Jennifer Keeton v. Mary Jane Anderson-Wiley

BARKETT, Before PRYOR and KRAVITCH, Judges. Circuit BARKETT, Judge: Circuit Jennifer Keeton was enrolled in the Program Counselor Education at Augusta (ASU), University Georgia State a state school, seeking to obtain her master’s de- gree counseling. in school After Keeton completed year program, first officials participate ASU’s asked a remediation plan addressing what the perceived faculty as deficiencies in her “ability multiculturally to be a competent counselor, particularly regard with Shafer, Fund, Jeffrey Alliance Defense working lesbian, bisexual, gay, trans- DC, Barham, Washington, Travis C. David gender, queer/questioning (GLBTQ) Cortman, Fund, Andrew Alliance Defense populations.”1 ASU’s officials required Lawrenceville, GA, Stebbins, Charles C. Keeton’s consent to the remediation plan Warlick, Tritt, III, Murray, Stebbins & participate before Keeton could pro- LLP, GA, Augusta, Plaintiff-Appellant. for gram’s clinical practicum, in which she would have to counsel students one-on-one. Davidson, Meghan Robson Nall & Mil- completing Rather than LLP, Correia, ler, Samuel Cristina Scott plan, Keeton pursuant filed this action GA, Olens, Atlanta, Defendants-Appel- § alleging requiring U.S.C. lees. complete her to plan remediation vio- Jackson, Chara Fisher ACLU Founda- lated her First Amendment free Inc., Nevins, Georgia, Gregory tion of R. and free rights.2 Along exercise with her Legal Lambda Defense & Education complaint, verified Keeton also filed a mo- Fund, Inc., Atlanta, GA, Volokh, Eugene preliminary injunction tion for a CA, Jeruss, Angeles, Ellyn Los Sara prevent would ASU’s officials from dis- Simmons, Starcevich, Luann missing program Sarah O’Mel- her from the if she did LLP, Francisco, CA, veny Myers, & complete San plan. remediation After holding evidentiary for Amici Curiae. an hearing, the district it, plan plan The ASU student handbook authorizes ASU described a "a remediation is place officials to a student on "remediation professional part deal with the curicu- progress status” a when "student’s is not sat- goes program, goes lum that across across isfactory interpersonal professional cri- classes. It’s a that is devised with stu- performance.” teria unrelated to academic help grow pro- in order to dents students to a The student then receives remediation fessionally in areas of weakness.” “outlining faculty's concerns” and "deli- neat[ing] what conditions the student must 2. The defendants are ASU officials and mem- meet to be removed from remediation status.” Regents University bers of Board of not, however, A is disci- System Georgia. Instead, plinary measure. as one ASU official plaint, plan, the text of the remediation preliminary her motion for court denied between Keeton correspondence from this order injunction, and officials, declarations of several appeals.3 Keeton now officials, ASU students and and the testi- I. Standard Review mony of several ASU officials offered at an evidentiary hearing on Keeton’s motion may grant preliminary A court district injunction, a preliminary shows the follow- injunction only moving party when the ing. (1) a substantial likelihood demonstrates: merits; irrepara- of success on brief, In her Keeton describes herself as the in- injury will be suffered unless ble committed a who truth Christian is to the (3) issued; inju- the

junction is threatened Bible, including of the what she believes ry moving party outweighs to the whatever nature, teachings are its on human injunction damage proposed might life, purpose meaning and of and the ethi- non-moving party; if cause the and cal that govern standards human conduct. issued, injunction would not be adverse She holds several beliefs about homosexu- interest. BellSouth Telecom- public ality that she from arising views as munications, Inc. v. Access MCIMetro faith. Christian She believes that “sexual Services, LLC, Transmission 425 F.3d behavior is the of choice result Cir.2005). (11th accountable, for which individuals are not cases, a First Amendment we review forces; gen- inevitable deterministic that grant deny district court’s to or a decision (i.e., binary der fixed and male or fe- injunction preliminary unique under a male), a social construct or Questions of abuse discretion standard. of subject change; choice to individual and law are reviewed de novo. American Civil homosexuality ‘lifestyle,’ is a not a ” Florida, Liberties Union Inc. v. Mia- being.’ ‘state of ASU’s officials became Bd., Cnty. mi-Dade School 557 F.3d aware that Keeton held these when beliefs (11th Cir.2009) (“ACLU Florida"). expressed professors she to in class and The findings ordinary district court’s in fellow classmates and out of class that historical facts are reviewed clear er- GLBTQ she believed that the population ror, id. at but district court’s confusion, identity suffers from findings of “constitutional facts” are re- attempt she intended to to convert stu- novo, Ordinary viewed de id. at 1203. being dents from homosexual heterosex- “who, where, what, when, facts are the and ual. Keeton also said that it be would how of controversy.” Id. at 1206. In difficult for her to work with contrast, constitutional facts are the “cru- separate clients and to her views about cial” or “ultimate” facts determine homosexuality from her clients’ views. whether the defendant’s actions violated Further, in a answering hypothetical posed the First Amendment. 1205. faculty member, a responded Keeton high that as a school counselor confronted Background

II. crisis, by sophomore question- student in record, orientation, The stage ing which this of the his sexual she tell would proceedings of the okay gay. consists verified com- the student that it was not to be denying After district court denied her district court’s order her motion for a motion preliminary injunction, preliminary injunction, injunc- for a ex- Keeton was she seeks an ASU, pelled complete requiring as she refused to tiоn ASU's officials to reinstate her Now, plan. appealing program. in culture, age, disability, classmate Similarly, ethnicity, Keeton told fellow race, that, gay, religion/spirituahty, gender, gen- if a client discloses he is identity, orientation, her intention to tell the client his sexual der marital morally wrong try and then status/partnership, language preference, behavior is behavior, and if she change status, the client’s any pro- socioeconomic basis change the client his help were unable to by law.” scribed behavior, refer him to someone she would Before Keeton could participate practicing therapy. conversion program’s clinical practicum, which she that, through determined ASU’s officials have engaged would one-on-one counsel- statements, expressed these student, ing with ASU’s officials asked provisions intent to violate several participate her to in a remediation plan, (ACA) Counseling American Association’s help comply her learn how to with the Ethics, required which ASU was Code of Ethics improve ACA Code adopt and teach in order to offer а “ability multiculturally competent to be a counseling program by the accredited counselor, particularly with regard to Counseling for Council Accreditation of working [GLBTQ] with populations.” As (CA- Programs and Related Educational above, mentioned the ASU student hand- CREP).4 Among the sections of the ACA book imposition authorizes the of a remed- Code of Ethics that Keeton’s statements iation performance when a student’s indicated she would violate are: satisfactory interpersonal is “not or (1) primary respon- Section A.l.a: “The professional criteria unrelated to academic sibility respect of counselors is performance.” Similarly, the ACA Code dignity promote and to the welfare of requires of Ethics counselor educators to clients”; “address the inability of some students to (2) are Section A.4.b: “Counselors counseling competencies achieve values, attitudes, aware their own be- might impede performance.” In accor- liefs, imposing and behaviors and avoid dance guidelines, with CACREP the facul- values that are inconsistent with coun- ty every assesses student each semester to seling goals. respect Counselors the di- they having determine whether are diffi- clients, trainees,

