The New Clash of Rights

July 28, 2010

A month ago, the U.S. Supreme Court ruled in a dispute involving the right of public universities to enforce anti-bias rules as a requirement for recognition of student organizations. The university's rules were upheld, dealing a blow to Christian student groups who argued that they should be protected by the First Amendment to receive recognition and to bar gay people.

Now a new issue is emerging that involves a similar set of players and issues: public universities, anti-bias rules, and the rights of gay people and Christian students. On Tuesday, a federal judge upheld the right of a counseling program at Eastern Michigan University to kick out a master's student who declined to counsel gay clients in an affirming way -- as required by the university program and counseling associations. The judge found that the university was enforcing a legitimate curricular requirement -- namely that counseling students learn to work with all kinds of clients in ways that did not judge their values or orientations.

In his ruling, Judge George Steeh rejected a lawsuit that charged that the university's actions amounted to an unconstitutional infringement on the religious freedom and free speech rights of Julea Ward, who was removed from the program. The decision -- while a win for the university -- is unlikely to settle the matter.

Ward is backed by the Alliance Defense Fund, a legal organization that works on behalf of religious students and faculty members and that is almost certain to appeal. And the fund just last week sued Augusta State University on behalf of a student in a situation similar to Ward's, setting up the potential for suits in multiple federal circuits, the sort of conflict that could reach the U.S. Supreme Court.

Both sides in the case see important principles at stake.

David French, a senior counsel to the Alliance Defense Fund, said that in the Supreme Court case and the Eastern Michigan ruling, "a disturbing trend" is emerging of "what I would call excessive deference to university administrators" to define limits around "the market place of ideas." French said that, in contrast to the view that academe should feature "a freewheeling exchange of ideas," these rulings "permit restrictions" on religious students and groups. And he said that the Eastern Michigan ruling may create a new way for public universities to enforce speech codes -- simply by making them into curricular requirements.

But Irene Ametrano, a professor of counseling at Eastern Michigan, said that she was pleased the judge had seen that the issue was not about the right of religious students to hold whatever beliefs they have, but over the right of a professional degree program to enforce requirements that are rooted in a sense of the field's needs and a commitment to equity.

"This isn't about the thought police," she said. "This is about behaviors that are appropriate or not appropriate within counseling." She noted that the university's policies were consistent with the ethics code of the American Counseling Association and said that Eastern Michigan's counseling program couldn't keep its accreditation while ignoring the code.

The Conflict at Eastern Michigan

Ward, the plaintiff in the case, was admitted to the master's program in 2006, with the goal of becoming a high school counselor. Like many counseling graduate programs, the one at Eastern Michigan is a mix of coursework and practical experience, in which students engage in actual counseling.

Ward describes herself as an "orthodox Christian," the judge's ruling said, and was upfront in her courses -- both in discussions and papers -- about her view that homosexuality is "morally wrong." She also wrote in papers that it is "standard practice" for counselors to refer clients whose values they disagree with to other counselors (even though that's not standard practice or consistent with American Counseling Association ethics rules, which specifically require counselors to work in non-judgmental ways with clients whose values differ from their own). While Ward's suit alleged that she faced "disagreeable" reactions to her views from professors, she also earned excellent grades.

The dispute that led to the litigation started in 2009, when Ward was enrolled in the practicum in which she was to engage in actual counseling. Faced with an appointment with a client whose file indicated past discussion of a gay relationship, Ward asked to refer the candidate to another counselor rather than engage in any counseling that could "affirm the client's homosexual behavior." Since this was two hours before the appointment, the supervising counselor canceled the appointment, but set off disciplinary hearings that eventually led to Ward being kicked out of the program.

Eastern Michigan's counseling program -- like many others -- requires its students to practice in ways that are consistent with the counseling association's ethics code, including requirements that bar behavior that reflects an "inability to tolerate different points of view," "imposing values" on clients or discrimination based on a number of factors, including sexual orientation. The counseling association does permit referrals, but they are supposed to be for the good of the client, not for the comfort of the counselor. Typically, a referral that would be seen as legitimate might involve a counselor referring someone to a colleague with expertise on a particular problem.

Ametrano, the Eastern Michigan professor, who was on the review panel that expelled Ward, said that the requirements that counselors work with clients of a range of views and background are essential. She noted that counselors regularly work with clients who make decisions about such matters as birth control, sex, drug use, abortion and many other choices that a counselor may or may not support. And clients come from a variety of backgrounds and sexual orientations. A counselor can't be effective, she said, with litmus tests on who may be helped.

Further, she said that the ethics code is designed in part because Eastern Michigan is training counselors who will work in schools, colleges and social service agencies where referrals aren't possible. So the ability to help anyone, and to do so in a way that "is consistent with client values," is an important, relevant skill as determined by the profession.

"Are you going to refer away half of your clients because you can't reconcile your own issues with the client's value system? We want students to reconcile their biases" and their work, she said. "Being nonjudgmental is a central part of how we work."

