For the last seventy-five years, Augusta, Georgia has predominantly been known for its connection to the Masters, one of the nation’s most tradition-laden events in all of sports.  But less than a mile from Magnolia Lane, Augusta State University (ASU) has become embroiled in a legal controversy with a former graduate student that has captured the attention of religious groups and gay rights advocates alike.

In July 2010, Jennifer Keeton, a former ASU student pursuing a masters degree in school counseling, sued the public university on First Amendment free speech and free exercise grounds, after it threatened to expel her unless she agreed to participate in a remediation plan designed to improve her ability to counsel members of the GLBTQ community.  Along with her complaint, she sought a preliminary injunction barring ASU officials from dismissing her from the program.  In August, the federal district court denied her motion for a preliminary injunction in Keeton v. Anderson-Wiley, a decision that was upheld by the Eleventh Circuit Court of Appeals last month.

On a number of occasions during her first year in the Counselor Education Program, Keeton, a self-described devout Christian, expressed her belief that homosexuality is immoral.  She also told classmates and professors that she would have difficulty working with GLBTQ clients, that she would tell GLBTQ clients that “it’s not okay to be gay,” and that if she were unable to change their sexual behavior herself, she would refer them to someone who practiced conversion therapy.  Before Keeton’s second year was set to begin, in which she was scheduled to engage in one-on-one counseling with middle and high school students, ASU officials determined that her comments indicated an intent to violate four separate provisions of the American Counseling Association’s Code of Ethics, which counseling education programs are required to teach in order to maintain their accreditation.  ASU gave her a choice: participate in a remediation plan, or be dismissed from the program.

Keeton’s remediation plan would have required her to, among other things, attend three diversity training sessions focused toward working with GLBTQ clients, read ten peer-reviewed articles pertaining to effective counseling of GLBTQ clients, increase her interaction with the GLBTQ population by, for example, attending Augusta’s Gay Pride Parade, and write monthly reflection papers summarizing what she had learned.  An addendum to the remediation plan emphasized that Keeton was not being asked to change her beliefs, but rather to separate her beliefs from her counseling.  Keeton refused to participate in the remediation plan, opting instead to file a lawsuit against the university in the U.S. District Court for the Southern District of Georgia.  After the district court denied her motion for a preliminary injunction, she was expelled from ASU.

On appeal to the Eleventh Circuit, Keaton’s lawyers predominantly raised two arguments for why her expulsion was unconstitutional, both unsuccessfully.  First, Keeton claimed that the requirement that she participate in a remediation plan violated her right to free exercise of religion.  In Cantwell v. Connecticut, the court divided the free exercise clause into the freedom to believe and the freedom to act, and held that “the first is absolute but, in the nature of things, the second cannot be.”  The court established the current test for determining whether restrictions on actions violate the Free Exercise Clause in Employment Division v. Smith.  So long as the law that creates the interference has a religiously-neutral intent and is generally applicable, it need only be rationally related to a legitimate government interest to be upheld.  In Keeton, the appellate court determined that ASU had a neutral and general practice of crafting remediation plans when students failed to comply with the Code of Ethics.  Since ASU’s policy was rationally related to its interest in maintaining its accreditation—a requirement of ASU’s accreditation is that it “address the inability of some students to achieve counseling competencies that might impede performance”—the court rejected Keeton’s Free Exercise claim.

Second, Keeton argued that the remediation plan placed unconstitutional restrictions on her freedom of speech.  While Keeton’s statements are offensive to many, myself included, they are nevertheless legally protected.  In R.A.V. v. City of St. Paul, in which the Supreme Court declared unconstitutional a law that made it illegal to burn a cross, the Court stated that “the First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed.”  Unless the speech contains obscenities, defamatory statements, or “fighting words,” it is generally protected.  Though Keeton’s speech is legally protected, her right to speak is not absolute.  Because school classrooms constitute nonpublic forums, program officials may impose restrictions on speech, so long as they are viewpoint neutral and reasonable.  I believe that the Eleventh Circuit erred in determining that both criteria had been met.

The Eleventh Circuit determined that ASU’s decision to impose a remediation plan was viewpoint neutral, because it stemmed from Keeton’s expressed intent to violate the Code of Ethics, not from her religiously-based views on homosexuality.  I am unable to see how this makes ASU’s decision more neutral with respect to the views expressed in the speech.  Under ASU’s policy, students who express viewpoints inconsistent with the Code of Ethics will be made to undergo remediation, while students whose views are consistent with the Code of Ethics will not.

The Eleventh Circuit also found ASU’s policy to be reasonable, using the framework established in Hazelwood School District v. Kuhlmeier.  In Hazelwood, the court held that schools could regulate the content of students’ speech in “school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”  Applying this test to Keeton, the appellate court found that ASU had a legitimate pedagogical concern in teaching its students to comply with the Code of Ethics.  What troubles me about this is not the outcome the court reached, but the omission of a crucial step.  The court determined that it was reasonable for schools to teach students to comply with the Code of Ethics, but it never asked whether the content contained within the Code of Ethics was reasonable.  Suppose that in the 19th Century the Code of Ethics declared that women were psychologically inferior to men, or that in the 1950s it stated that African Americans were inferior to their Caucasian counterparts.  Would it still be reasonable for schools to teach compliance with the Code of Ethics?  As Judge Pryor noted in his concurring opinion, it was not long ago that the American Psychiatric Association maintained that homosexuality was a treatable mental disorder.  Would the court have come out the same way if Keeton had been forced to undergo remediation for clamoring that the then prevailing view was wrong?  Though a quick review of the modern day Code of Ethics reveals nothing unreasonable, this step is a crucial one, and one that the court failed to take.

Few can fault the judges in this case from wanting to protect school children from being indoctrinated by Keeton’s beliefs.  But as is often said, hard cases make bad law.  My argument is not that Keeton should be allowed to instill her beliefs in school children.  It is merely that forcing Keeton to choose between undergoing remediation and facing expulsion is not a legally permissible solution to the very real problem that ASU faced.  Instead, ASU might have been within its right to postpone Keeton’s scheduled counseling until further notice.  And if Keeton proved unable or unwilling to abide by the Code of Ethics, the American Counseling Association could have refused to certify her as a counselor.

Importantly, while the Eleventh Circuit rejected each of Keeton’s arguments, the decision was not a rejection of the merits of the claims themselves.  A court may only grant a preliminary injunction if the plaintiff demonstrates that she is substantially likely to win her case.  The district court and the appellate court decisions, which were rulings on Keeton’s request for a preliminary injunction, held that Keeton failed to meet this high burden.  While the opinions cast doubt on Keeton’s chances of winning her underlying suit, in the words of Yankee legend Yogi Berra, “it ain’t over till it’s over.”  When the case concludes, it will serve as an important precedent for the many professional associations that promulgate ethical codes.