versity of and research through culties that need to be addressed participants”; plan. a past, remediation remedia- (3) gain Section C.2.a: “Counselors tion have been drafted for plans students awareness, knowledge, personal sensitiv- difficulty writing who have had as- ity, pertinent and working skills with signments, “performing particu- the skills population”; a diverse client and counseling lar to a internship setting,” re- (4) ceiving Section C.5: “Counselors do not con- supervisors, feedback from their engage “working done or in discrimination based and with other multi-cultural Graduating by primarily counseling from a school accredited in content from an insti- Counseling regional Council for by body recog- Accreditation of tution accredited turn, Programs, Related Higher Educational is a nized the Council on Education Accreditation); requirement obtaining Higher a Professional Council for Education Georgia. Georgia Counselor license in See Accreditation Database of Institutions and Application Programs, http://www.chea.org/search/search. for Licensure as a Professional Counselor, (last 22, 2011) http://sos.georgia.gov/acrobat/PLB/ asp (recog- visited November nizing 20Coun- Council 41% 20Licensed% 20Professional% for Accreditation of Counsel- (last 20Application.pdf ing Programs visited Novem- and Related Educational as a selor% 22, 2011) Accreditor). (requiring degree Program ber a master’s parts the African-American Other ad- populations, like skills, writing dressed Keeton’s deficient Keeton’s remediation population.” parts but those are not at issue here. her to: required Based on Keeton’s written reflections and (1) workshops three attend at least faculty meetings, two scheduled would cross-cultur- emphasize improving which appropriateness “decide the of her continu- communication, multicul- developing al counseling program.” ation in the diversity sensitivity competence, tural training working toward with the meetings officials held several School GLBTQ population;5 with Keeton to discuss the remediation (2) articles in peer- read at least ten plan. Although testify Keeton did not counseling or рsychological reviewed evidentiary hearing, alleged she had journals pertain improving coun- complaint her verified officials told seling effectiveness with teacher, “you her that couldn’t be a let population;6 counselor, views,” alone with those asked exposure work to increase beliefs, alter some and said GLBTQ population interaction with the adhering that she had choice of instance, by, attending Gay Pride Bible or to the At ACA Code Ethics. Augusta;7 Parade in evidentiary hearing and declara- (4) familiarize herself with the Associa- tions, categorically the officials denied Lesbian, Gay, tion for Bisexual and making these statements and testified Transgender Counseling Issues never told her she needed to (“ALGBTIC”) Competencies for Coun- alter her beliefs or that her beliefs were Clients;8 seling Gays Transgender and unethical, wrong or and that she could and personal continue to maintain her religious two-page submit a reflection to her beliefs and still become an effective coun- every summarizing advisor month what selor. testimony, Consistent with this a research, she learned from her her summаry how handwritten of one of the meet- study beliefs, ings, has influenced her and which signed, Keeton made no men- may how future clients benefit from tion asking of ASU officials her to alter what she has learned.9 Additionally, her when Keeton beliefs. goal requirement, 5. required Gay The of this an ASU offi- ton not was to attend the Pride testified, Parade; cial develop was for Keeton to a just example activity it was one of an sensitivity understanding for and of the issues satisfy require- she could do that would facing GLBTQ population. ment. provided 6. ASU's officials Keeton with a list 8. ALGBTIC a certified division ACA. of articles from which she could ad- choose skills, Competencies "knowledge, are [and] dressing, among things, providing sup- other possess abilities” that counselors must in or- port reducing for and victimization of the effectively particular popu- der to work with a population GLBTQ settings. within school lation. purpose requirement, 7. The of this like the requirement imposed 9. This Kee- so that requirement, develop first was for Keeton to a faculty ton could demonstrate to the that she understanding sensitivity better of and developed sensitivity had for the GLBTQ population. requirement This is sim- population and "an assignment awareness of how her program’s ilar to an diver- class, may sity sensitivity training requires own beliefs differ from those of the client which expose impose population students to to a so that she not her beliefs on the themselves they may that not be comfortable with. Kee- client.” stating Keeton claims ASU’s officials violat- an to ASU’s officials wrote email ed her First Amendment free being asked she she was believed rights ways: by discriminating in three beliefs, they personal religious to alter her viewpoint; by retaliating against an responded with addendum exercising against First emphasizing that she was rights; finally by compel- Amendment and reli- alter her being asked ling express her to beliefs with which she beliefs, informing her that she gious and disagrees. specific We each claim address pro- from the have to be dismissed would in turn. the remedia- gram complete if she did not plan. tion Viewpoint Discrimination initially meetings, Keeton After analyze viewpoint To Keeton’s dis in the remediation agreed participate claim, engage crimination we must first that she and assured sсhool officials analysis, government’s power forum as the separate “learn to [her] would speech “depends to restrict on the nature from those of the client values and beliefs of the relevant forum” at issue. Cornelius any may attend to need so she Fund, Inc., Legal Educ. v. NAACP &Def. in an ethical manner.” future clients 788, 800, assurances, faculty Based these L.Ed.2d The enroll in the to allow Keeton to agreed categories has identified three of forums: while she practicum clinical program’s forums, public pub designated traditional plan. Soon completed forums, nonpublic lic forums. Bannon however, thereafter, changed her Cnty., v. Sch. Dist. Palm Beach an email mind and ‍​​​​​‌‌​​‌‌​‌‌‌​‌‌‌‌‌‌​​‌‌‌​‌​‌‌‌‌‌​‌​‌​‌‌​‌​‌​‌‍sent school officials (11th Cir.2004). F.3d withdrawing program from the stat- counseling program is not traditional going agree “I am not to remedia- ing, forum, public “possess as it does not all of already I know I won’t be tion streets, parks, the attributes of and other successfully complete.” Keeton able to public traditional forums that ‘time out of action, alleging that ASU’s then filed this mind, purposes have been used for of as First Amend- officials’ actiоns violated her sembly, communicating thoughts between ” rights. and free exercise speech ment free citizens, discussing public questions.’ and Kuhlmeier, v. 484

