A Hard Case—Are FIRE and NAS Wrong about Jennifer Keeton?

KEETONX390.jpgHard cases make bad law. Nowhere is that legal maxim clearer than the case of former Augusta State counseling student Jennifer Keeton, who was removed from the counseling program because of her rather extreme anti-gay views. A lower-court judge upheld the university’s actions. FIRE and NAS have filed a powerful amicus brief, penned by Eugene Volokh, spelling out the potentially damaging—extremely damaging—effects if this decision is upheld. At the same time, however, the evidence presented in the case strongly suggests that Keeton doesn’t belong as a counselor.
The university’s response to Keeton reflects the same sort of behavior seen in many education departments in the dispositions controversy—i.e., Orwellian re-education efforts to punish students whose views on controversial contemporary political or social issues conflict with those of the academic majority.
Keeton, a student in ASU’s Counseling Education M.A. program, repeatedly expressed anti-gay views, both in and out of class. (These views were quite extreme; they included Keeton’s support for “conversion therapy,” and, according to the lower-court decision in the case, her admission that she would find it difficult to counsel gay or lesbian clients.) In response, as the FIRE/NAS brief notes, the Counseling department designed a “remediation” program for Keeton, which required her “attending three workshops, reading ten peer-reviewed articles, attending an unspecified number of activities such as the Gay Pride Parade(!), and writing a two-page paper each month.” Perhaps most chilling, she also had to meet with her advisor each month to discuss the effect of these activities on her “beliefs.”

This approach, the FIRE brief contends, would be comparable to a counseling program punishing a strongly pro-Palestinian student, on grounds that she would be unable to effectively counsel Israeli immigrants; or an atheist student, on grounds that he would be unable to effectively counsel religious students.
In a 28-page decision, Judge J. Randall Hall nonetheless upheld ASU’s actions, on the grounds that the Counseling department didn’t punish Keeton for her beliefs, but merely upheld a reasonable curricular mandate that all counseling students express a willingness to follow the American Counseling Association guidelines. FIRE and the NAS were hardly convinced: “Besides violating Keeton’s own First Amendment rights, the university’s retaliation also sent a powerful message to other students: If you express views like Keeton’s, prepare to suffer the same consequences—prepare to incur many hours of extra obligations, and to put yourself at risk of expulsion.”
At first glance, the Keeton case seems comparable to that of Julea Ward, a former Eastern Michigan counseling student. Ward was a conservative Christian whose religious views were incompatible with homosexuality; like Keeton, she was drummed out of her program; and, like Keeton, a lower-court judge upheld the university’s action.
But a critical difference distinguished Ward from Keeton. Ward put her prospective clients first: she recognized that her beliefs made her an unsuitable prospective counselor for gays and lesbians, and that she would refer any such clients to other counselors. (In an incredibly strained interpretation, EMU said that still wasn’t enough.) Keeton, on the other hand, stated that she would put her religious beliefs ahead of her clients’ well-being. She told one student that in any counseling session with a gay or lesbian client, she would tell her client that “their behavior is morally wrong, and then help the client ‘change’ that behavior.” If the prospective client didn’t go along, Keeton said she would recommend “conversion” therapy.
Keeton, in short, suggested that she wished to impose her beliefs upon the people she would counsel. To slightly refashion the hypothetical offered in the FIRE/NAS brief: if an outspoken atheist student affirmed that he would use counseling sessions with any and all religious clients to try and get them to renounce God and recognize the evil of all religion, the atheist would have no business acting as a counselor. (Volokh notes that a technicality might save Keeton on this point: though her in-class comments were consistent with the remarks noted above, the statements themselves weren’t cited in ASU’s “remediation” plan for Keeton.)
The FIRE/NAS brief also contains a ringing defense of student speech: “Universities may not throttle all other students beforehand, by imposing special burdens on all expression—expression in class, in casual conversation, and elsewhere—of viewpoints that (in the administration’s view) are supposedly predictors of future misbehavior.” Only, the brief maintains, if a student tried to apply these beliefs in practicum counseling sessions with clients, could the department act.
I agree completely as this standard applies to any undergraduate course. But Keeton was enrolled in a Counseling M.A. program. What if (to take a ridiculously extreme example) a student repeatedly said in class that would that counsel depressed people to commit suicide? Surely such a student should be bounced from the program. Or—to stay within the realm of ideas—what if a student repeatedly said that blacks are less intelligent than everyone else, so he would counsel black patients solely with anti-psychotic drugs? Again, surely such a student should be bounced from the program.
Faculty in what are essentially vocational training M.A. programs must have some standard to screen out obviously undesirable candidates. When they abuse those standards—as in the “dispositions” case, which designed criteria to exclude from the teaching profession people who opposed affirmative action or who questioned showing Fahrenheit 9/11 in a pre-Election Day 2004 class—they need to be checked.
Since Judge Hall didn’t limit his decision to vocational M.A. programs, the FIRE/NAS brief correctly points out the harm to academic freedom if the ruling is upheld. “If courts,” the brief argues, “build a doctrine under which university-disfavored speech could be subjected to burdensome ‘remediation plans,’ many university administrators will come to embrace it, and use it as a basis for a new generation of speech codes.” Indeed, “unless the district court’s decision is reversed, it threatens to become a road map for other public universities that want to restrict a wide range of speech (not at all limited to anti-homosexuality speech) by a wide range of students (not at all limited to counseling students).”
So what we have is a hard case making bad law. On the one hand, if Hall’s decision is overturned, a student who has made clear her desire to impose her personal religious beliefs on her clients, even though doing so likely would cause her clients great harm, will be allowed to continue in a counseling program. On the other hand, if Hall’s decision stands, universities will have a “road map” to cashier out any student, in any program, who holds views on any contentious political issue that contradicts majority faculty opinion.
Given the stakes, it’s hard not to hope that the recommendation offered by FIRE and NAS prevails (and that, through other means, Keeton never becomes a counselor). But it’s also hard not to criticize the Alliance Defense Fund, which represented Keeton at trial, for filing this case in the first place.


