Between Bible and Diploma

"A man ought to avow his opinions and defend them with boldness," John Adams once instructed. According to an opinion from the District Court for the Southern District, controversial ideas in the university classroom aren't so defensible. The U.S. District Court in Augusta, Georgia recently dismissed counseling student Jennifer Keeton's case against Augusta State University (ASU).

Keeton, a devout Christian and student of ASU's College of Education's Counselor Education Program, was dismissed when she refused to complete a remedial program after voicing opinions on homosexuality to faculty and fellow students.

Specifically, Keeton expressed that while she believed in and would affirm the dignity of all persons, she could not condone the propriety of homosexual relations or identity in a counseling situation. She occasionally made these views known during classroom discussions, writing assignments, and to other students. Concerned about her ability to professionally counsel, faculty members met with Keeton and explained that while she was a diligent student, she must "conform her professional conduct to either the Bible or professional behavioral standards."

They presented her with a remedial plan which she had to complete to remain in the Program. The proposed plan required that Keeton attend sensitivity training workshops, read articles discussing improving counseling effectiveness with GLBTQ populations, increase exposure and interaction with gay populations by, for example, attending Augusta's gay pride parade, and submit papers "summariz[ing] what she had learned form her research, how her study has influenced her beliefs, and how culture clients may benefit from what she's learned."

Keeton would have none of it and sued. "I have thought all along that I am truly able to affirm the dignity of all my clients and give respect to them," she said, "without agreeing that their sexual behaviors are right or healthy."

The Court dismissed both of Keeton's proffered claims that ASU had violated both the First Amendment, and additionally that ASU violated her rights under the Equal Protection Clause by mandating the remediation program. In essence, the Court held that ASU may impose the remediation plan to correct anticipated wayward conduct, which inevitably will impinge on Keeton's religious rights, because the plan was reasonably related to ASU's legitimate pedagogical interest in teaching its students to comply with prevailing counseling codes of ethics. Ultimately, the court writes, "Keeton's allegations fail to show that her faith motivated the faculty's imposition of the remedial plan."

The Court relied on Hazelwood School District v. Kuhlmeier in reaching its controversial decision. In Hazelwood, the Supreme Court held that officials at a public high school did not violate students' First Amendment rights by exercising editorial control over the student-run school newspaper. Educators must be able to exercise control over curriculum if their actions are reasonably related to pedagogical purposes. However, its application to higher education -- where free speech rights of adult students is presumptively broader -- is still the topic of hot debate.

Applying Hazelwood in the university setting would indubitably greatly expand academic administrators' power to impose speech restrictions. Additionally, while a school may legitimately administer a curriculum to students, they may not constitutionally single out students to complete extra requirements for expressing certain views -- no matter what political or religious philosophy they may espouse.

Anticipated violation is a key concept in this case because Keeton had not yet reached the clinical curriculum of the Program. She had never actually counseled students, and as such had not yet had the opportunity to violate counseling profession guidelines. The remedial plan was imposed because Keeton's comments led faculty to believe that she eventually would come in conflict with professional standards.

Keeton was not challenging the ability of a profession to regulate its members -- that is a well established principle. If Keeton violated codes of ethics in practice, she is certainly subject to censure by her profession. What is a concern for many free speech advocates is the University's ability to punish Keeton for expressing a viewpoint which might lead her to violate professional codes of conduct in the future.

It's for this reason academic freedom is at stake, explains Eugene Volokh, a law professor at UCLA who authored an amicus brief on behalf of the Foundation for Individual Rights in Education (FIRE) in the case. "This is not just a case about counseling procedures; it's not just a case about the clash between religious traditionalists and supporters of gay rights," Volokh said. "This is a case about what authority a university should have to retaliate against a student who expressed certain views inside and outside the class."

Volokh compares the remediation plan to a prior restraint, and argues that this decision opens the door for universities to punish students for any speech which may indicate a future inclination for unprofessional behavior. "It does not simply punish unprotected speech or conduct (here, negligent counseling), but also restricts fully protected speech (here, student debate inside and outside of class)," he writes in FIRE's brief. In effect, Keeton has been punished for engaging in debate with and expressing viewpoints to her professors and classmates -- activities usually heralded as the centerpiece of academic freedom.

Volokh proposes several examples of worrisome applications this decision might legitimize. One describes, "a counseling student harshly condemns Israel, and argues that all Israeli citizens are morally culpable for Israel's treatment of the Palestinians. That, an administrator could say, might be a predictor of future inability to empathetically and professionally counsel immigrants from Israel. Either the anti-religious or the anti-Israeli views might thus be interpreted as predictors of the possibility that the student will in the future "condone or engage in discrimination based on...culture, ...ethnicity, ...[or] religion/spirituality," in violation of the ACA's Code of Ethics. Such breadth of power could produce a profoundly chilling effect on student speech.

This is as important a point to remember for LGBTQ rights activists as it is for Christian ones. Only 15 years ago the Eleventh Circuit struck down the University of South Alabama policy denying the Gay and Lesbian Bisexual Alliance on-campus banking privileges and event funding because the student group was designed -- according to the University -- to "'encourage...persons' to violate state laws against oral or anal sex, or 'foster or promote a lifestyle or actions prohibited by' such laws."

The recent death of Dr. Richard Issay, the gay psychiatrist who led the battle to have homosexuality removed from his profession's list of disorders, is a poignant reminder of the import of academic freedom. Dr. Issay bravely challenged the entrenched standards his own profession and received substantial criticism -- including attacks from colleagues who even stopped referring patients to him. Eventually, his efforts helped create the GLBT-friendly psychiatry policy considered the norm in medicine today. Psychiatry might still be unchanged if Dr. Issay had been dismissed from his medical school for voicing opposition to the accepted standard that being gay was an unnatural disorder.

So, while these cases often generate charged emotions, that is why they're so important for the long-term protection of American speech rights. Whether you fall on Dr. Issay's or Jennifer Keeton's side of the fence, recall that the shoe may some day be on the other foot.