Hazelwood Sch. Dist. III. Discussion 260, 267, 562, 98 L.Ed.2d U.S. 108 S.Ct. (1988) CIO, (quoting Hague v. 307 U.S. 592 Speech A. Free Claims 515, 954, 496, 59 S.Ct. 83 L.Ed. 1423 colleges and universities (1939)). “[S]tate program Nor could the be consid sweep immune from the are not enclaves forum, there designated public ered a as is Healy v. of the First Amendment.” in record that “school no indication 2338, James, 169, 180, 92 S.Ct. 33 408 U.S. ‘by policy by practice’ authorities have or time, At the same L.Ed.2d 266 program] ‘for indiscriminate opened [the cases, however, “First speech in student general public,’ by some use in analyzed 267, must be rights public.” Amendment Id. at 108 segment of special (quoting Perry characteristics of Educ. Ass’n v. light S.Ct. 562 Vincent, 37, Ass’n, v. 460 U.S. Perry school environment.” Widmar Local Educators’ (1983)). 269, 263, 5, 47, 948, n. 102 S.Ct. 103 S.Ct. 74 L.Ed.2d 794 454 U.S. (1981) (internal Instead, it the in quotation ASU has reserved L.Ed.2d 440 omitted). learning purpose supervised tended of “a marks against religious view-

experience,” connected in this case and point viewpoint or was neutral. requirements professional of a association required is for the whose accreditation conсlude that the evidence in We degree to offer a allows its school support this record does not Keeton’s profession- as students to become licensed imposed claim that officials ASU’s 270, al counselors. Id. at 108 S.Ct. 562. plan remediation because of her views on counseling pro- find that We thus ASU’s Rather, homosexuality. as district nonpublic forum. See gram constitutes found, court the evidence shows that the Aronov, 1066, 1071 Bishop v. 926 F.2d plan imposed was because she Cir.1991) (11th (holding university that a expressed impose an intent to during is a not “an forum open classroom clients, in religious views on her violation time”). such, instructional As school offi- Ethics, ACA Code of “may impose restrictions on cials objective of plan the remediation was to viewpoint that are reasonable and neu- effectively teach her how to counsel Summum, City tral.” Pleasant Grove clients accordance with the ACA Code Ethics. (2009). Accordingly, L.Ed.2d 853 we must testify As Keeton did not at the eviden- questions analyzing ask two Keeton’s tiary hearing, primarily she relies on the (1) viewpoint discrimination claim: wheth- allegations complaint her verified plan er the remediation awas reasonable certain statements made the remedia- speech; restriction on her and whether plan tion and the addendum to the remedi- viewpoint neu- ation support par- her claims. In tral. ticular, points allegations she to her neutrality during We first consider the ASU’s officials told her the remedi- question. general, ation plan meetings “[discrimination that she needed to against speech However, message because of its is alter her beliefs. the evidence presumed overwhelmingly to be unconstitutional.” Rosen shows that ASU’s officials berger University v. Rector and asking change Visitors were not her to her beliefs. 819, 828, instance, Virginia, 515 For U.S. Keeton’s fellow students (1995). Thus, 132 L.Ed.2d 700 if stated in professors declarations that told imposed ASU’s officials the remediation Keeton in class she did not need to beliefs, because of personal religious change Keeton’s but instead needed to homosexuality, views on presumed impose be aware of her beliefs and not Likewise, that they rights. violated her constitutional them on the client. offi- The crucial or ultimate fаct that will deter cials testified that Keeton could still hold mine viewpoint personal religious Keeton’s discrimination her beliefs and become claim, then, impos is ASU’s motivation for an effective long sepa- counselor as as she ing work, the plan, making remediation it a con rated those beliefs and that Florida, stitutional fact. holding See ACLU 557 students the same beliefs as Kee- (holding F.3d at 1206-07 that a school ton in program. have been successful Further, board’s motive for banning book from officials wrote in the ASU’s ad- library the school was a constitutional dendum to the plan remediation that “the fact). Accordingly, we must examine the intent of the plan remediation is not neces- entire sarily your record as whole to determine to alter about views sexual orientation, imposition whether any your ASU’s remedia or about other evidence, plan personal tion was intended to discriminate beliefs.” Given this finding teaching people, not err in that is true for all district court did right were insufficient to allegations way Keeton’s shows to live.” In the sought email, that officials to alter prove you June 16 indicаted “I believe teachings applies her beliefs. all peo- Bible’s to ple they on who are and how should points following also lan- act ... From I that see that some from the remediation chroni- guage positive.” behaviors are not moral or homosexuality her beliefs to cling about im- While these statements do refer to argue that the remediation was Kee- beliefs, they ton’s posed regarding because of her beliefs ho- also make clear that the primary school’s mosexuality: “ability concern was her to a multiculturally competent be counsel- equally important Another question or” and “ability to maintain ethical the last semes- has arisen over two in counseling behavior all situations.” ability to a multicultural- ters is Jen’s be Moreover, evidentiary hearing, counselor, ly competent particularly with ASU’s officials pri- confirmed their [GLBTQ] regard working popu- with mary concern teaching was Keeton not to in disagreement lations. Jen has voiced impose her values on clients and how to in several class discussions and written Also, become a more effective сounselor. assignments gay and lesbian in the addendum to plan, “lifestyle.” paper She stated one which was added in direct response to GLBTQ “lifestyles” to be she believes Keeton’s email claim that she believed she identity during confusion. This was being asked to alter her reli- Diversity Sensitivity enrollment beliefs, gious ASU’s officials clarified that presentation after the course and content of your religious moral or “[t]he GLBTQ populations. Faculty have also in question,” beliefs is not and that reports from anoth- received unsolicited remediation was concerned with relayed has her in- er student she teaching respond her how “to an ethical therapy terest in conversion your manner and avoid imposing populations, and she has tried to con- Likewise, values on the client.” the hand- support other vince students and be- summary written meetings, of one of the lieve her views. which pres- Keeton and the ASU officials additionally she refers to the And follow- ent signed, stated that: ing language from the addendum to the seems to understand faculty’s Jen plan: concern about the ethical violation of your ability Cоncerns related to imposing one’s on a .... values client maintain ethical in all behavior counsel- now, Right Jen cannot affirm and attend in- ing through faculty situations arose relationship gay issues of and lesbian classes, you during pa- teractions with .... persons classes, pers by you written behaviors toward and comments to fel- These concerns arose from Keeton’s own your All of impose low students classes. statements she intended to personal religious these incidents were described in the beliefs on clients therapy, Remediation Plan. Statements made in and refer clients to conversion your have that it recent emails confirmed the and her own admissions would be GLBTQ In faculty’s concern. the June email difficult for her to work with the you “My population separate said Christian moral views are and her own views just light not about me. I think the Bible’s from those of the client. of this

