A unanimous panel of the U.S. Court of Appeals for the 11th Circuit has upheld a district court's refusal of preliminary injunctive relief to a counseling student who was expelled from the Counselor Education Program at Augusta (Georgia) State University when she refused to participate in a remediation program on LGBTQ issues as a prerequisite to participating in the Program's clinical practicum involving actual one-on-one counseling with students. The Program faculty had concluded from statements made by the student in class and to other students that she was likely to impose her religiously-motivated anti-gay views on counseling clients, in violation of the profession's ethical standards, and thus required "remediation." Keeton v. Anderson-Wiley, 2011 Westlaw 6275932 (Dec. 16, 2011).
Jennifer Keeton was seeking a master's degree in school counseling. The Counselor Education Program at Augusta State University complies with the ethical standards of the American Counseling Association (ACA), which require non-discrimination based on gender identity or sexual orientation, among other characteristics, and require that professional counselors not impose their individual beliefs on individuals seeking counseling from them. In her written classwork, comments in class, and comments she made to fellow students that were reported to faculty members, and in her brief supporting her motion for a preliminary injunction, Keeton stated that she believes sexual behavior to be a result of "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 had also expressed the view that sexual orientation can be changed, and that if she were counseling a student who was concerned about his/her sexuality, she would recommend conversion therapy to affirm their heterosexuality. Professional psychological and counseling associations have condemned conversion therapy as harmful to clients.
Faculty members became concerned that Keeton was unable or unwilling to conform her professional behavior to the ethical requirements of the profession, which require counselors to avoid imposing their personal beliefs in such matters on clients, and they required her to participate in a remediation program before they would allow her to participate in the practicum. This program would require her to attend workshops providing diversity sensitivity training toward working with the GLBTQ population, to read peer-reviewed articles in counseling or psychological journals pertaining to "improving counseling effectiveness with the GLBTQ population," to increase her exposure and interaction with that population by, for example, attending the local Gay Pride Parade, to familiarize herself with the Assocation for Lesbian, Gay, Bisexual and Transgender Issues in Counseling Competencies for Counseling Gay and Transgender Clients, and to submit a "two-page reflection" to her faculty advisor every month summarizing what she was learning from the remediation process. At first she agreed to undergo this program, but then she changed her mind and filed the lawsuit, seeking an order from the court that she was entitled to participate in the practicum and earn her degree without undergoing the remediation.
Keeton grounded her lawsuit in the First Amendment of the U.S. Constitution, claiming that requiring her to undergo remediation and, in effect, to comply with the ethical standards of the profession, would violate her first amendment rights of freedom of speech and free exercise of religion. When she filed suit, she was seeking relief against required remediation. After she filed suit and was expelled from the Program, she also claimed unconstitutional retaliation and sought an order reinstating her to the Program. The trial court found that she had not met the burden of establishing a likelihood of success on the merits of her claim sufficient to justify preliminary injunctive relief.
Writing for the panel, Circuit Judge Rosemary Barkett provided an extensive analysis of Keeton's First Amendment claims. On the free speech claims, she pointed out that the record before the court did not support Keeton's contention that the school was trying to force her to change her views of homosexuality, was discriminating against her anti-gay viewpoint, or was compelling her to express beliefs with which she disagrees. Instead, Barkett found, the School was trying to get her to comply with its curriculum, which is intended to maintain the school's accreditation by ACA, a prerequisite to its graduates receiving professional licensure and being able to practice as professional counselors in a public school setting.
An individual counselor can believe whatever he or she wants to believe. That's not the point, as the court's decision shows. The issue is what the counselor says to clients in the context of a professional relationship. "We conclude," wrote Judge Barkett, "that the evidence in this record does not support Keeton's claim that ASU's officials imposed the remediation plan because of her views on homosexuality. Rather, as the district court found, 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, and that the objective of the remediation plan was to teach her how to effectively counsel GLBTQ clients in accordance with the ACA Code of Ethics."
While conceding that this places a "burden" on Keeton, the court was unwilling to find that such a burden was unreasonable in the context of a professional training program governed by an ethical code. The court drew an analogy to the Supreme Court's ruling in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), rejecting a First Amendment challenge to censorship of a high school student newspaper by school administrators. The 11th Circuit panel found Hazelwood applicable on two grounds. First, the clinical practicum is a "school-sponsored expressive activity," which means the school gets to control what is said within that activity. Also, as in Hazelwood, where the Court found that the school newspaper was part of the curriculum, here the practicum is part of the Program's curriculum, and enjoining ASU from requiring Keeton to undergo remediation before participating in the practicum would "interfere with ASU's control over its curriculum," something the Supreme Court has cautioned federal courts against doing.
Concluding on this point, Judge Barkett wrote that "we find that ASU has a legitimate pedagogical concern in teaching its students to comply with the ACA Code of Ethics. ASU must adopt and follow the ACA Code of Ethics in order to offer an accredited program, and the entire mission of its counseling program is to produce ethical and effective counselors in accordance with the professional requirements of the ACA." Since Keeton had indicated by her comments that she would impose her personal religious views on clients, a conflict with the ACA Code of Ethics, it was reasonable for the school to seek remediation. "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."
Based on this reasoning, the court also rejected Keeton's retaliation claim, asserting that the school was not acting against her based on her religious views, but rather based on her professed unwillingness to comply with the ACA Code of Ethics. Furthermore, the court found no support for Keeton's claim that ASU was trying to unconstitutionally compel her to express views with which she disagrees. Enrollment in the Program is a voluntary activity. "Keeton may choose not to attend ASU, and indeed may choose a different career." Thus, this was not like the famous Supreme Court flag salute case, Barnett, where public school students were unconstitutionally disciplined for refusing to engage in the salute to the flag and the pledge of allegiance. Those students were governed by mandatory public school attendance laws, making that "compelled speech" precedent, upon which Keeton heavily relied, distinguishable and inapplicable to her situation.
The court pointed out once again that ASU was not mandating that Keeton abandon her beliefs, but merely that she learn to separate her personal beliefs from her work if she wanted to function as a professionally licensed counselor. "Every profession has its own ethical codes and dictates," observed Judge Barkett. "When someone voluntarily chooses to enter a profession, he or she must comply with its rules and ethical requirements." She analogized with a law school, which said would "no doubt… be permitted to require a student who espressed 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."
As to the free exercise of religion claim, the court found that the requirement that students comply with the ACA Code of Ethics was "neutral and generally applicable" and thus could be upheld if the school had a rational basis for requiring it. "It easily satisfies this test," wrote Barkett, "as it is rationally related to ASU's legitimate interest in offering an accredited counseling program. Thus, Keeton is unlikely to prevail on the merits of her claim that ASU violated her free exercise rights by requiring her to comply with the ACA Code of Ethics."
Since likelihood of success on the merits is "the first requirement for a preliminary injunction," the court ruled that the district court "did not abuse its discretion in denying her motion for a preliminary injunction." 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.
Circuit Judge William H. Pryor, Jr., filed a concurring opinion, focusing on the context of the appeal, and emphasizing the restraint that federal courts are supposed to show when it comes to issues of curriculum design by professional educators. Senior Judge Phyllis Kravitch was the third member of the panel. The list of amicus curiae briefs filed in the case indicates its significance in the "culture wars" over the treatment of sexuality issues in public education. Supporting the ASU authorities were PFLAG, the Georgia Safe Schools Coalition, the ACLU, and the American School Counselor Association and related organizations. Amici for the plaintiff included the Foundation for Individual Rights in Education and the National Association of Scholars.