Anti-Gay Student's Suit Revived

A federal appeals court on Friday revived the lawsuit of a former graduate student in psychology who was kicked out of a master's program at Eastern Michigan University for refusing to counsel gay clients in a way that affirmed their identities.

The student, Julea Ward, argues that the university's actions denied her the right to observe her faith, while the university maintained that Ward was trying to get around legitimate academic requirements. The case is one of two moving through federal courts right now that center on the right of graduate programs in psychology to enforce requirements -- based on outside groups' ethics codes and the relevant department's -- that students counsel all clients in affirming, nonjudgmental ways.

The rulings in these cases have to date been in favor of the universities, so advocates for religious students were quick to declare Friday's ruling a big win. But the ruling is based in part on some key differences between the case at Eastern Michigan and the other one (at Augusta State University), and the ruling explicitly said that there might be grounds for Eastern Michigan to prevail.

The ruling by the U.S. Court of Appeals for the Sixth Circuit is being scrutinized both by advocates for religious students and those who want academic programs to enforce professional ethics in inclusive ways. But the case is now also attracting attention from advocates for a free student press in higher education. That's because Friday's ruling cites a 1988 Supreme Court decision that backed the right of administrations to censor high school student newspapers. Supporters of the campus press believe that the decision should not be applied in higher education (and generally it isn't), so the citation surprised and worried many of them.

The appeals court ruling overturned a federal district judge's finding in 2010 that Eastern Michigan was justified in kicking Ward out of the program. The 2010 ruling, by Judge George Steeh, said that Eastern Michigan's polices were "quite narrowly drawn" and noted that they were "not a prohibition on a counselor making statements about their values and beliefs in a setting other than with a client." Eastern Michigan bases its policies on guidelines from the American Counseling Association, which bar discrimination based on sexual orientation, and require counselors to be trained and able to interact with clients without imposing the counselor's values.

A unanimous decision for the appeals court, written by Judge Jeffrey S. Sutton, said that a jury might reasonably conclude that Eastern Michigan was using its policies as a pretext for discriminating against Ward for her religious views. Ward describes herself as an "orthodox Christian," who believes that homosexuality is "morally wrong." A significant part of her case is that she said that she would refer gay clients to other counselors, not seek to impose her views on them. She argues that this would not harm a client or force her to espouse things with which she does not believe. Ward argues as well that Eastern Michigan and others involved in training counselors in fact tolerate such "values-based" referrals. Eastern Michigan says that allowing someone to refer all members of a group to other counselors is a specific violation of the counseling association's code of conduct, and that is why Ward was dismissed.

The appeals court decision notes the lack of a written university policy of "no referrals," and says that this policy may have been an "after-the-fact invention" to justify religious discrimination. Further, the appeals court says that the hearing Eastern Michigan conducted on Ward was "not a model of dispassion," and featured questions about her religious views with regard to gay people.

"Many of the faculty members’ statements to Ward raise a similar concern about religious discrimination. A reasonable jury could find that the university dismissed Ward from its counseling program because of her faith-based speech, not because of any legitimate pedagogical objective. A university cannot compel a student to alter or violate her belief systems based on a phantom policy as the price for obtaining a degree," the decision says.

At the same time, however, the decision notes that "none of this means Ward should win as a matter of law." The university may well be able to prove at trial that its no-referrals policy was not a pretext, but was a legitimate curricular decision (as the university maintains it was). "Just as the inferences favor Ward in the one setting, they favor the university defendants in the other. At this stage of the case and on this record, neither side deserves to win as a matter of law."

The decision also takes care to argue that the appeals court did not view itself as disagreeing with a December ruling by the U.S. Court of Appeals for the 11th Circuit, rejecting a suit by Jennifer Keeton, who argued that she was a victim of religious discrimination when Augusta State University kicked her out of a psychology master's program. In Keeton's case, she wanted not just the right to avoid "affirming" gay sexuality, but to encourage "conversion therapy" to gay clients and to tell them that they could choose to be straight. (A wide consensus among psychology and sexuality experts holds that people don't select their sexual orientation and that encouraging people to change their orientation can be seriously harmful to them.)

In Keeton's case, the Sixth Circuit ruling said, there was no evidence that the university's decisions about her were motivated by anything but a belief that she was committed to engage in conduct that violated codes of conducts and curricular requirements.

The Alliance Defense Fund, which has represented both Ward and Keeton, praised Friday's ruling. “Public universities shouldn’t force students to violate their religious beliefs to get a degree. The court rightly understood this and ruled appropriately,” said Jeremy Tedesco, the lawyer who has worked on Ward's case. The group has stressed the issue of religious freedom in both the Eastern Michigan and Augusta State cases.

Steve Sanders, a visiting faculty member at the University of Michigan Law School, who has written extensively about legal issues related to academic freedom and sexual orientation, cautioned against seeing last week's ruling as setting "any precedent for the idea that a student's religious convictions must be allowed to override the requirements of her academic program or the ethical standards of her profession." He said that the key issue at play is whether Eastern Michigan enforced its rules in a "selective" way that discriminated against Ward. "This decision concerns a disagreement about facts, not about the law."

Sanders said that he was concerned that the university might now try to settle the case, which would give "the plaintiffs leverage to extract concessions from the university that may or may not impinge on its faculty's autonomy to maintain and apply academic policies to future students in similar situations."

A spokesman for Eastern Michigan said that the university remained committed to enforcing its standards and those of groups like the American Counseling Association. "Eastern Michigan University takes seriously our Constitutional mission to ensure that every student who graduates from our academic programs meets applicable curricular and regulatory requirements. We will continue to pursue and defend this mission at every opportunity," he said.

Hazelwood and the Student Press

One unexpected feature of the ruling on Ward's case was the appeals court's reliance on a 1988 Supreme Court decision called Hazelwood School District v. Kuhlmeier, which generally gave public schools far more leeway to censor the student press in high schools than many press advocates believed was appropriate. While a 2005 ruling by the U.S. Court of Appeals for the Seventh Circuit cited Hazelwood in a higher education context, that has not generally been the case.

In the Eastern Michigan suit, the appeals court cited Hazelwood to distinguish between speech that is clearly associated with an educational institution and speech that might be more distant from the institution. "The closer expression comes to school-sponsored speech, the less likely the First Amendment protects it. And the less the speech has to do with the curriculum and school-sponsored activities, the less likely any suppression will further a 'legitimate pedagogical concern,' which is why the First Amendment permits suppression under those circumstances only if the speech causes 'substantial disruption of or material interference with school activities.'"

The appeals court introduces Hazelwood by noting that the decision may not be applied in identical ways in high schools and colleges. But the appeals court argues that it is still relevant.

"The Hazelwood test, it is true, arose in the context of speech by high school students, not speech by college or graduate students. But for the same reason this test works for students who have not yet entered high school, it works for students who have graduated from high school. The key word is student. Hazelwood respects the latitude educational institutions — at any level — must have to further legitimate curricular objectives," the court says.

The Student Press Law Center released a statement from Adam Goldstein, a lawyer for the center, saying that extending Hazelwood to colleges is dangerous. "If they treat this as the law of the circuit, it turns being a student into an infirmity only graduation can cure," he said.