Eleventh Circuit applies Hazelwood, turns aside Georgia college student's claim of religious viewpoint discrimination
A Georgia college did not violate the First Amendment in ordering a would-be school counselor to complete remedial training to learn how to set aside her personal disapproval of homosexuality when counseling gay and lesbian students, a federal appeals court has ruled.
Jennifer Keeton failed to show that Augusta State University punished her for expressing religious views, or compelled her to espouse acceptance of homosexuality contrary to her beliefs, a three-judge panel of the Atlanta-based Eleventh Circuit U.S. Court of Appeals ruled Friday.
The ruling came at a preliminary stage of Keeton's case, in which she was seeking a court order reinstating her to the ASU counseling program while her lawsuit against the college continues. The judges found that Keeton had failed to demonstrate a likelihood that, at trial, she will be able to prove a violation of her First Amendment right of free speech or free exercise of religion, and therefore denied her petition for reinstatement.
Significantly for the First Amendment interests of college students, the Eleventh Circuit relied in part on the Supreme Court's 1988 Hazelwood School District v. Kuhlmeier ruling, involving censorship of a high school newspaper. Whether Hazelwood applies to the speech of students beyond K-12 is a matter of substantial dispute, though the Eleventh Circuit has applied Hazelwood in the university setting at least once before.
According to her lawsuit, Keeton was summoned to a meeting with the head of her department in May 2010 and presented with a "remediation plan" to correct her "improper professional disposition" toward gay and lesbian students. The plan was a response to Keeton's comments -- both in class and informally to classmates -- that, if a student acknowledged being gay, she would counsel him that homosexuality is "not okay," and that she approved of "conversion therapy," which theorizes that people can be counseled into changing their sexual orientation.
ASU officials told Keeton that, if she acted on these beliefs when counseling actual students in a clinical training program -- where she was about to be placed as a prerequisite to getting her degree -- she would be violating the code of ethics of the American Counseling Association (ACA).
The remediation plan included attending "diversity sensitivity training" workshops and reading articles about working with clients of differing sexual identity, and submitting monthly written progress reports. Keeton initially agreed to the plan, but then balked and challenged the plan in court.
A federal district judge refused Keeton's petition for an injunction directing ASU to reinstate her, and on Friday, the appeals court unanimously agreed. The judges relied heavily on the ACA ethical guidelines, holding that Keeton was punished not for the moral or religious views that she espoused, but for her stated intent to violate ACA principles, which dictate that school counselors "not impose their values on clients."
Writing for the three-judge panel, Judge Rosemary Barkett said that the Hazelwood standard "informs our analysis" because the counseling practicum was part of an official school curricular exercise and not a public forum for the expression of personal beliefs:
A school must, for instance, be free to give a failing grade to a student who refuses to answer a test question for religious reasons, or who refuses to write a paper defending a position with which the student disagrees. ... No doubt, a law school would be permitted to require a student who expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state’s bar rules to take extra ethics classes before letting the student participate in a school-run clinic in which the student would be representing actual clients. These actions, like ASU’s officials’ imposition of the remediation plan, are the types of academic decisions that are subject to significant deference, not exacting constitutional scrutiny.The ruling was 3-0, but Judge William H. Pryor wrote a separate concurring opinion, emphasizing that schools and colleges may not censor students' personal professions of religious beliefs: "[W]e have never ruled that a public university can discriminate against student speech based on the concern that the student might ... express views at odds with the preferred viewpoints of the university."
To emphasize the importance of free expression, Pryor recounted the history of how the American Psychiatric Association changed its view of homosexuality as a mental disorder, due to the activism of practitioners who were willing to speak out against now-discredited theories that were once accepted as fact:
This change in opinion would have taken much longer if public universities had been able to expel students who rejected the prevailing view and intended to argue that homosexuality was not a mental disease. As the First Amendment protected the professionals who successfully advocated against the then-prevailing view of the psychiatric profession, so too does it protect Keeton should she decide to advocate that those professionals got it wrong.The case is Keeton v. Anderson-Wiley, No. 10-13925.