The Keeton Case–An Abuse of Academic Power

Cross-posted from NAS.

KEETON.jpg

Several weeks ago, KC Johnson–a scholar I much admire, not least for his fearless dedication to principle–published an essay on Minding the Campus under the title, “Keeton Defense Contradicts NAS Principles.”  We offered Professor Johnson the opportunity to re-post his article or contribute a further statement on the NAS website.  He accepted and posted both the article and an addendum of about the same length as his original.

I would like to respond in defense of the NAS’s position.  But, first, for those who haven’t followed the controversy, a summary.

Keeton So Far

It concerns a court case in Georgia.  Jennifer Keeton was a graduate student at Augusta State University (ASU) where she began studying for a degree in Counselor Education in fall 2009.  She completed two regular semesters and two summer sessions but was then dismissed from the program because she refused to participate in a “remediation plan” that was designed either to change her views on homosexuality or convince her to misrepresent those views.  Miss Keeton, citing her Christian beliefs, held that homosexuality is a form of “identity confusion,” and had stated this view in class.  The faculty members involved rejected her view and cited it as “a violation of the codes of ethics to which counselors and counselors-in-training are required to adhere.”  The remediation plan to which she was assigned singled out Miss Keeton’s view that homosexuality is a “lifestyle,” and posited that “sexual orientation is not a lifestyle or choice, but a state of being.”   (The quotations are from Keeton’s complaint in U.S. District Court, July 21, 2010.)

The most recent development was a decision handed down by a three-judge panel of the 11th Circuit, January 6, 2012.  The three judges upheld an earlier ruling denying Keeton’s motion for a preliminary injunction against her dismissal from the program.

This is likely to be only a way-station in Keeton’s search for legal relief.  But the 11th Circuit panel did use some strong language to uphold the Augusta State University’s position.  Keeton had claimed that the college had violated her First Amendment rights to free speech by (in the words of the panel) “discriminating against her viewpoint; by retaliating against her for exercising her First Amendment rights and finally by compelling her to express beliefs with which she disagrees.”  To these claims, the panel replied that the “ASU’s counseling program is not a traditional public forum,” but a “supervised learning experience,” and therefore the First Amendment does not apply.  It also held that ASU didn’t impose the remediation plan out of a desire “to discriminate against her personal and religious viewpoint,” but because it plausibly believed Keeton intended “to impose her personal religious views on her clients.”  The court decided that ASU “officials were not asking her to change her beliefs.”  Rather, the school’s primary concern was her “ability to be a multiculturally competent counselor” and her “ability to maintain ethical behavior in all counseling situations.”  At particular issue was Keeton’s supposed determination to “refer clients to conversion therapy,” i.e. therapy aimed at changing an individual’s sexual orientation.

In general, the 11th Circuit panel upheld the idea that ASU acted appropriately because the view of homosexuality its actions embody is warranted by the American Counseling Association’s Code of Ethics.  The panel recognized that, “As a condition of continuing as a student in the ASU counseling program, Defendants required Miss Keeton to pledge to affirm the morality of sexual conduct she believes immoral,” but found this requirement educationally and professionally appropriate.  That’s because, “Keeton expressed her intent to violate several provisions of the American Counseling Association’s (ACA) Code of Ethics, which ASU was required to adopt and teach in order to offer a counseling program accredited by the Council for Accreditation of Counseling and Related Educational Programs (CACREP).

NAS’s Position

The National Association of Scholars along with the Foundation for Individual Rights in Education (FIRE) filed an amicus brief on behalf of Keeton.  It was drafted by Eugene Volokh and filed in October 2010.  We argued that Keeton’s First Amendment rights had indeed been trampled.  The brief said that the First Amendment presumptively forbids imposing special obligations on university students who express particular viewpoints; that the lower court had erred in equating ASU’s retaliation against Keeton with normal curricular decisions; and that the lower court’s decision–to rely on “academic standards” as a tool for barring disfavored speech–would justify a vast range of restrictions on intellectual freedom.

When the 11th Circuit panel handed down its decision, NAS reiterated these points.  We think the panel made a mistake.  One dimension of the mistake is that it would force Christians, like Miss Keeton, who believe that homosexuality is immoral, to either tailor their beliefs to ACA standards or similar doctrinaire social positions, or else forego careers in the counseling profession.  That is, of course, just one consequence.  The 11th Circuit panel’s decision opens the door for colleges and universities to de-select students holding any beliefs that happen to be in disfavor with the factions that dominate the increasingly ideological academic and professional associations.  It doesn’t take much imagination to see where this leads.

Professor Johnson’s Criticisms of NAS

Professor Johnson’s criticisms should be read in full in his own words, but for the sake of brevity, I will summarize.  He makes two main points.  First, the panel’s ruling would not exclude “Christians” from the counseling profession.  Second, the NAS’s position in the Keeton case contradicts NAS’s own defense of equal treatment for all on campus.

