[Counselor_Educ] Two recent Rulings Inside Higher Education

[Leinbaugh, Tracy]

Thanks, Tom. I had just read the ruling on the last case. Yes, the cases are very affirming.

Tracy Leinbaugh, PhD, NCC, PCC-S
Associate Professor
Chair, Department of Counseling and Higher Education
205 McCracken Hall
Ohio University
Athens, OH 45701

Phone: 740-593-0846
E-mail: leinbaug at ohio.edu<mailto:leinbaug at ohio.edu>

Show, by your actions, that you choose peace over war, freedom over oppression, voice over silence, service over self-interest, respect over advantage, cooperation over competition, action over passivity, diversity over uniformity, and justice over all.

From: counselor_educ-bounces at listserv.ohio.edu [mailto:counselor_educ-bounces at listserv.ohio.edu] On Behalf Of Davis, Thomas
Sent: Monday, August 23, 2010 4:54 PM
To: counselor_educ at listserv.ohio.edu
Cc: Renee Middleton; John J Biancamano
Subject: [Counselor_Educ] Two recent Rulings Inside Higher Education

CHE Colleagues,

I thought that you might be interested in the attached article which is very affirming to our Accreditation efforts, and to our professional standards. This reflects two court cases in which programs were aggressively pursued not just by Anti Gay student(s), but also by groups interested in subverting the rights of Gay Americans.
Although not mentioned in the article, both institutions are CACREP Accredited and in both cases they were processed through the programs Review and Retention policy required by CACREP...a practice that our program has followed for many years.

Tom
Tom Davis, Ph.D., PCC, Professor
Ohio University
Athens Ohio 45701
davist at ohio.edu
740-593-2958
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For a brief article regarding the judge's recent ruling on the Augusta State case, please visit the link below:

http://www.insidehighered.com/news/2010/08/23/psych

This information, coupled with the ruling on the Eastern Michigan case last month, is good news for the counseling profession and for higher education in general.  The judges in both cases make it clear that they are relying on the educators  and the profession to determine the appropriate preparation and course(s) of remediation for students who may need additional knowledge and skill development to function effectively as a counselor.  The judges also clearly keep the issues from falling into the trap of these cases being about religious freedoms being violated.  I suspect we will see both cases appealed (I believe they have already filed for an appeal in the Eastern Michigan case), but I think we have some good information from which to draw when we re-look at the policy on inclusion.  It could be that we do nothing and simply rely on the Standards to speak for themselves.




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Legal Loss for Anti-Gay Student
August 23, 2010
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For the second month in a row, a federal judge has backed the right of a public university to enforce standards of its counseling graduate programs -- even when religious students object to standards requiring them to treat gay people on an equal basis.

The latest ruling came Friday in Georgia, where Judge J. Randal Hall refused to grant an injunction that would block Augusta State University from expelling Jennifer Keeton from a master's program over her refusal to comply with a remedial program designed to deal with concerns faculty members and fellow students had about the way she would counsel gay people. Keeton has maintained that being forced to comply with the remedial program would effectively force her to change her Christian beliefs -- something that she and her legal backers maintain a public university has no right to do.

In his ruling,<http://chronicle.augusta.com/sites/default/files/SKMBT_60110082017270.pdf> Judge Hall tried hard to keep the case from becoming a culture wars flash point. "[T]his is not a case pitting Christianity against homosexuality," he wrote. What the case was about, he wrote, was the right of a public university to enforce reasonable academic standards. He wrote that "matters of educational policy should be left to educators and it is not the proper role of federal judges to second guess an educator's professional judgment."

The ruling noted that the standards for Keeton winning her injunction were quite high, and that the full record of the case has not been reviewed. But the judge framed the case as one of academic rights -- and he did so in a similar way to the ruling last month by another federal judge. In a full ruling in that case, the judge upheld the right of a counseling program at Eastern Michigan University to kick out a master's student<http://www.insidehighered.com/news/2010/07/28/counseling> who declined to counsel gay clients in an affirming way -- as required by the university program and counseling associations.

