More Wreckage from Ginsburg’s ‘Neutral’ Ruling

When the Supreme Court ruled in June that public universities could deny official recognition to a Christian student group that barred openly gay people as members because homosexual acts are considered sinful by many Christian churches, some commentators hoped that the 5-4 ruling would be construed as a narrow one that permitted but did not require campuses to enforce their anti-bias policies in ways that interfered with religious belief. (Writing for the high court majority, Justice Ruth Bader Ginsburg said that the state-supported Hastings College of Law’s policy of requiring student groups to take all comers in order to qualify for official status was a neutral one that did not interfere with religious freedom.)
Think again, optimistic commentators. Already this summer two federal lower-court judges have used the high court’s decision in Christian Legal Society of the University of California vs. Martinez to uphold the right of two different tax-supported universities to expel Christian graduate students from counseling programs because those students could not in good conscience agree with the fashionable prevailing ideology—endorsed by the American Counseling Association—that homosexual activity is morally neutral and that gay people should be counseled in “affirming” ways that essentially endorse their lifestyles.
It turns out that the word “permit” is the operative one. University and college administrators have interpreted the Martinez decision as giving them carte blanche to restrict religious expression on campus as long as administrators could characterize the restrictions as “reasonably related to legitimate pedagogical concerns,” in the words of Ginsburg. After the Martinez decision came down, David French, a senior counsel for the Alliance Defense Fund, which represents both graduate students, said that the Supreme Court’s June ruling set in motion “a disturbing trend” of “excessive deference to university administrators” that would allow them to enforce politically correct speech codes simply by making them into curricular requirements that they could argue were neutral on their face.

That is exactly what happened in the facts behind the more egregious of the two lower court rulings, on Aug. 22, in which U.S. District Judge judge J. Randal Hall declared that Augusta State University in George was entitled to expel Jennifer Keeton, age 24, from a master’s program in school counseling in which she had enrolled in the fall of 2009, not because she had failed any courses or refused to comply with any academic assignments. Instead Keeton, who recently sued the university, was penalized simply for speaking her mind, in classroom discussions, in written assignments, and in private conversations with her fellow students—all activities that one might assume were protected by the First Amendment’s free-speech guarantees, not to mention fundamental principles of academic freedom. Voicing controversial opinions in class without fear of reprisal is supposed to be what open campus inquiry is all about.
Furthermore, the views that Keeton expressed about homosexuality and the gay lifestyle bespoke no personal animosity toward gays or lesbians or intolerance of their rights as citizens. Her views in fact reflected the attitudes that many ordinary Americans, Christians and non-Christians alike, have about gender and sexual relations. Here is how Hall summarized them in his ruling: “Plaintiff has stated that she opposes homosexuality, based upon the Bible’s teachings. Moreover, Plaintiff has stated that she believes that sexual behavior is based upon accountable personal choice rather than an inevitability deriving from deterministic forces….Plaintiff has also affirmed binary male-female gender, with one or the other being fixed in each person at the time of creation, and not a social construct or individual choice subject to alteration by the person so created….Finally, Plaintiff has expressed the view that homosexuality is a ‘lifestyle,’ not a ‘state of being.’ Keeton confided to a fellow student (who promptly reported her to the powers that be) that she would counsel gay young people who consulted her to enroll in “conversion” therapy designed to change their sexual orientations. She also tried to persuade some of her classmates to come around to her views.
As a penalty for such transgressions—affirming the biological reality of sexual dimorphism, upholding the principle of free will, standing up for her religious beliefs, and engaging in open debate with her peers—the Augusta State faculty crafted what it called a “Remediation Plan” for Keeton. Its requirements included attending at least three “diversity sensitivity training” workshops, reading at least ten articles in peer-reviewed psychology journals pertaining to “improving counseling effectiveness with GLBTQ populations,” and working to “increase exposure and interaction with gay populations”—such as (yes, these are the very words of the Plan) “attending the Gay Pride Parade in Augusta.” Keeton refused to participate in these aspects of the plan and instead sued the university, alleging a variety of violations of her First Amendment rights to speak freely and freely express her religious beliefs.
In all fairness, conversion therapy for homosexuals is a controversial practice whose effectiveness has been questioned by many psychologists. It might well have been appropriate for Keeton’s professors to require her to expose herself to a range of scholarly views on the subject and to a range of alternative strategies for counseling gay young people. And if the Gay Pride Parade in Augusta is like gay pride parades in other cities, with a full contingent of leather fetishists, bare-bottomed men in cowboy boots, and enthusiasts of whips and chains, Keeton might have come away with an even more negative attitude toward gay lifestyles than she already held.
But the Remediation Plan was not designed to ensure that Keeton was appropriately exposed to a full panoply of up-to-date professional views about counseling gays (a goal that could have been accomplished by requiring her to take a class or giving her a reading list). It was designed to force her own views into line. For example, she was required to submit a monthly two-page “reflection paper” summarizing, among other things, “how her study has influenced her beliefs.” Even after jumping through those hoops, Keeton was not assured of being allowed to remain in the counseling program. Her professors would have the final word on that, only after reading the “reflection papers” and holding two personal meetings with her. The implication was clear: Woe betide you if you write or say something that is not duly apologetic. This was not remediation; it was re-education.
Amazingly, Judge Hall deemed the Remediation Plan—with its Hanoi Hilton-style “reflection papers” and its not one but two cross-examination sessions with the faculty designed to ferret out from Keeton any lingering attachment to conversion therapy that she might harbor in her heart—to be just another religiously neutral mandate “reasonably related to legitimate pedagogical concerns.” How so? The Augusta State counseling faculty had imposed remediation plans on other students deemed to have academic problems. Hall quoted Ginsburg’s majority opinion in the Martinez case: “[W]e have cautioned courts in various contexts to ‘resist substituting their own notions of sound educational policy for those of the school administrators which they review.'” Hall said that Keeton was not being required to change her beliefs about the morality of homosexual conduct but, rather, to amend “her inability to resist imposing her moral viewpoint on counselees”—even though Keeton, as a beginning student, had never been asked to counsel any young person, gay or straight. Hall refused to grant Keeton the preliminary injunction she sought that would have barred enforcement of the Remediation Plan, so, although she is free to continue her lawsuit, she is now effectively expelled from Augusta State.
Hall’s ruling in Keeton’s lawsuit followed a July ruling by a Michigan federal judge that the public Eastern Michigan University was entitled to expel another Christian graduate student in counseling, Julea Ward, who refused to counsel gay clients in the required “affirming” way. Keeton was effectively expelled on an even more ephemeral charge: making statements, some of them in private conversations outside of class, about her moral qualms about value-free counseling of gays. David French’s prediction that university administrators would enforce speech codes by disguising them as supposedly neutral curricular requirements—and invoke the Supreme Court’s Martinez ruling to justify the practice legally—has, alas, come true. The Martinez decision has given high court approval for administrators to violate students’ religious freedom egregiously, and perhaps even worse, to punish students for speaking their minds freely on controversial subjects.


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