  • KC Johnson

    KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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5 thoughts on “A Hard Case—Are FIRE and NAS Wrong about Jennifer Keeton?

  1. “But I think KC’s concern about Keeton’s deviation from professional norms is overdrawn.”
    Even though Keeton would seem to hold extremely conservative views with regard to the gay agenda (and perhaps with regard to most culture war issues), I find it appalling that her right to hold those views has been assaulted in such an open and calculated way.
    To even question Keeton’s right to her beliefs and (shockingly!) assert the idea that she should not “be allowed to continue in a counseling program” encourage the bathos and expose the self-serving and tyrannical (however collegially constructed) methods of the gay agenda.
    Is anyone surprised that when teens and millenials on university campuses are polled on issues like SSM the result is always in lockstep with those asking the questions?
    Students like Keeton are made to feel like outcasts and their academic endeavors destroyed.
    And with regard to the Duke case, there was always a thick layer of anti-heterosexual-male-athlete directing the methods of many of the Gang of 88 professors which was not highlighted, but palpable.
    Such issues require bold objectivity, removed from the current rabid political efforts of those whose underlying goal is not really free expression.
    I find it insulting to students to insinuate that they would somehow be brainwashed by those like Keeton who hold opposing views; however, this mindset certainly illustrates why identity politics thrives inside the academy.
    Allowing gay professors and “activists” to decide the future of students like Keeton and to mold the university’s cultural environment is analogous to allowing MADD the courtroom power to decide the legal fate of drunk drivers.
    To describe what was done to Keeton as dishonest and hypocritical would almost be to promote those terms to the level of respectability.

  2. Peter’s last two sentences go well beyond the argument offered in the FIRE/NAS brief. The brief contends (incorrectly, in my opinion) that even in a vocational/credentialing program, there’s essentially nothing a student can say in an educational setting that would allow the program to remove him. But, the brief also implies, the standards in a practicum differ.
    And so, in my hypothetical above, if a counseling student in a practicum insisted on recommending that all black patients receive anti-psychotic drugs, the student would be removed from the program. Similarly, I had assumed, the FIRE/NAS brief conceded that ASU could flunk out Keeton if, in a practicum, she actually went ahead with her stated agenda of prioritizing her religious beliefs over the APA’s guidelines, and recommended harmful treatment (conversion therapy). But Peter’s last sentence suggests that even then, ASU would have to credential Keeton, and that her future gay and lesbian clients would have to find out (exactly how isn’t clear to me) that when treating them, she’d prioritize her religious beliefs over their well-being.
    That seems to me an unsustainable position. It’s my sense that in any health-related educational program–whether physical or mental health–the expectation is that students will follow the guidelines of the relevant national organization(s) and key peer-reviewed journals. Dismissing these findings as “political” without addressing their substance strikes me as the sort of argument we all rightly ridicule when offered by the far left on educational matters.
    To return to my basic concerns with the brief: while I completely agree with FIRE and NAS about the potential dangers of this decision, I also fear that the FIRE/NAS brief–and certainly the ADF, whose filing of this lawsuit set the stage for what could be a calamitous result for higher education–fails to distinguish between the purpose of vocational/credentialing programs and other educational endeavors, and envisions an environment in these programs essentially can have no standards at all.

