Friday, January 27, 2012
The Sixth Circuit today in its opinion in Ward v. Polite remanded the First Amendment free speech and free exercise of religion claims of a graduate counseling student disciplined because she would not counsel a gay client in her required student practicum. The panel reversed the grant of summary judgment in favor of Eastern Michigan University.
This case may bring to mind a very similar situation from Augusta State University, Georgia, Keeton v. Anderson-Wiley, that we discussed earlier, in which the Eleventh Circuit held that the student-counselor did not have valid First Amendment claims. However, the Sixth Circuit distinguished Keeton at length:
At one level, the two decisions look like polar opposites, as a student loses one case and wins the other. But there is less tension, or for that matter even disagreement, between the two cases than initially meets the eye. The procedural settings of the two cases differ. In Keeton, the district court made preliminary fact findings after holding a hearing in which both sides introduced evidence in support of their claims. Not only are there no trial-level fact findings here, but Ward also gets the benefit of all reasonable factual inferences in challenging the summary-judgment decision entered against her.
The two claimants' theories of constitutional protection also are miles apart. Keeton insisted on a constitutional right to engage in conversion therapy—that is, if a "client discloses that he is gay, it was her intention to tell the client that his behavior is morally wrong and then try to change the client's behavior." That approach, all agree, violates the ACA [American Counseling Association] code of ethics by imposing a counselor's values on a client, a form of conduct the university is free to prohibit as part of its curriculum. Instead of insisting on changing her clients, Ward asked only that the university not change her—that it permit her to refer some clients in some settings, an approach the code of ethics appears to permit and that no written school policy prohibits. Nothing in Keeton indicates that Augusta State applied the prohibition on imposing a counselor's values on the client in anything but an even-handed manner. Not so here, as the code of ethics, counseling norms, even the university's own practices, seem to permit the one thing Ward sought: a referral.
The two decisions in the end share the same essential framework and reasoning. They both apply Hazelwood to curricular speech at the university level, and they both show that the even-handed enforcement of a neutral policy is likely to steer clear of the First Amendment's free-speech and free-exercise protections. Both decisions also are consistent with Christian Legal Society, which considered whether a Christian organization at a law school could insist that its members adhere to certain faith-based codes of conduct. The Court held that the law school's antidiscrimination policy, requiring registered student organizations to accept all comers, did not violate the First Amendment on its face, yet it remanded the case to determine whether the school selectively enforced the policy against some organizations but not others. While Keeton involved Augusta State's across-the-board application of an ethical rule that prohibits counselors from imposing their values on clients, today's case reveals evidence that Eastern Michigan University selectively enforced a no-referral policy against Ward.
The Sixth Circuit's attempt to distinguish its opinion from Keeton - - - mostly on procedural and factual grounds - - - seems persuasive. Yet the distinctions may be too finely wrought.
On remand, the district court will be considering injunctive relief. As to damages, the question of qualified immunity remains. Clearly, however, the Sixth Circuit found that there was no valid facial challenge and affirmed the dismissal of some defendants.
[image: Vincent Van Gogh, Stone Bench in the Asylum at Saint-Remy (The Stone Bench), via]