evidence, topic activity or forms of that the mere references to Keeton’s were plan Rosenberger, in and the suppressed. beliefs the remediation See U.S. 829-31, Indeed, do not to the remediation addendum 115 S.Ct. 2510. offiсials support her contention that ASU’s express disagreement remains free to with because of imposed the remediation require- curriculum and the ethical ASU’s Rather, homosexuality. her beliefs about ACA, ments of the but she cannot block that, requiring evidence shows Kee- the attempts the school’s to ensure that she and interact ton to learn about by if participate abides them she wishes to GLBTQ to read articles population, in in practicum, the clinical which involves journals counseling psychological or about counseling, graduate one-on-one and from GLBTQ and to counseling population, the program. become familiar with the ALGBTIC Com- sure, out, points To be as Keeton petencies Counseling Gays for and Trans- plan, requiring spend her to clients, gender sought ASU’s officials reading attending time articles and events effectively teach her how to counsel workshops, place does a burden on her clients accordance with that other students who do not intend to

ACA Code of Ethics. express personal religious them beliefs to graduate program, all studеnts in the As clients do not have. But it does not follow beliefs, regardless of their must against this constitutes discrimination counsel clients in accordance with the ACA regarding homosexuality. Keeton’s views counseling of ‍​​​​​‌‌​​‌‌​‌‌‌​‌‌‌‌‌‌​​‌‌‌​‌​‌‌‌‌‌​‌​‌​‌‌​‌​‌​‌‍Ethics and cur- Code ASU’s As Court held in Christian riculum, did not sin- Legal Society Chapter University gle out Keeton for disfavored treatment California, Hastings College the Law v. point because of her of view. All students — Martinez, -, U.S. 130 S.Ct. taught princi- are the ACA’s fundamental (“CLS ”), 177 L.Ed.2d 838 when ples, including sup- that counselors must policy reviewed a school’s “all-comers” welfare, port promote their clients’ their required a group accept student mem- growth, respect dignity, support their their organization’s bers who did not share the autonomy, and them help pursue their own religion core beliefs about and sexual or- Further, goals counseling. ASU’s cur- ientation, if regulation has a dif- “[e]ven riculum requires that all students be com- ferential impact groups wishing to [ex- petent populations, to work with all views], press discriminatory ‘[w]here impose that all students their target does not conduct [State] on the clients, whether, religious values on their content, expressive basis of its acts are not instance, persons believe that regulation merely shielded because ought to be rather than Christians Mus- they express a discriminatory phi- idea or lims, atheists, Jews or or that homosexual- ” losophy.’ (quoting Id. R.A.V. v. ity such, is moral or immoral. As ASU’s Paul, 377, 390, St. curriculum and generally applicable (1992)). require- 120 L.Ed.2d 305 rules of ethical conduct of the profession impose ment that counselors not their val- designed suppress are not ideas or view- clients, ues on as mandated points apply all ACA regardless but of the “ Ethics, justified Code of ‘is without refer- particular viewpoint may the counselor Thus, possess. viewpoint] unlike ence to the content [or the cases Keeton ” upon, regulated speech.’ (quoting relies not a this is case which a Ward Racism, 781, 791, opened topic Against forum was to a Rock particular U.S. (1989)). activity expressive and disfavored views on 109 S.Ct. 105 L.Ed.2d 661 style aims at Keeton’s un control over the and content of stu- plan The remediation comply school-sponsored expres- with the ACA Code dent willingness desire to have its stu long Ethics. ASU’s sive activities so as their actions are of Eth comply with the ACA Code reasonably legitimate dents related to pedagogi- in a ics, places those students 273, when cal concerns.” Id. at 108 S.Ct. 562. with actual clients who practicum clinical “school-sponsored The Court defined ex- actual harm from a counsel- might suffer pressive activities” to include “school- “ actions, expla an ‘provides adequate or’s sponsored publications, produc- theatrical plan] for its over and [remediation nation tions, expressive and other activities that disagreement [Keeton’s] above mere with students, parents, and members of the ” (quoting Id. Wiscon beliefs biases.’ reasonably public might perceive to bear 488, 113 Mitchell, 476, sin v. 508 U.S. 271, imprimatur of the school.” Id. at (1993)). 2194, 124 Like the L.Ed.2d 436 activities, 108 S.Ct. 562. Such the Court CLS, plaintiffs in Keeton confuses explained, “may fairly be characterized as objections to ASU’s offi viewpoint-based part of the curriculum ... long school so discrimination. viewpoint cials’ actions with they supervised by faculty as are mem- Id. designed bers and to impart particular imposition that the Having concluded knowlеdge participants or skills to student viewpoint neu- and audiences.” Id. tral, we must now consider whether the analysis Hazelwood informs our for two placed that ASU’s officials on Kee- burden First, practicum, reasons. the clinical rights Amendment was reason- ton’s First in, participate which Keeton seeks to is a able, special in mind “the charac- keeping “school-sponsored expressive activit[y],” as environment.” teristics school counseling pro- those who receive in the Widmar, 5, at 268 n. 102 S.Ct. 454 U.S. gram general and members of the public (internal omitted). quotation marks “might reasonably perceive bear the [it] faced a sim- Supreme The Court was imprimatur of the school.” Id. And sec- question ilar Hazelwood School District ond, and the clini- Kuhlmeier, 108 S.Ct. practicum “part cal are of the school cur- Hazelwood, 98 L.Ed.2d 592 “supervised by faculty riculum” and are high-school officials Court concluded designed impart particu- members and not violate the First Amendment did knowledge lar or skills to Id. [Keeton].” pages when deleted two of articles Thus, significant underlying concern Ha- jour- written and edited students in a that cоurts zelwood—the deference must newspaper. from the nalism class school’s choices, show to a school’s curricular id. 262-64, so, doing 562. In 108 S.Ct. here, applies enjoin- as first the school the Court noted 562— ing imposing ASU from its remediation forum, newspaper public was not a be- Keeton, forcing ASU allow newspa- cause the school had reserved the participate practi- Keeton to in the clinical per purpose, super- for its intended “a cum, would interfere with ASU’s control learning experience journalism vised The over its curriculum. students.” Id. at 108 S.Ct. 562. As such, and this Court have voiced this concern on regulate the school was “entitled to See, CLS, e.g., occasions. any numerous newspaper] [the the contents of (“[W]e S.Ct. at 2988 have cautioned courts reasonable manner.” Id. The Court then ‘substitut[ing] in various contexts to resist held that “educators do not offend the by exercising pol- First Amendment editorial their own notions of sound educational 876 Principals, A Primer Edu- authorities Youth: those of the school icy for cators, Personnel, (2008), review.’”) and School (quoting Board they