My Response

The first criticism is simply a matter of whether the word “Christians” is taken to mean “all Christians” or “some Christians.”  I would have thought that both context and common sense would have favored the latter reading.  There are clearly many Christian denominations that have embraced contemporary views of homosexuality.  In New York City, it is easy to find Christian churches flying the rainbow gay flag.  But there are also many denominations that have stayed with traditional Christian teachings that homosexual behavior is always wrong.  Keeton comes from a branch of Christianity of that type.  I don’t know the proportions of the denominations on either side, but I’ll stick with the view that there are substantial numbers of Christians who would be excluded from the counseling profession if the 11th Circuit panel’s decision stands.

Is the NAS, by defending Keeton’s right to express her views on homosexuality, forsaking its defense of equal treatment for all on campus?  Not at all.  We defended Keeton because she was (and at the moment still is) the object of an abuse of academic power.  She should have the right to hold and express her views on homosexuality without having to give up her educational and career aspirations.  It is plain that her views are indeed in conflict with the American Counseling Association’s Code of Ethics, and that this Code has been given further force by the counseling education accreditation body, CACREP.  But existence of a bureaucratic apparatus to enforce a form of political correctness does not change its ideological character.

The court in this case has given extraordinary deference to the mechanism by which mere opinions are elevated to the status of professional standards.  There is no deep and compelling reason why all members of the counseling profession should be made to hew to a single view of homosexuality.  Realistically, the vast majority of people seeking professional careers in counseling in the United States today are going to be not only relaxed about homosexuality, but also enthusiastic about the principle of affirming the sexual orientations of clients.   But does the counseling profession have any room at all for the minority who have dissenting opinions?   We think it should, and that universities offering graduate instruction in this field should champion the principle of intellectual diversity, even if that means challenging the edicts of accreditors and professional associations.  Those edicts should not outweigh the First Amendment or a student’s freedom of conscience.

“Equal treatment” in this case means protecting those who espouse unpopular views, even highly disfavored ones.  Keeton posed no threat to other students or to potential clients.  She wore her views openly and gave fair warning to anyone who disagreed with her.  She should not have been denied the opportunity to complete her degree program merely because she espouses an unpopular opinion.

An Emotionally Charged Issue

The treatment of gays and lesbians, as well as other sexual minorities, remains a fraught issue in American society.  We have no wish to stereotype the contending views and the NAS does not take positions on matters outside higher education.  We do not advocate for or against the view that counselors should affirm the sexual orientation of their clients.  Our position, rather, is that universities should leave their students free to decide.  The error of Augusta State University–a public institution–was to impose its own doctrinal position on Miss Keeton.

Professor Johnson thinks that doctrine well founded and consonant with the way in which the counseling profession should go about his work.  He may be right.  But the wholesomeness of the doctrine is not the issue.  The issue is rather whether a public university should be imposing a doctrine at all.

The argument that it should impose this particular doctrine–that counselors should affirm the sexuality of their clients–is that it embodies a correct standard of professional practice.  Not to impose it would be to accede to a form of malpractice.

The argument against imposing this particular doctrine is that it is indeed “doctrine”–an attempt to foreclose discussion on a matter that remains intellectually and morally unsettled.

We realize that to say an issue is “unsettled” pleases neither of the sides who are invested in the view that they have the right answer and that all reasonable people ought to be compelled by reason and evidence to agree with them.  NAS, however, is determined to favor First Amendment freedom, even in circumstances where individuals for whom we have the highest respect regard the views to be protected as undeserving.

What’s Next

Keeton is appealing the panel’s decision by asking the 11th Circuit to give her case full consideration.  Her lawyers are focusing on the questions: (1) “Whether a state university may require a student to promise to sincerely convey a controversial moral judgment that the student disbelieves as a condition of receipt of a state education;” and (2) whether persons have a right against state-compelled speech in any context other than one in which the state makes their presence mandatory.”   That is to say, the appeal narrows the dispute from whether Keeton’s First Amendment rights were violated to the more specific question of whether a state university has the power to require from a student a sincere promise to uphold a “controversial moral judgment.”

This might sound dry, but the matter at stake is one of real importance.  As Keeton’s petition to the 11th Circuit for a re-hearing eloquently puts it:

This case presents a rare instance of blatant, express, and coercive reeducation that should be intolerable across the political spectrum. A business school could not require its students to “affirm” capitalism or disavow socialism as a condition of receipt of an education. A geology department could not require its students to affirm–or deny–the reality of global warming to avoid expulsion. A law school could not require its students to affirm–or deny–the interpretive or moral legitimacy of the Supreme Court’s substantive due process jurisprudence, nor require students to promise to defend–or oppose–the death penalty in their future professional efforts. A medical school could not require its students to affirm–or deny–female circumcision or sex-change operations. A political science department could not require its students to affirm any particular school of political thought or civic policy proposal. Nor could any of these educators require students to give a running account of the status of their beliefs, and make “correct” beliefs and a promise of ideological cooperation (instead of academic performance) the condition of continuing receipt of a State education.

 The ASU faculty’s conduct in this case is a renunciation of individual conscience and academic freedom, and is intolerable under the First Amendment.

