Federal Trial Court Dismisses Counseling Student’s Constitutional Claims

U.S. District Judge J. Randal Hall (S.D. Ga.) released an Order in Keeton v. Anderson-Wiley, CV 110-099, on June 22, granting the defendants' motion to dismiss a claim by a student that her constitutional rights were violated when she was  dropped from the graduate Counseling Program at Augusta State University.  The court ruled that Jennifer Keeton, a self-described Christian who refused to undergo a Remediation Program aimed at equipping her to provide non-discriminatory professional counseling services consistent with the ethical requirements of the profession, did not suffer a violation of her First and Fourteenth Amendment rights.  Keeton objected to a program that would require her to immerse herself in materials about counseling of LGBT clients, after she had made statements signaling her strong moral disapproval of homosexuality.

Keeton's professors were concerned  – by statements she made in class, in written work, and in out-of-class comments to other students – that Keeton's strongly expressed anti-gay views could get in the way of her ability to provide appropriate counseling to students.  The graduate Counseling Program, intended to prepare individuals to be professional school counselors in the public schools, incorporates the ethical codes of the American Counseling Association and the American School Counseling Association.  Both Associations' ethical codes provide that counselors should not seek to impose their own moral views on their clients, and include sexual orientation and gender identity as forbidden grounds for discrimination in rendering professional services.

Wrote Judge Hall, summarizing the factual allegations of Keeton's complaint: "Keeton ascribes absolute truth to the proposition that homosexuality is an immoral lifestyle choice rather than an immutable state of being, and she endorses a universal moral prescription against homosexual behavior.  According to Keeton, her opinions regarding homosexuality derive from her Christian faith.  She occasionally communicated these opinions both in class discussions and written assignments, as well as to persons outside of the classroom.  And while she communicated to faculty that she believes in the dignity of all persons, she also stated that she would not condone the propriety of homosexual relations or a homosexual identity in a counseling situation."

At the end of her first year in the program, Keeton met with some faculty members, who presented her with a remediation program "to address concerns about her ability to become an effective counseling practitioner" in compliance with the profession's ethical codes.  The remediation program required her to attend workshops and various events, read various publications, and write reflective papers, all with the goal of equipping her to be able to provide appropriate counseling to LGBT students.  Over a series of meetings, Keeton went back and forth as to whether she would accept and undertake the remediation program, but ultimately she concluded that she could not do it. 

Keeton stated that regardless of any disclaimers by the professors, they were demanding that she "alter" her beliefs, but her position was that her "beliefs are about absolute truth." 

"I understand the need to reflect clients' goals and to allow them to work toward their own solutions, and I know I can do that," she insisted in her final written communication to the professors.  "I know there is often a difference between personal beliefs and how a counseling situation should be handled.  But in order to finish the counseling program you are requiring me to alter my objective beliefs and also to commit now that if I ever may have a client who wants me to affirm their decision to have an abortion or engage in gay, lesbian, or transgender behavior, I will do that.  I can't alter my biblical beliefs, and I will not affirm the morality of those behaviors in a counseling situation.  I don't want any more meetings.  My final answer is that I am not going to agree to a remediation plan that I already know I won't be able to successfully complete."

As a result of her refusal to undertake the remediation plan, Keeton was dismissed from the graduate program.  Successful completion of an accredited graduate counseling program is an essential credential for somebody who seeks employment as a professional counselor in a public institution.  Were Keeton to enroll in another school's accredited graduate counseling program, she would face the same issues.  However, there are religious counseling programs available to people who are seeking to be counselors in a milieu compatible with their religious beliefs, but they would not provide the credentials for public institutional employment.

