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David Moshman

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Christians, Gays and Academic Freedom

Posted: 12/22/11 08:01 PM ET

Just in time for the annual allegations of a war on Christmas, gays appear to have won a major legal victory over Christians. Did gays win this year's war on Christmas?

Actually, there is no such war, and there was no such victory. Far from ruling for or against gays or Christians, the opinion of a federal circuit court in Keeton v. Anderson-Wiley, released Dec. 19, carefully protects both religious liberty and academic freedom.

Jennifer Keeton was a graduate student in the Counselor Education Program at Augusta State University (ASU), a public university in Georgia, seeking a master's degree in school counseling. She describes herself as a Christian committed to biblical truth. As a Christian, she believes that sexual behavior is a choice for which one is accountable, that gender is fixed as male or female, and that homosexuality is an immoral lifestyle.

At the end of her first year, as a condition for counseling individuals in the program's clinical practicum, Keeton was told she must participate in a remediation plan to address what faculty perceived as deficiencies in multicultural competence, "particularly with regard to working with gay, lesbian, bisexual, transgender, and queer/questioning (GLBTQ) populations." Instead, she filed a federal lawsuit.

Keeton argued that the remediation requirement violated her First Amendment rights to free speech and free exercise of religion. Because the law moves slowly, Keeton requested a preliminary injunction to prevent ASU from dismissing her from the program for failure to complete the remediation plan. The district court denied the injunction because, it concluded, her lawsuit did not have "a substantial likelihood of success." She was then dismissed from the program.

Keeton appealed to the U.S. Court of Appeals for the Eleventh Circuit, which has now upheld the decision of the district court to deny the injunction. On the basis of its own full review of the First Amendment issues, it found no basis for a more favorable assessment of Keeton's likelihood of prevailing.

The court's decision, however, is highly respectful of both free speech and religious liberty, and says nothing about gay rights. Its basis for ruling against the Christian student is academic freedom, specifically the freedom of faculty to fashion a curriculum that adheres to reasonable professional standards.

Students, the court was clear, have a right to believe whatever they believe, regardless of whether they believe it for religious or other reasons. They also have a general right to express their beliefs, including a right to express them in classes when they are relevant to the topic of discussion. It would have violated Keeton's First Amendment right to free speech if the remediation plan was imposed on her because of disagreement with her views or to punish her expression of those views.

But the circuit court, like the district court, found that the remediation plan was imposed because Keeton had specifically and repeatedly "expressed an intent to impose her personal religious views on her clients," which would have violated the ethics code of the American Counseling Association (ACA). It was a legitimate curricular requirement that Keeton be able to "counsel GLBTQ clients in accordance with the ACA Code of Ethics."

This is not to say that any professional norm or curricular requirement would override any First Amendment claim. The court emphasized that the ACA requirement that counselors "refrain from imposing their moral and religious values on their clients" was "not designed to suppress ideas or viewpoints." The curriculum and professional norms "apply to all regardless of the particular viewpoint the counselor may possess."

The court also rejected the argument that ASU had infringed on the free exercise of religion. The program was adhering to legitimate professional norms. It could not -- and did not -- determine that Keeton was unable to adhere to these norms due to her religious views. That was for Keeton to decide. But ASU could set professional standards that all students, regardless of religious or other beliefs, must meet, and that was what it had done.

The ruling leaves Christians and others free to believe what they believe about sexual orientation. It leaves open the possibility that Christian students could prevail in a future case involving requirements that they change their beliefs or refrain from expressing them.

But the ruling makes clear that professional organizations can legitimately enforce ethical norms, that educators can teach such norms, and that students entering professional practice can be expected to abide by them. In the end, the decision is not about either Christians or gays. It's a victory for academic freedom and professional ethics, which are fully consistent with both religious liberty and gay rights.