She added that Eastern Michigan has had many religious students over the years, with a range of personal views on social issues, who have had no difficulty counseling a range of clients, gay and straight.

Ward's suit charged that the university's rules and the way it enforced them effectively intruded on her religious freedom, making it impossible for her to hold her beliefs while meeting the program requirements. Further, she charged that by adding the counseling association's rules (including its discrimination ban) to program requirements, the counseling program was instituting an illegal speech code.

The Judge's Take on the Issues

Judge Steeh rejected those arguments, finding that the requirements were curricular in nature and thus that the university deserved the right to set its own standards.

He noted a number of differences between the kinds of speech codes that courts have barred and the rules at Eastern Michigan. For instance, he noted that the rules applied only to students in a specific professional program, and that the issues of discrimination were not raised with regard to Ward's views as expressed in class, and that she was free to express those views anywhere. He said that the counseling association's code of ethics, as applied at Eastern Michigan, was "not a prohibition on a counselor making statements about their values and beliefs in a setting other than with a client," and was in fact "quite narrowly drawn" with the purpose of protecting clients served by counselors.

Then Steeh turned to whether the ethics code was widely known as a requirement at the university (he said the evidence showed it was), and to curricular autonomy.

"Courts have traditionally given public colleges and graduate schools wide latitude to create curricula that fit schools' understandings of their educational missions," he noted. Judge Steeh added: "Counseling, by its very nature, relies on a uniquely personal and intimate relationship between the counselor and client to assist in delivering the objectives sought by the client. Educating counselors to provide such services is clearly within the expertise of the universities that provide such programs.... [Ward] knew the university’s curricular goal of teaching students to counsel without imposing their personal values on their clients by setting up boundaries so as not to be judgmental."

In backing Eastern Michigan, Judge Steeh said he wasn't endorsing the counseling association's ethics code, but respecting its right to set a code and the right of universities to follow it. "The ACA Code of Ethics is the industry standard in the field of counseling. EMU did not write the nondiscrimination policy that it adopted into its counseling student handbook. Rather, the university is using the ACA Code of Ethics to govern its counseling students in exactly the same way they will be governed when they are practicing counselors," he wrote. "The court gives universities broad latitude when it comes to matters of pedagogy. In addition, the court should avoid entering into the role of regulating counseling industry standards."

The judge then rejected the idea that the university was engaged in punishing Ward for her views. He noted that she had earned As in courses in which she expressed her views on gay people, and that the university had offered to work with her on learning to counsel people whose sexual orientation she viewed as problematic. Enforcing the code of ethics is a legitimate requirement, he wrote.

"The university had a rational basis for adopting the ACA Code of Ethics into its counseling program, not the least of which was the desire to offer an accredited program. Furthermore, the university had a rational basis for requiring its students to counsel clients without imposing their personal values. In the case of Ms. Ward, the university determined that she would never change her behavior and would consistently refuse to counsel clients on matters with which she was personally opposed due to her religious beliefs -- including homosexual relationships," the judge wrote. "The university offered Ms. Ward the opportunity for a remediation plan, which she rejected. Her refusal to attempt learning to counsel all clients within their own value systems is a failure to complete an academic requirement of the program."

The Dissenting View

French, the lawyer for the Alliance Defense Fund, said he thought the judge ignored the way Ward was judged by the faculty. "Her belief system was very much at issue," he said, and decisions about her future reflected those statements she made in class as well as her statements about a willingness to counsel gay clients. The only way she could have accepted the idea of learning to work with gay clients, he said, was giving in "to a mandate that she change her belief system."

He also said that the counseling association's rules are a speech code. "It's almost as if the court has created an exception to speech code jurisprudence" that permits them if "you phrase a speech code as a curricular requirement," he said.

Further, French noted that Ward was never accused of mistreating any gay clients, only of recognizing a conflict in values and suggesting that they receive help elsewhere. Asked if he would consider it acceptable for a counseling student to refuse to work with Christian clients, French said "I would be OK with that, if a counselor knows someone who appreciates my value system," adding that "this idea that referral is a negative thing is in the real world almost comical."

Some faculty members have expressed fear that creating an exception for Ward could lead students to demand all kinds of exemptions from rules, and French noted that some have predicted that, if Ward prevailed, someone who believes that "the earth is flat" or a "young Earth" creationist could demand to pass a science course where faculty members reject such views.

But French said that was not the case. "There is a distinction between knowing the material and what you believe in your heart and mind," he said, and such students could be expected to learn and be graded on the material as presented in class.

What about a case, this reporter asked, of a Christian Scientist who might enroll in medical school, do well in anatomy courses, and then -- citing faith -- refuse to recommend to patients that they consider medications or surgery. Would a medical school be justified in refusing to graduate such a student?

While saying he saw "distinctions" between that hypothetical and Ward's case, he said that a medical school might in fact be justified. "I would be OK with a medical school saying that, in the course of a valid clinical program when they did not provide a valid standard of care," he said. "But that's a different situation."

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