Keeton's lawsuit claims that the school's requirement of the remediation program, and its dismissal of her for refusing to undertake it, violates her First Amendment rights of freedom of speech and religion, and her Fourteenth Amendment rights of due process and equal protection.  She claimed that the school was censoring her speech, compelling her to change her religious views, saddling her with compliance with a vague ethical code, discriminating against her for her Christian beliefs, and retaliating against her for her religious beliefs and their public expression, among various charges.  When she first filed suit in the summer of 2010, she sought a preliminary injunction against her dismissal from the program, which Judge Hall denied.  The 11th Circuit Court of Appeals upheld Hall's denial of the injunction in 2011, see 664 F.3d 865, and the case proceeded to consideration of the defendants' motion to dismiss Keeton's complaint.

The defendants raised immunity issues first, arguing that they are public officials carrying out a discretionary function of administering the graduate counseling program at a state university, for which they can't be held liable in the absence of a showing by Keeton that their conduct violated a clearly established constitutional right.  Judge Hall found it unnecessary to resolve the immunity issue on behalf of the individual defendants, however, because he found that the faculty's insistence on the remediation program did not violate Keeton's constitutional rights.

The significant analytical move in this case is to distinguish between personal opinion and belief and its expression as a private individual, and the role of a professional rendering professional services under the auspices of a public program.  A person employed by a public school as a counselor for students is not supposed to be engaging in personal political or religious expression when they speak to a student in a counseling situation.  In that setting, a private setting, they are speaking as a professional rendering services, and the ethical codes of the profession state that they are supposed to render such services in a non-judgmental way, not imposing their personal moral views on their clients.  As the 11th Circuit observed in affirming Judge Hall's denial of preliminary injunctive relief, a graduate counseling program incorporates the ethical standards of the profession, as required by accreditation standards.  The remediation program that was presented to Keeton was intended to teach her how to provide appropriate professional services consonant with those ethical standards, an appropriate move when her speech and conduct signalled the likelihood that she would not be able to do so in the absence of successful remediation.

Judge Hall issued a lengthy opinion analyzing all of Keeton's constitutional claims in depth.  His conclusion incorporates the analysis in a concise summary.  "One conspicuous and abiding theme of the American story is that individuals like Jennifer Keeton are free to choose their own spiritual path, and need brook no government trespass thereon," he wrote.  "The Constitution guarantees that the heart may pulse to meters of its own design, deaf to public cadence.  But when affairs of the conscience ripen into action – either speech or conduct – government is granted leave to regulate in behalf of certain public interests, including education and professional fitness.  Boundaries drawn through decades of case law establish the whither and when of such regulation, and, after carefully considering the factual content of Keeton's allegations, the Court concludes that Defendants acted within those bounds – there is no room to reasonably infer otherwise."

"The policies incorporated in the Counselor Program," he continued, "set the standards of conduct which govern the profession that Keeton chose to enter; Keeton was fairly apprised of what those policies demanded and she failed to show that they had an undue chilling effect on student speech.  The remediation plan imposed on Keeton pursuant to those policies placed limits on her speech and burdened her religious beliefs, but, as the allegations show, the plan was motivated by a legitimate pedagogical interest in cultivating a professional demeanor and concern that she might prove unreceptive to certain issues and openly judge her clients.  Furthermore, these concerns and the policies from which they were derived are applicable to all students in the Counselor Program.  The allegations show, in sum, that while Keeton was motivated by her particular religious beliefs, Defendants are not."

Keeton is represented by the Alliance Defense Fund, which probably guarantees that she will have an appeal on the merits up before the 11th Circuit because this is not just an individual case but part of a larger movement to challenge the content of professional counseling programs.  Thus, Judge Hall's order that all of Keeton's claims be dismissed and that the Clerk of the court "CLOSE the case" is not likely the end of the matter. 

Indeed, this ruling is likely to throw more fuel on a fire already burning on this issue, as legislators in Michigan, reacting to a similar case that arose in the midwest, have proposed (and approved in one house) a measure that would "protect" the "religious liberty" of counseling students by exempting religious dissidents from the prevailing professional requirements on matters of their own individual conscience.  The stakes are high, as numerous cases involving LGB teens seeking aid and assistance from school counselors show that such non-judgmental counseling is not always available, sometimes with tragic results.

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