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).
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.
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.
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.”
“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.