which http://www.apa.org/рi/lgbt/ School available Hendrick Hudson Central Ed. of 176, 206, resources/just-the-facts.aspx. Keeton indi- Rowley, 458 U.S. Dist. (1982)); 3034, impose Re- cated that she would L.Ed.2d 690 GLBTQ and re- Ewing, religious views on clients University Michigan v. gents of 507, practice 88 fer such clients to counselors who 106 S.Ct. U.S. (“When in judges therapy, are conversion violation of the ACA L.Ed.2d 523 contrary to genu- of a Code of Ethics and what the substance asked to review an recognize and clinical literature as ... should ACA inely academic decision counseling practice. effective The remedi- faculty’s profes- for the great respect show concerns, seeking plan targeted ation these judgment.”); Bishop, 926 F.2d sional (“Federal improve ability Keeton’s to counsel judges should not be ersatz to educators.”).10 in clients accordance with the or deans Ethics, notwithstanding ACA Code ac- Turning to whether ASU’s officials’ beliefs, and thus it was reason- under the Hazel- tions were reasonable ably legitimate pedagogi- related to ASU’s framework, wood we find ASU has in promoting compliance cal concerns teaching concern in legitimate pedagogical teaching the ACA Code of Ethics and comply its with the ACA Code students an effective Accord- to become counselor. adopt must and follow the Ethics. ASU ingly, imposition of the remediation in offer an ACA Code of Ethics order to plan was reasonable restriction on Kee- and the entire mission program, accredited speech. ton’s counseling program produce of its is to key in accor- A final and consideration with re- ethical and effective counselors viewpoint discrimination professional requirements spect dance with the Keeton’s ACA, Moreover, in clinical practicum of the ACA. addi- claim is the role that the professional organiza- plays tion to several other the curriculum. Rust v. Sulli- tions, van, 1759, 114 including Psychology the American Association, (1991), promotion holds that in L.Ed.2d 233 “[t]he can, change schools of efforts to sexual orienta- held that Government without “[t]he Constitution, by therapy through religious violating selectively tion minis- fund likely program encourage tries seems to exacerbate the risk of certain activities it harassment, harm, interest, [GLBTQ] public fear for believеs to be with- Coalition, youth.” funding Just the Facts Just the out at the same time an alterna- program Facts About Sexual tive which seeks to deal with the Orientation imprimatur peda- 10. The Tenth Circuit has decided a similar bear a school’s and involve Johnson, case, Axson-Flynn v. 356 F.3d 1277 gogical significantly interests more than Cir.2004), (10th under frame- setting Hazelwood's speech that within a occurs classroom case, work. In that a Mormon student who curriculum,” part as of a school’s the Tenth university program enrolled in a drama applied Circuit framework Hazelwood’s refused, reasons, religious profanity to use (internal quota- student's claims. Id. at 1289 exercises, during acting classroom and as a omitted). tion marks Like the activities at faculty's repeated result of the demands to Axson-Flynn, issue in Keeton's “get profanity use in a over” her refusal to counseling students would have occurred in play, program. left the Id. at 1280-81. The permitted practicum had Keeton been requiring student claimed that her to utter it, part participate of ASU’s which was profanity violated her First Amendment curriculum. rights. Reasoning activities "[f]ew Id. conduct.” professional in intruded into way.” program in another The problem Relying the establishment on a series of Rust sought promote projects. family planning concerning government’s power, cases the operation end, 178, it Id. at 1759. To this employer, speech S.Ct. as an to limit the of its family in engaged that funded entities employees employee speaks when the on a counseling, prohibited but fund concern, planning private matter of which is what abortion- giving patients from recipients an employee pro- we found occurs when 177-78, at 111 S.Ct. related advice. “private single patient counsel to a vides similar practicum ASU’s clinical is a counseling within the confines of ses- Rust, in as it seeks to program to the sion,” rejected we claim that the Watts’s that it be- promote counseling “activities school’s actions violated his First Amend- Id. at in public lieves to be the interest.” Id. at 1293-94. speech rights. ment free 193, 1759. The defined limits of 111 S.Ct. Watts essentially is what this case would practicum require clinical students to the have been had officials’ concerns counseling in accordance with provide arose from Keetоn’s conduct while she was which, Ethics, among other ACA Code of participating practicum, in the rather than imposing counselors from things, prohibits beforehand. But this difference does not gov- the their values on clients. Just as here, Watts’ applicability limit s as the Su- in Rust was free to prohibit its ernment it preme Court has held that is not neces- in activities outside agents engaging “from sary government, employer, for the as an 194, 111 scope,” id. project’s “to allow events to unfold extent 1759, prohibit its stu- so ASU was free disruption program] [to engaging counseling from in activi- dents action.” Connick v. taking manifest before advice, ties, providing moral such as Myers, scope the defined of the clinical lie outside Keeton, 75 L.Ed.2d 708 Because not have a consti- practicum. Keeton does Watts, effectively like would have been the right disregard tutional the limits ASU employee school’s in the clinical practicum, clinical practicum has for its established Watts uphold- for provides support further counseling for and set her own standards ing prohibit ASU’s officials’ decision to practicum. clients ‍​​​​​‌‌​​‌‌​‌‌‌​‌‌‌‌‌‌​​‌‌‌​‌​‌‌‌‌‌​‌​‌​‌‌​‌​‌​‌‍in the clinical participаting in the clinical Court, too, recognized gov- Our has practicum completed unless she power regulate speech ernment’s thereby demonstrat- in places counseling pro- those it its own “personal ed that she would not allow v. Florida International gram. Watts profes- boundaries into [to] intrude[ ] [her] (11th Cir.2007), University, 495 F.3d 1289 Watts, conduct,” sional 495 F.3d at in university required a state students as the ACA Code of Ethics and ASU’s program partici- its Master of Work Social require. curriculum much like pate counseling practicum patient recommended to a ASU’s. Watts 2. Retaliation patient join in the practicum that, argues by impos Keeton next Id. group at a church. bereavement ing on her re 1292. The school terminated Watts recommendation, sponse regarding to her statements stating making this personal religious beliefs and her intent to “inappropriate be- engaged Watts had clients, those beliefs on ASU’s offi impose patients, regarding havior related to reli- against exercising “the such cials retaliated gion,” and that was second rights. speech boundaries have her First Amendment free incident where violating struсk down the scheme as a First Amendment retalia- To establish official, Amendment, “first, holding that “no claim, First plaintiff tion must show high petty, prescribe can what shall be constitutionally or act that his nationalism, second, politics, religion, orthodox re- that the defendant’s protected; opinion or other matters of citi- or force adversely affected the taliatory conduct by zens to confess word or act their faith third, that there is protected speech; and 642, therein.” Id. 63 S.Ct. 1178. retaliatory the a causal connection between speech.” and the adverse effect on actions progeny inap- find Barnette and its We 1247, Hendrix, 428 F.3d 1250 Bennett First, plicable here for several reasons. Cir.2005). (11th “In order to establish a Barnette, plaintiff the Keeton unlike connection, plaintiff must show causal ASU, may not to attend and indeed choose subjectively was moti- the defendant may a different career. The Court choose to take the adverse action of vated because distinguished in Barnette an earlier case protected speech.” Appala- Castle v. ground, stating: on this 1194, Cоllege, chian Technical 631 F.3d by prejudiced This issue is not (11th Cir.2011). previous holding Court’s that where a State, attendance, compelling without section, explained prior As college pupils extends facilities to who im the record shows that ASU’s officials enroll, voluntarily may prescribe mili- posed plan, not because tary training part as of the course with- expressed personal religious she views out offense to the Constitution. It was regarding homosexuality, but because she held that those who take of advantage unwilling comply to with the ACA opportunities may ground its not on That this unwillingness Code Ethics. to compliance conscience refuse with such abide curriculum and chosen Regents, conditions. Hamilton v. profession’s initially ethical standards be 197, U.S. 245 79 L.Ed. [55 343] came apparent through writings (1934). present In the case attendance class discussions does not cloak it First not optional. is protection. Amendment Likewise, 631-32. ASU has condi- Compelled Speech participation tioned in the practi- clinical graduation compliance cum and Finally, Keeton claims that ASU’s offi- Ethics, Keeton, thе ACA Code of hav- sought unconstitutionally compel cials to ing voluntarily program, enrolled in the express her to beliefs with which she dis- right does not have a constitutional agrees. principally The case Keeton relies comply refuse to with those conditions. upon Virginia for this claim is West State Barnette, inapplicable Board Education v. Another reason is U.S. Barnette 624, forcing pro- 87 L.Ed. 1628 is that is not ASU Barnette, required contrary the state that all fess a belief to her own Rather, in public compelling students schools salute and beliefs. it is her to Ethics, pledge allegiance flag. comply Id. at with the ACA Code of Noncompliance requires 63 S.Ct. 1178. resulted in which those who wish to be coun- expulsion, separate the student’s which then ex- selors to their beliefs posed their a delinquency proceed- student to work. When client asks, moral, ings and to criminal if parents example, the student’s his conduct is fine, advice, prosecution, jail taught giving and a term. Id. at students are to avoid client, explore 63 S.Ct. 1178. The the issue with the and to (9th Cir.2002) J.) (Garber, the client determine for himself what F.3d help (“[CJonsistent answer is for him. If a client deter- with the First Amend moral, for himself that his conduct is ment!,] mines may require teacher a student to requires of Ethics the coun- the ACA Code a paper particular write from a viewpoint, client, selor to affirm the which means if it viewpoint even is a with which the respect dignity the counselor must disagrees, long student so the require as by accepting client the client’s re- legitimate ment serves a pedagogical pur judgment, not sponse without doubt, pose.”). No a law school would be say personally counselor must that she permitted require student who ex Thus, that the client correct. believes an pressed intent to indiscriminately dis a compelling profess far from Keeton to close her client’s secrets or violate another change belief or her own beliefs about the of the state’s bar rules to take extra ethics morality homosexuality, of ASU instructs letting classes before partici the student express her not to her beliefs pate in a school-run clinic in which the regarding the client’s moral values. This student would be representing actual is the form of treatment that ASU and actions, сlients. These like ASU’s officials’ promotes have determined ACA best client imposition of the plan, are the welfare, which, view, objec- in their is the types of academic decisions that are sub tive of secular counseling. Just as a medi- ject deference, significant to not exacting cal school permitted would be to bar a scrutiny. constitutional Ewing, See 474 student who refused to administer blood 225-26, 106 U.S. S.Ct. 507. religious transfusions reasons from reasons, For the foregoing we conclude rotations, participating in clinical so ASU that Keeton has not demonstrated a sub- may prohibit Keeton participating stantial prevail likelihood that she will clinical practicum its if she refuses to ad- speech the merits of her free claims. minister treatment it ap- has deemed propriate. Every profession has its own B. Free Exercise Claims ethical codes and dictates. When someone voluntarily profession, chooses to enter a Keeton also claims that ASU’s offi comply he or she must with its rules and cials’ actions violated right to the free requirements. Lawyers ethical pres- must exercise of religion. “[T]he threshold legal arguments ent on behalf of their questions in a analyzing challenged law clients, notwithstanding their (1) under the Free Exercise Clause are is law, Judges apply views. must even neutral, the law is the law of they disagree when with it. So too coun- general applicability?” First Assembly of selors must refrain from imposing their Florida, Naples, God Inc. v. Collier religious moral and values on their clients. (11th Fla., 419, Cnty., 20 F.3d 423 Cir. 1994). neutrality The inquiry asks wheth