Advocates for religious students at secular universities had hoped to use the two cases to define broadly the right of students to ignore requirements of professional associations and related degree programs that relate to equitable treatment for gay people. And after the Eastern Michigan ruling, on which an appeal is expected, many supporters of the religious students suggested that the Augusta State case may have been their stronger one.

A gag order in the case prevents officials on either side from commenting, but the judge's ruling almost certainly will be cause for concern among those advocating for Keeton and those with similar religious beliefs. (A press release<http://www.alliancedefensefund.org/Home/ADFContent?cid=5346> issued by the Alliance Defense Fund, which is representing Keeton, issued when the suit was filed, offers its take on the case -- from before the latest ruling.)

Keeton's Objections and the University's Response

As detailed in court records, Keeton enrolled in the master's program in counseling at Augusta State in 2009, with the goal of becoming a school counselor. The program's curriculum -- as is common -- is based in part on teaching and abiding by the ethics code of the American Counseling Association, which requires counselors to avoid bias on any number of grounds (including sexual orientation) and to counsel individuals in ways that respect their lives and beliefs.

In classroom discussions and papers, Keeton (according to the judge's ruling) stated that she condemned homosexuality, said that sexual orientation was a matter of personal choice, and told fellow students that -- if given the opportunity to counsel gay people -- she would recommend "conversion therapy" in which gay people are counseled to become straight. (There is a scholarly consensus among psychology experts that such therapy doesn't work and can harm those who undergo it.)

Keeton's program directors placed her in "remediation status," citing their concerns that she would be unable to effectively counsel gay clients. Students who are placed in such status must complete certain requirements or they are expelled from the program. Among the tasks she was given:

 *   Attend three workshops on "improving cross-cultural" communication, with the idea of learning to work effectively with gay populations.
 *   Read at least 10 articles in peer-reviewed counseling or psychology journals on counseling gay populations.
 *   "Increase exposure to and interaction with gay populations" through activities such as attending the local gay pride parade, and report on those activities.
 *   Study the Association for Lesbian, Gay, Bisexual, and Transgender Issues in Counseling's Competencies for Counseling with Transgender Clients.<http://www.algbtic.org/resources/competencies.html>

Keeton originally agreed to try to comply with the requirements, but then said she couldn't and sued. She charged the university with engaging in "viewpoint discrimination" by violating her freedom of speech, her right to freely practice her religion, and her right to due process, among other allegations. She also sought the injunction that was denied Friday -- asking for an immediate order that would block the university from enforcing its rules against her.

Judge Hall cited several pieces of evidence submitted by the university as showing that Keeton was sanctioned not for her religious views but for the university's belief that she was going to act in ways inconsistent with the professional standards under which it trains students. Faculty members testified that they did not care about Keeton's personal religious beliefs or require that she change them to continue in the program -- only that she agree to treat people within the nondiscriminatory standards of the profession.

The university also submitted affidavits from fellow students in which they said that Keeton told them she planned as a counselor to tell any gay clients that their conduct was "morally wrong" and to try to get them to "change" themselves, and that she would seek to work in schools without any gay people or that she would refer gay people to other counselors. (Counseling standards specifically state that it's not permitted to refer clients because of sexual orientation or other factors, and that counselors are required to be able to work with all groups.)

In his decision, Judge Hall wrote that these facts made the issue not one of religious belief, but of specific curriculum-based decisions appropriately made by a faculty. "[T]he record suggests, and the testimony at the hearing bolsters, that the plan was imposed because plaintiff exhibited an inability to counsel in a professionally ethical manner -- that is, an inability to resist imposing her moral viewpoint on counselees -- in violation of the ACA Code of Ethics, which is part of the ASU counseling program's curriculum."

>From a legal perspective, he added, the issue isn't whether the curriculum requirements reflect the best possible approach -- only that they represent a legitimate one that is not "a pretext" but a genuine academic point of view.

"Whether I would have imposed the remediation plan, or what I would have included in the plan itself, is not the question, for the Supreme Court instructs that educators, not federal judges, are the ones that choose among pedagogical approaches," he wrote. "I will not, especially at this early stage of the litigation, serve as an ersatz dean. In fact, judicial restraint mandates that I not."
- Scott Jaschik<mailto:scott.jaschik at insidehighered.com>

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