  3. At one time the consensus of the psychological counseling profession was that homosexuality was a disorder; at another time, the profession in its wisdom decided that homosexuality was normal. The public is not blind to the reality that the APA and other such organizations are subject to intellectual fashions, the general Zeitgeist, and especially the views of progressive activists. The “relevant position” of the APA isn’t a scientific fact; it is just a political opinion dressed up as one. It has all the authority that a political pronouncement can have, no more and no less. Why exactly courts should defer to it and public universities should regard it as their solemn duty to buttress it is a matter of the dynamics of opinion making.
    Keeton has a right to her views and the right to seek credentials to counsel people despite her holding views that the opinion elite in her chosen profession reject. And members of the public have the right to reject her services if they find her views unhelpful or objectionable. Keeton doesn’t by any measure seek to hide her opinions. No one is going to be caught unaware that she had a dissenting view on the APA’s official stand on homosexuality.
    KC Johnson’s argument leaves me a bit puzzled. It seems grounded in an appeal to the authority of a body that I am surprised he holds in such high esteem. But OK, he regards the APA’s views as determinative of what constitutes good and bad practice in counseling. All I can say is that the general public has a much broader understanding of the situation. People not only shop around for counselors, it is pretty much an American pastime. At least once a week I overhear conversations in which someone compares counselor A to counselor B, and says why she switched. There is nothing unrealistic about expecting clients to make informed choices. And would limiting the choices by accepting the APA’s verdict on homosexuality as dispositive really be an advance?
    I don’t really have a stake in the substance of the debate. Like KC, I am mainly interested in how this case plays out as something that opens or closes the possibilities of academic freedom. But I think KC’s concern about Keeton’s deviation from professional norms is overdrawn. Keeton is out of step with the APA. So what?

  4. I agree completely with Peter Wood’s first paragraph–which is why I hope that the FIRE/NAS position prevails on appeal; why I agree with much of the FIRE/NAS brief; and why I found the ASU “remediation” strategy so unappealing. Of course, as I noted in the post, much of the blame here goes to the ADF for filing a very questionable case–one that had the potential, if the ADF lost, to set such a negative precedent.
    I disagree with Peter’s second paragraph. Regarding counseling, the relevant position on homosexuality (and conversion therapy) is not mine or his, but that of the APA. That’s the critical difference between the Ward and Keeton cases. Ward understood that her religious beliefs made her unsuitable to counsel gay and lesbian people, and proposed a perfectly reasonable compromise, which her university rejected; Keeton (at least based on the record in the lower-court decision) believes she has the right to use her power as a counselor to impose her religious beliefs on gay and lesbian people, even though her preferred method (conversation therapy) has been cited by the APA as harmful (http://psychology.ucdavis.edu/rainbow/html/resolution97.html). If a counseling program doesn’t have the authority to screen out candidates who affirm a willingness to prioritize their religious beliefs over the guidelines of the APA, what’s the purpose of having such a credentialing scheme?
    In that respect, Peter’s argument that “someone who disagreed with Keeton’s views on homosexuality would almost certainly be free to decline her services and seek a counselor who has a more congenial outlook” misses the point, since it places the credentialing burden on the client rather than the counselor. As I understand the counseling profession, a client, at the very least, has the right to expect a credentialed counselor will adhere to professional norms, and who will not use the counseling process to impose his or her religious (or, say, political) beliefs on the client by recommending “treatment” that contradicts professional norms. In Peter’s version, a client should have no such expectation, and instead should shop around, hoping that the counselor he or she ultimately chooses will be professional. That strikes me as quite unrealistic.
    I’d urge people, on that point, to take a look at the lower-court decision. My sense is that the judge recognized that Keeton had no business serving as a counselor. Unfortunately, he took from that recognition a desire to uphold ASU’s action, which in turn led him to lay down principles that–as the FIRE/NAS brief points out–could well have a disastrous effect on undergraduate education.

  5. KC Johnson considers Jennifer Keeton’s views on homosexuality as inappropriate for someone seeking a career as a professional counselor. He correctly points out that the amicus brief that FIRE and we at NAS filed in support of Keeton focuses not on the substance of her views but on the lower court’s willingness to abide by Augusta State University’s violation of her First Amendment rights. The larger implication of the lower court’s decision is that a university has the lawful capacity to coerce students to change their opinions. If the decision stands, it would billow the sails of university Political Correctness with the strong winds of judicial authority. It isn’t hard to imagine a university such as Duke faced with something like the spurious accusations against its lacrosse players deciding that the opinions of the accused needed to be brought in line with “community standards.” A bad example? To the contrary, I suspect that KC Johnson would admit it is a pretty good example of how the lower court decision could play out.
    His concern is, rather, that Jennifer Keeton holds views on homosexuality that would lead her to counsel people in a way he disapproves. My own view-not that of the NAS-is that the field of counseling thrives despite vigorous disagreements among its practitioners on a great many issues, including homosexuality. In practical terms, those who seek counseling generally shop for their counselors. Someone who disagreed with Keeton’s views on homosexuality would almost certainly be free to decline her services and seek a counselor who has a more congenial outlook. It should not be up to the officials at a state university to decide in advance that her opinions on this subject are a disqualification for work in the field.
    Peter Wood
    National Association of Scholars

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