Finally, hardly Court has object er “the of a law is infringe upon to indicated an limit intention to a school’s practices or restrict because of their reli power require to its students to demon- gious motivation.” Church grasp particular strate whether a Lukumi les- must, instance, Aye, Hialeah, City A Babalu Inc. v. son. school be free 508 520, 533, give U.S. failing grade a to a student who L.Ed.2d question general refuses to answer a test The applicability for reli- reasons, gious prong or who asks government refuses to write a whether the has paper defending position a “in a impose[d] with which the selective manner burdens Li, disagrees. student Brown v. only by See on conduct religious motivated be- ly legitimate law relаted to interest 113 S.Ct. 2217. “[A] lief.” Id. offering counseling program. an accredited general applicability neutral and of that is Thus, gov unlikely prevail Keeton is on the justified compelling not be need claim that violated her even if the law has the merits ASU ernmental interest by requiring burdening particular rights free exercise incidental effect of comply with the Code of Ethics. religious practice.” Id. at ACA Rather, only it needs to survive IV. Conclusion review, see Combs v. Ho rational basis Dist., 540 F.3d mer-Center School satisfy Because Keeton failed to the first (3d Cir.2008), 242-43 under which the requirement preliminary injunction— for a and the burden is presumed constitutional establishing a substantial likelihood of suc- plaintiff prove on the it is not respect cess on the merits —with to her rationally legitimate govern claims, related to a free and free exercise interest, Egleston, ment Deen v. 597 F.3d court district did abuse its discretion (11th Cir.2010). 1223, 1230-31 denying preliminary in- her motion for junction. many previous- For of the same reasons discussed, ly we conclude that ASU’s cur- AFFIRMED. requirement comply ricular that students PRYOR, Judge, concurring: Circuit Ethics,

