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Getting Around the Courts

May 4, 2011

After an intense lobbying campaign, Governor Jan Brewer of Arizona last month pleased higher education leaders when she vetoed a bill that would have allowed guns on public college and university campuses.

But last week, Governor Brewer signed another bill that has upset many in higher education (while pleasing religious groups). The legislation will largely reverse the impact in the state of a 2010 ruling by the U.S. Supreme Court that allowed public colleges the right in some cases to deny recognition to student organizations that violate the colleges' anti-bias rules. The ruling followed disputes at many public universities, including Arizona State University, over whether public colleges and universities could deny recognition to religious organizations that do not permit gay people to be members or leaders of their groups.

While the Supreme Court ruled that public colleges may have such rules, the ruling did not require public colleges to have such rules. And the new law states flatly that in Arizona, they are barred from such regulations.

Another provision of the new Arizona law touches on a dispute over whether graduate programs in fields such as counseling psychology or social work can require students to counsel gay people in ways that are consistent with their values (but may be inconsistent with the graduate students' religious beliefs). This issue is just starting to hit the federal courts (with rulings so far backing the universities' requirements -- although those rulings are being appealed). But in Arizona, those types of graduate programs at public universities will be barred from enforcing such rules.

While there have been legislative rumblings about bills that might deal with either the issue of the student organizations or that of the graduate students, Arizona is the first state to act. But others will be urged to follow.

"If courts are going to go the wrong way on these issues, it's critical to start to enshrine these kinds of protections" for religious students, said Jeremy Tedesco, a lawyer for the Alliance Defense Fund, which has backed religious students in many of these disputes.

Tedesco said that the Arizona law is needed because the various court rulings have threatened the religious freedom and rights to free expression of religious students at public universities. In the case of the student organizations, he said that if they are forced to admit members who disagree with their principles, the groups will cease to be the entities they were created to be. In the case of the counseling students, the Alliance Defense Fund has argued that students who feel that their religious ideals prevent them from being supportive of gay sexuality should be able to refer such clients to other counselors.

To date, there have been no public conflicts in Arizona between individual students and their universities over counseling gay clients.

The Supreme Court case on student organizations involved the Hastings College of Law of the University of California. The Supreme Court accepted the law school's argument that it should have the right to set educational policies requiring every student organization to be completely open to every student. Arizona State was sued for a similar policy in 2004, but settled the case by agreeing to change its rules on recognizing student groups. Last year's Supreme Court ruling gave Arizona State the option of restoring its old anti-bias rules, something that, because of the new law, it will now be unable to do.

The argument over the training of counselors and social workers also involves the competing rights of religious students who hold their views and educators to state the requirements of their fields. Counseling programs have noted that their professional code of ethics requires professionals to accept as clients those with differing world views from themselves, and to provide counseling within their clients' value systems. They have argued that the principle is an important one for everyone -- and that just as a gay client is entitled not to be judged by a religious counselor who believes gay sex is immoral, so is a religious client entitled not to be looked down on by a secular counselor.

The American Counseling Association wrote to Governor Brewer, urging her to veto the bill. "Multicultural competency -- the ability to work with a client based on his or her particular beliefs, values, and spirituality -- is a core skill required of all counselors," said the letter. It went on to say that Arizona graduate programs in counseling could face accreditation problems if religious students are told they don't need to counsel those with whom they disagree on values.

While public colleges and universities were vocal in opposing the guns-on-campus bill, they were relatively quiet on this legislation. The Arizona Board of Regents did not make a recommendation to the governor on whether to sign or veto the bill.

A spokesman for Arizona State said that its general counsel had raised questions about the legislation, finding that it "would infringe the institution's academic freedom in determining what is taught" and that it was not necessary as there are other ways to protect the rights of religious students. Arizona State officials "consulted with our academic units (psychology, counseling psychology, and social work) concerning this legislation and none of them felt this bill was appropriate, but all thought if they had to, they would live with it," the spokesman said.

Sam Castañeda Holdren, the lobbyist for Equality Arizona, a gay rights group, said that he hoped the state's universities would look for ways to fight the law. "This law is trying to undermine the efforts of universities to assure that they have a safe and welcoming environment for all students, including gay and lesbian students," he said. "And this is about trying to force universities to validate behaviors of students that go against the codes of ethics" of professions, he added.

Freedom of association should mean that students can go to other academic programs if they can't meet the requirements of those at the public universities, he said. And freedom of association should mean that students should be able to form any group, and meet and promote whatever ideas they wish, he said.

"But that's not what this will do," he said. "This law will force public universities to give recognition and dollars to organizations that discriminate."

 

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