BY ARTHUR S. LEONARD | A federal appeals court has upheld a lower court’s refusal to grant a preliminary injunction relieving a school counseling master’s degree candidate at a Georgia public university from having to participate in a “remediation” program on LGBTQ issues prior to enrolling in a clinical practicum in which she would carry out one-on-one counseling with actual public school youth.
In a case that is another culture wars milestone, a unanimous panel of the 11th Circuit Court of Appeals, on December 16, ruled against Jennifer Keeton, who was expelled after refusing to comply with a mandate Augusta State University placed on her after faculty concluded she was likely to impose her religiously-motivated anti-gay views on counseling clients, in violation of the profession’s ethical standards.
Augusta State’s Counselor Education Program relies on standards established by the American Counseling Association (ACA), which require non-discrimination based on gender identity and sexual orientation, among other categories, and bar professional counselors from imposing their individual beliefs on those seeking their services.
In statements at the school, Keeton said she believes sexual orientation is a “personal choice for which individuals are accountable, not inevitable deterministic forces; that gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change; and that homosexuality is a ‘lifestyle,’ not a ‘state of being.’” She stated sexual orientation can be changed, and that if she were counseling a student concerned about their sexuality, she would recommend conversion therapy.
Professional psychological and counseling associations have condemned such therapy as harmful to clients.
Concerned about her willingness and ability to abide by professional standards, the faculty required her to attend workshops providing diversity sensitivity training toward the LGBTQ population, to read peer-reviewed articles in professional journals about “improving counseling effectiveness with the LGBTQ population,” to increase her exposure and interaction with that population by, for example, attending the local Gay Pride Parade, to familiarize herself with an LGBT counseling competency association, and to submit a “two-page reflection” to her faculty advisor every month summarizing what she was learning from the remediation program.
After initially agreeing to the program, Keeton changed her mind and filed the lawsuit, seeking a court order that she be allowed to continue her studies, including the one-on-one counseling, and earn her degree without undergoing the remediation.
Keeton argued that the faculty’s requirement would violate her First Amendment rights of free speech and free exercise of religion. When she was subsequently expelled, she also claimed unconstitutional retaliation.
The trial court found she had not met the burden of showing she was likely to succeed on the merits. Therefore, it concluded, she did not deserve an injunction against the school’s actions.
Writing for the appeals panel, Circuit Judge Rosemary Barkett wrote that that the record did not support the claim the school was discriminating against her anti-gay views or trying to force her to change her views of homosexuality or to express beliefs with which she disagrees. Instead, she found, the school was insisting she comply with its curriculum, designed to maintain its ACA accreditation.
The issue is not what a counselor believes, the court stated, it was what they say to a student being counseled.
“The evidence shows that the remediation plan was imposed because she expressed an intent to impose her personal religious views on her clients, in violation of the ACA Code of Ethics,” Barkett wrote.
While conceding that this places a “burden” on Keeton, the court was unwilling to conclude such a burden was unreasonable in the context of a professional training program.
Barkett drew an analogy to a 1988 Supreme Court ruling that rejected a First Amendment challenge to administrators’ censorship of a high school student newspaper, finding that both cases involved a “school-sponsored expressive activity” within the curriculum, which means the school gets to control what is said within that activity.
“Keeton does not have a constitutional right to disregard the limits ASU has established for its clinical practicum and set her own standards for counseling clients in the clinical practicum,” Barkett wrote.
A law school, she argued, would “no doubt… be permitted to require a student who expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state’s bar rules to take extra ethics classes before letting the student participate in a school-run clinic in which the student would be representing actual clients.”
Keeton’s right to free exercise of her religion was not infringed, the courts concluded, since the requirement that students comply with the ACA Code of Ethics was “neutral and generally applicable” and “is rationally related to ASU’s legitimate interest in offering an accredited counseling program.”
While this is not an ultimate ruling on the merits, the decision sends a strong message to the district judge that is unlikely to be misinterpreted.
The list of amicus curiae briefs filed in the case indicates its significance in the culture wars being waged over public education’s handling of sexuality. Among those supporting the ASU faculty were PFLAG, the Georgia Safe Schools Coalition, and the American Civil Liberties Union. The Foundation for Individual Rights in Education and the National Association of Scholars filed briefs in support of Keeton.