Twice in the past two months, federal appeals courts have issued decisions in cases involving the termination of Christian school counseling students from their graduate programs. Both cases involve religious objections to homosexual behavior.
The outcomes, however, were different. In Keeton v. Anderson-Wiley, released Dec. 19, the U.S. Court of Appeals for the Eleventh Circuit ruled against student Jennifer Keeton (see my previous post, Christians, Gays and Academic Freedom). In Ward v. Polite, decided Jan. 27, the Sixth Circuit Court of Appeals ruled in favor of student Julea Ward.
It might appear that the two courts disagreed about how to balance the rights of Christians and gays with respect to counseling and counselor education. The score is now tied at 1-1, it might seem, with the Supreme Court perhaps destined to resolve the conflict between the circuits.
On closer analysis, however, the apparent conflict disappears. Both decisions represent careful efforts to respect and coordinate competing considerations, with the differing outcomes reflecting real differences between the cases.
First, the similarities. Keeton and Ward are both Christians who believe that homosexual behavior is sinful. Both were graduate students in school counseling programs at public universities (in Georgia and Michigan respectively). Both did well academically but were terminated in connection with their potential counseling of gay clients in a required practicum. Both allege violations of their First Amendment freedoms of religion and expression.
There were also similarities in the two opinions. Both courts were explicit that all students have a right to believe whatever they believe and to express their views on topics of class discussion. This includes a right to disagree with prevailing ethical standards.
The two courts also agreed that counselor-client interaction is not a forum for free speech but rather reflects a professional relationship subject to the ethical norms of the profession. They agreed, moreover, that student counselors are subject to these norms and that faculty supervisors have the authority and responsibility to enforce ethical norms that are part of the curriculum.
Why, then, the different outcomes? The two cases, explained the Sixth Circuit, differ both procedurally and factually. Keeton had "insisted on a constitutional right to engage in conversion therapy." If a client turned out to be gay she would "tell the client that his behavior is morally wrong and then try to change the client's behavior." Such an approach, both courts agreed, imposes a counselor's values on a client in violation of professional ethics and the counselor education curriculum.
Ward also believes in conversion therapy but did not insist on a right to engage in it as part of her education. She had studied the ethics of counseling in her classes and written about the ethics of referral. When asked to counsel a gay client in practicum, she responded that she could not meet the ethical obligation to "affirm" a same-sex relationship. She asked her faculty supervisor either to refer the client to another student or to permit her to make a referral if relationship issues arose.
The client was referred and Ward was subsequently terminated from the program. In response to her federal lawsuit, the university requested and was granted summary judgment in its favor. Ward appealed to the Sixth Circuit.
Reviewing the record and the law, a three-judge panel of the Sixth Circuit concluded unanimously that the case should go to trial. Although the university claimed it had dismissed Ward because her request to make a referral violated professional ethics, "a reasonable jury could find otherwise."
Specifically, the Sixth Circuit noted that referrals are often permitted in the relevant professional standards and that the program's claim that it did not permit referrals in practicum was not supported by any written policy and arguably was contradicted by its past practice. This was not sufficient to show a violation of the First Amendment by the university but it raised material questions of fact that could only be resolved by a jury.
It remains to be seen how Ward v. Polite will turn out. But that will depend on a jury's interpretation of specific facts, not on a choice between Christians and gays. Keeton v. Anderson-Wiley may have looked like a victory for gays and Ward v. Polite may look like a victory for Christians but both decisions are reasonable efforts to coordinate religious liberty, equal rights, professional ethics and academic freedom.