an injunction that orders a responsible party to take action). The question is whether the plaintiff seeks to maintain or alter the status quo that existed before the controversy arose. Because FCA enjoyed official club status before the controversy arose, plaintiffs were seeking to maintain, not alter, the status quo. The Court also held that FCA was likely to prevail on the merits of its selective enforcement claim under the Free Exercise Clause because the School District’s non-discrimination policies have been, and continue to be, selectively enforced against FCA. In particular, plaintiffs presented evidence that defendants selectively enforced their non-discrimination policies against FCA while exempting comparable secular student groups from compliance, such as groups limiting membership to those identifying as female. The Court further held that FCA would suffer irreparable harm absent an injunction because the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Similarly because the plaintiffs were likely to succeed on their Free Exercise claims, the Court concluded that the balance of equities and the public interest favor injunctive relief.

Judge Lee concurred to emphasize the record evidence that anti-religious animus motivated the defendants’ actions.

Judge Christen dissented, and would have concluded that the plaintiffs lacked standing to seek prospective relief because they failed to offer sufficient evidence that any student intends to apply for official student club recognition for FCA in the future. Judge Christen also opined that the majority had improperly accepted plaintiffs’ version of the facts as established historical facts, and disregarded the district court’s contrary factual findings, at this preliminary injunction stage.

The Court holds that a foreign website operator that hosted its site in the U.S., bought services to increase its speed here, geared its legal compliance exclusively to U.S. laws, and attracted more than a million views from U.S. visitors had expressly aimed its conduct at the U.S. for purposes of personal jurisdiction.

The panel: Judges Wardlaw, Gould, and Bennett, with Judge Wardlaw writing the opinion.

Key highlight: “[B]y choosing to host in Utah and to purchase [content delivery network] services for North America, Defendants chose to have the site load faster for viewers in the United States and slower for viewers in other places around the world. Given how important loading speed is to achieving and maintaining an audience, Defendants’ choice is good evidence that they were motivated to appeal to viewers in the United States more than any other geographical location.”

Background: Will Co., a Japanese adult entertainment company, sued operators of, a Hong Kong video-hosting site, alleging that the site was displaying copyrighted works without authorization. Most of the website’s text is in Japanese, but all of the pages focused on legal compliance are in English and discuss U.S. law. The site also has a significant U.S. audience, drawing more than 1.3 million views from U.S. visitors while the allegedly infringing videos were posted.

The district court held that it lacked specific personal jurisdiction over defendants because Will Co. could not establish that they “expressly aimed”’s content at the United States, or that it was foreseeable that operating the site would cause jurisdictionally significant harm in the United States.

Result: The Ninth Circuit reversed and remanded for further proceedings. The exercise of personal jurisdiction over a defendant comports with due process if a defendant has “minimum contacts” with the relevant forum. In a tort suit, “a defendant has the requisite minimum contacts with the forum if: (1) the defendant ‘purposefully direct[s]’ its activities at the forum, (2) the lawsuit ‘arises out of or relates to the defendant’s forum-related activities’, and (3) the exercise of jurisdiction is ‘reasonable.’” “To determine whether a defendant “purposefully directed” its activities at the forum,” the Ninth Circuit asks “whether the defendant: ‘(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.”

While passively operating a website is not enough to constitute expressly aimed conduct, the Ninth Circuit found several factors nonetheless supported a finding that’s operators had expressly aimed their conduct at the United States. To start, “the advertising structure Defendants employed demonstrated that they profited from viewers in the United States market”—“because was viewed by people in the United States more than 1.3 million times during the relevant period, the site earned considerable revenue from that market.” Defendants had also made several key decisions showing “their intent to cultivate an audience in the United States,” the Court reasoned. Defendants hosted their website in Utah and bought content delivery network services, making the site load faster in the U.S. And the website’s legal compliance language was geared almost exclusively to viewers in the United States. The Court found it particularly relevant that “the site specifically states that access is only lawful in the United States, and provides compliance procedures only for the United States, which means it prepared for U.S. visitors to the exclusion of all others.”

The Ninth Circuit also concluded defendants had caused foreseeable harm in the United States. 1.3 million views was a “substantial” number. And the fact that defendants “actively appealed to a U.S. audience, knew that a significant number of people in the United States were actually viewing the website, and were put on notice” by a takedown notice, all supported the conclusion that they knew harm was likely to occur here.