with the ACA Code of from which follows, plan the remediation is neutral full, in join panel opinion I but write generally applicable. Nothing and in the separately explain to a few additional object record indicates that the of the cur- points about appeal. the context of this requirement infringe upon ricular is to The record before us contains some iso practices religious restrict because of their Augusta lated evidence that officials of motivation; rather, the evidence shows University initially State intended to en that, reasons, among adopted other ASU gage viewpoint against discrimination the ACA Code of Ethics to offer an ac- Rosenberger Jennifer Keeton. See v. Rec credited program. Nor does the evidence of Va., tor & Visitors Univ. indicate that the curricular applies ASU 2510, 2516, 132 L.Ed.2d requirement in a selective manner that In the initial remediation only burdens conduct motivated reli- document, Augusta State identified three belief; rather, gious requirement ap- viewpoints university that disfavors: plies equally pro- to all students in the (1) disagreement Keeton “voiced in several gram. general It practice сlass and in assign discussions written plans target ‍​​​​​‌‌​​‌‌​‌‌‌​‌‌‌‌‌‌​​‌‌‌​‌​‌‌‌‌‌​‌​‌​‌‌​‌​‌​‌‍craft remediation that a stu- ”; gay ‘lifestyle’ ments with the and lesbian weakness, particular dent’s curricular as it (2) paper Keeton “stated one that she did In seeking here. to evade the curricu- GLBTQ lifestyles identity believes to be requirement impose lar not she confusion”; “relayed clients, moral looking values on Keeton is GLBTQ therapy interest conversion preferential, equal, treatment. See populations, and she ... tried to convince CLS, 130 S.Ct. at 2995 n. 27. support other students to and believe her requirement Augusta As the curricular that stu- explained views.” State also comply why dents with the ACA Code of Ethics the initial remediation document generally applicable, is neutral and it Keeton’s statements conflict uni- with the only versity’s preferred viewpoints. Augusta needs to survive rational basis review. test, easily It satisfies this as it is rational- State asserted that Keeton’s “statements are in direct conflict with the initial and actions These documents did not expressly codes of ethics which counselors and tie Augusta the concerns of officials of counselors-in-training requirеd are to ad- participation State Keeton’s in a clinical maintained that Augusta here.” State program. psychological “the research about record, whole, But the as a establishes populations asserts that sexual orientation the district court did not abuse its choice, lifestyle or is not a but ‘state of ” discretion when denied Keeton’s motion being.’ Augusta explained State preliminary injunction. for a At this in psychological peer-reviewed “research stage, supports the record finding

journals ... reveals that conversion thera- Augusta imposed State py changing is ineffective in individu- [an] prevent Keeton from violating al’s sexual orientation from same-sex at- rules of program. the clinical Immediately opposite-sex tractions to attractiveness.” after Keeton refused to adhere to the Augusta State concluded that Keeton’s plan, Augusta State refused to may “lack of awareness of how her beliefs allow Keeton to enroll in that negatively impact program. future of great clients is Augusta State Augusta explained concern.” State also did not demand that Keeton professors that Keeton stated to change she her beliefs or refrain from all ex- held the disfavored that other people belief pression of those beliefs. share her moral religious should val- Augusta State authority has the to re-

ues: quire all students enrolled in its clinical your Statements made in recent emails practicum, which involves one-on-one in- faculty’s have confirmed the concern. counselees, teraction with actual to adhere you In the June 14 email “My said In Watts v. Florida to a code of ethics. just moral Christian views are not about International University, 495 F.3d teaching me. I think the Bible’s is true (11th Cir.2007), 1291-94 we ruled that a people, for all it right way and shows the public university could terminate a gradu- email, to live.” In the 14 you June portion ate student from the clinical of a indicated “I believe the teachings Bible’s social work program when the student of- applies to all people they on who [sic] a patient religion, fered advice about are and how should act ... violation of the rules governing pro- the that I see that some behаviors are not gram. The main distinction between positive.” moral or Watts and Keeton’s appeal is that the stu- These you statements indicate that think dent Watts already enrolled in the people certain should act in accordance program clinical engaged when he values, your moral your that and/or speech university that the imper- deemed way beliefs are in some superior to [sic] missible, but this distinction is immaterial you to those of others. The belief that as a matter of law in the context of this a possess special knowledge about the appeal. expresses When a student way people that other should live their intent to violate state-spon- the rules of a lives, adopt others need to a program, university sored clinical the may similar set of values contradicts the core require provide her to reasonable assur- principles Counseling of the American comply require- ances she will with its Association and American School Coun- Ethics, university ments permits before the selor Association Codes of which participate student in the clinical responsibilities pro- define roles and professional gram. counselors. Supreme a The decision of the public have never ruled that