Can Keeton be required “to announce the morality of homosexual sex to clients seeking such approval?”  The 11th Circuit panel said yes.  But this kind of compulsion is deeply at odds with ordinary ideas of American freedom.  If one is seeking to join an organization that has an official creed–be it a church or a group organized to save wildlife, promote the rights of sexual minorities, or advance gun ownership–it would be perfectly reasonable to expect that agreement with the creed would be a condition of membership.  Universities have, within a limited sphere, a right to creeds of their own, as when they demand acceptance of principles of academic integrity as a condition of admission.  But this zone of enforced agreement should not extend to matters of moral judgment beyond the competence of the university to decide.

Conventional opinion now favors the view that homosexuality is simply part of the natural range of human variation.  Conventional opinion might well be right, but that is not really any kind of argument against the right of a minority to hold a dissenting view.

Perhaps the most disturbing part of this case is that ASU presented Keeton with an alternative.  According to ASU officials, she was free to hold her personal beliefs so long as she promised to lie about them in her dealings with clients.  The counsel for the University officials explained:

“[I]s it a requirement that the counselor lie? Absolutely.”

 And:

“She doesn’t have to believe it. But she does have to tell the client that [it’s okay to be gay].”

It is hard to think of more vivid evidence that a university has crossed a line that should never be crossed when it conceives of its academic standards as a requirement to lie.

Peter Wood

Peter Wood

Peter Wood is president of the National Association of Scholars and author of “Diversity: the Invention of a Concept.”

8 thoughts on “The Keeton Case–An Abuse of Academic Power

  1. Randy Thomas highlights the newest tactics being used by the progressive liberal movement in and outside of academia to intimidate those counselors who profess a Biblical worldview.

  2. I’m a liberal, but I appreciate Jim’s criticisms of the harsh stance of ASU (although the term “leftist fascism” was somewhat severe). His suggestion that Jennifer Keeton present a statement to her clients that she believed that homosexuality was a sin, and that she was willing to refer them to another counselor should they object seemed reasonable.
    Having said that, however, I have to agree with Victor Erimita that there may be limits to religious freedom vis-a-vis the requirements of a professional program. If an ultra orthodox jew enrolled in a nursing program and refused to touch a person of the opposite sex, or a patriarchal Christian refused to take required courses taught by women, it may very well be appropriate to suggest that they seek out other programs more in line with their religious views.

  3. Somewhere I learned that if positions are reversed and the decision stands then it’s a fair one. If the code of ethics stated that for gays that sexuality should not be affirmed and she were taking the stance that it should be would the court have decided differently?
    I don’t know enough about the history of the American Counseling Association but I suspect that at one time the standard was to NOT affirm a client’s sexuality if that client was a homosexual. And I suspect that the code of ethics was changed by men and women who took a stand against it.

  4. An example of leftist fascism. And these leftists have the gall to say that people should never have to hide what they are, and stay in the closet. Apparently that applies to gays, but not evangelicals.
    There was a way they could have satisfied their concerns, without requiring her to lie and hide her beliefs. They could have simply required that she sign a statement saying she would say the following when dealing with a gay client, or a client who holds gay friendly beliefs “Most counseling professionals hold the view that being gay is not a personal choice, or a moral failing, but an inborn condition, or a legitimate alternate life choice. I personally do not agree with that view, and regard it as a sin. If you cannot work with a counselor who holds that view, I will support your request to get another counselor”. I suspect she could have agreed with that compromise. But that would not be enough for these leftist totalitarians, they must eradicate the thought crime of saying gayness could be a sin.
    By the way, I do not agree with stigmatizing gayness as a sin, but I also believe in religious freedom in this country, and will support the right of others to support that view, as long as they don’t insist on legislating that view on others. But it is just as wrong for the left to force their view on others.

  5. “matters of moral judgment beyond the competence of the university to decide.”
    Ah, there’s the rub. The university doesn’t think there’s any such matter beyond its competence to decide. Its faculty and administration’s behavior in this case demonstrate this, in spades.

  6. Being an academic doesn’t make me less of a person with freedom to think as I wish and to express those thoughts. Isn’t that what academic “freedom” means?
    I’m lucky, neither the ABA (the accrediting agency) nor my University is into thought control. They may think that I’m an ass but they won’t do anything about it. Not so ASU.

  7. I agree that universities have become ideologically rigid and too intellectually homogeneous. But I do wonder whether the courts can or should tell universities they must accept any and all religious or other views that contradict what they take to be the standards of the profession in question. What if the student in question were a Wahhabi Muslim, for example, who believed infidels were inferior beings, or some such thing, and believed patients should be told that. Should any religious views at all be allowed as “alternatives” to the curricula being offered? Should, say, a faith healer who didn’t believe in most Western medicine be allowed to graduate medical school? Who is to decide which parts of the accepted views of the profession in question can be refuted by the student? I’m not sure where the line should be drawn.

Leave a Reply

Your email address will not be published. Required fields are marked *