But we Kuhlmeier, student District v. university against can discriminate Hazelwood School 260, 108 concern that the stu- on the 98 L.Ed.2d speech based Hazelwood, variety (1988), of other circum- might, in a dent is instructive. stances, views at odds with express public Court determined that university. viewpoints of preferred may regulate school-sponsored schools reject re- roundly prior precedents Our students, speech parents, and mem setting. As public in the school straints public might reasonably per of the bers forty years ago, wrote over Judge Wisdom imprimatur ceive to bear the of the school student ex- upon the restriction ‘Wben regulation reasonably when the is related attempt of an pression takes the form legitimate pedagogical concerns. 484 the content and conse- predict in advance 271-73, U.S. at 108 S.Ct. at 570-71. Ha it tanta- quences expression, of that suggest Augusta zelwood does not prior restraint and carries a mount to against can disсriminate State Keeton’s heavy presumption against its constitution- speech someday it will confer a because Chapter ality.” Univ. S. Miss. degree upon her. Nor does Hazelwood Liberties Union v. Univ. S. Miss. Civil university permit public to retaliate (5th Cir.1971). Miss., 452 F.2d against student speech whenever occurs ago, prevailing A decades view few in a And classroom. Hazelwood does psychiatric profession maintained against allow retaliation disfavored homosexuality mental was a treatable that occurs outside the classroom. Psychiatric American Asso- disorder. See Although have concluded that Hazel- we ciation, Diagnostic and Manual Statistical public university wood allows a to “limit in- (2d 1968). of Mental Disorders ed. As this expressions suggest school which plain, prevailing record makes view Aronov, approval,” Bishop school’s changed. psychiatric This shift in ortho- (11th Cir.1991), F.2d we have doxy largely profession- occurred because pub- never held that permits Hazelwood taught als who had been that homosexuali- university punish expres- lic a student’s mind, ty was a disease of the but who opinion speech sions of when the is not view, rejected argued successfully that school-sponsored suggest or does not psychiatric diagnostic criteria approval. school’s Alito As Justice ob- should be amended. See Herb Kutchins & Circuit, serving served while on the Third Kirk, Making Crazy Stuart A. Us 55-77 “Things express that students class (1997) (describing professional efforts to in assignments upon when called to ex- homosexuality remove aas mental disor- press their own views do not bear the DSM-II)- change der from the This school, imprimatur rep- and do not opinion longer would have taken much if speech.” resent the school’s own C.H. ex public had expel universities been able to (3d Oliva, 198, rel. Z.H. v. 226 F.3d 214 rejected prevailing students who view Cir.2000) (internal J., (Alito, dissenting) argue homosexuality and intended to omitted). quotation marks and citations was not mental disease. As the First proposition “The that schools do not en- protected professionals Amendment everything they dorse fail to censor is successfully against who advocated (internal complicated.” quotation not then-prevailing psychiatric pro- view of the omitted). fession, Permitting marks and citаtion protect so too does it regulation should to advocate that those broad of student would she decide professionals got wrong. fundamentally be odds with the Su-

883 college that “the command preme Court’s Anthony ASH, al., Plaintiffs, et surrounding with its environs

classroom of marketplace ideas[.]” peculiarly James, 169, 180, Hithon, Plaintiff-Appellant- 92 S.Ct.

Healy v. 408 U.S. John (1972). 2338, 2346, Cross-Appellee, 33 L.Ed.2d 266 We First keep “[t]he must in mind v. Amendment ... does not tolerate laws orthodoxy pall that cast a of over the FOODS, INC., corporation, TYSON Keyishian Regents classroom.” v. Bd. of Defendant-Appellee-Cross- 589, of N.Y., ‍​​​​​‌‌​​‌‌​‌‌‌​‌‌‌‌‌‌​​‌‌‌​‌​‌‌‌‌‌​‌​‌​‌‌​‌​‌​‌‍Univ. the State 385 U.S. of Appellant, 675, 683, 603, 87 S.Ct. L.Ed.2d Hatley, individual, Thomas an Although federal courts owe no defer Defendant. considering ence to universities when No. 08-16135. university public

whether a has exceeded constraints, Legal constitutional Christian United Appeals, States Court of Hastings Cal., Soc’y Chapter Univ. Eleventh Circuit. — Martinez, v. ll. Law Co 2971, -, 2987, 177 U.S. 130 S.Ct. Dec. (2010), may act L.Ed.2d 838 we as

“ersatz deans or educators” second- regular academic methods of a

guessing university. Bishop, 926 F.2d at 1075.

public

“Cognizant judges lack the on-the-

ground expertise experience of school ... [the

administrators cautioned courts in various contexts to

has] ‘substitut[ing]

resist their own notions of policy

sound educational for those of the authorities which review.’”

school

Martinez, (quoting Bd. of Dist.,

Ed. Hendrick Hudson Cent. Sch. Of Cty. Rowley,

Westchester (1982)). In mat programs,

ters of instruction and academic judges

federal must instead exercise re Regents straint. the Univ. Mich. 214, 225-26, 106

Ewing, 474 U.S. (“Consider

513-14, L.Ed.2d profound importance

ations of counsel re judicial

strained review of the substance of decisions.”).

academic

Case Details

Case Name: Jennifer Keeton v. Mary Jane Anderson-Wiley

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Dec 16, 2011

Citation: 664 F.3d 865

Docket Number: 10-13925

Court Abbreviation: 11th Cir.