Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktThe Sixth Circuit recently heard oral arguments on an interesting “free exercise” case. However, the case also addresses free speech issues and the role of counselor among other thought provoking issues. As a liberal lawyer who was raised in an evangelical home and is now a practicing Catholic (there’s a joke in there somewhere) and since I know one of the lawyers involved in the case, I find the case very interesting. The basic facts are that a student, Julea Ward, enrolled in the counseling program at Eastern Michigan University and subsequently refused to talk with patients about their homosexual feelings. Ms. Ward was dismissed from the program and subsequently sued the University. The District Court granted Summary Judgment to the University, and Ward filed an appeal with the 6th Circuit who heard oral arguments in early October. A decision is expected some time in November.
Not to wade too deeply into the factual weeds, but the University’s program is accredited by the American Counseling Association and must follow the ACA’s Code of Ethics. It is this Code of Ethics that Ms. Ward was accused of violating and which led to her dismissal. There are programs that aren’t accredited by the ACA where Ms. Ward could have attended and possibly avoided this conflict. However, since she hired an attorney 3 years before she was kicked out of the program, it seems that she was probably actively seeking out this fight. To be fair to Ms. Ward, there is literature that supports the notion that it is appropriate to refer clients to another counselor where your personal beliefs may cause a conflict. So it does seem that the ACA and the University’s position on the Code of Ethics is not without it’s holes.
I have a hard time seeing this as a violation of the free exercise clause, or any other Constitutional right for that matter. As the District Court pointed out, this was a narrowly constructed rule that applied only to counseling students and only when they are speaking with a client. It also seems aimed at preventing clients from feeling judged by their counselor.
An interesting side note to this is that the Michigan Attorney General, Bill Schuette, filed a brief in support of Ms. Ward so he took a position contrary to the interests of a State University. On the other hand, the ACLU sided against the little guy and in favor of the big University. If the 6th Circuit upholds the District Court’s ruling, expect Ms. Ward to appeal to the SCOTUS. If the 6th Circuit reverses the District Court, there are several scenarios; appeal en banc, appeal to the SCOTUS, settlement, take a chance at trial.
If you have the time, here are the ACA’s amicus brief, Ms. Ward’s brief, the AG’s brief.
EMU has a site that links to several different briefs and opinions.
Filed under: homosexuality, Supreme Court | Tagged: 6th Circuit |
All Things in Moderation 
I agree that no constitutional issue is apparent, to me, either.I would like to read the Ward brief, too, or the AG's brief, if it is a clearer presentation of the question.I corrected the spelling of "without" for you.
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Mark, I added links to a couple of additional briefs and resources.
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I have just quickly looked over her brief, but if the facts are as she presents them imo this is an open and shut free exercise violation and likely speech violation. It also is representative of the larger conflict in which secularism is relentlessly striving to shut traditionally religious people out of society, out of the economy, and out of participation in government. Very frightening.It is highly ironic that part of the university's policy is the requirement to tolerate other points of view. Yeah, not so much when it isn't the officially sanctioned point of view.
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"It also is representative of the larger conflict in which secularism is relentlessly striving to shut traditionally religious people out of society, out of the economy, and out of participation in government."That is one of the reasons I wanted to bring up the case. I figured outside of the legal issues at stake there broader societal issues to discuss as well. How do you tolerate intolerance? It may be harsh to say Ms. Ward is intolerant, but I think it raises the question.
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Just so you guys know, I read all your legal stuff, I just don't feel very qualified to form an opinion on the legalities. I could speak to the issues maybe but not from a legal framework. Maybe if I read enough of them I'll get closer.
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It isn't just harsh but completely wrong and inaccurate to say she is intolerant. All that she did was follow the code and her instructions' guidance to refer make a referral based on a personal values conflict. She did nothing at all intolerant.It is completely accurate to say that the university is intolerant, since what the university did is explicitly not to tolerate a student's personal religious beliefs and in fact actively attacked them.Thus, I think you are asking the wrong question based on misdefining intolerance.
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lms, you are easily intelligent enough to grasp legal issues, although I understand that unfamiliarity is an obstacle, and lawyers should do a better job of making issues clearer.I understand, too, that there is a lot of reading in a set of briefs like this, especially when you don't instinctively which parts you can just skip. But, if it is any comfort, remember that 1Ls are taught law by jumping in to reading opinions and being interrogated in front of the class about them.
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qbI did both my mother-in-law and sister-in-law's estates in pro per and it took me about two months of research to feel qualified to do that simple task. I'll keep reading your guys' opinions and eventually I'll get there. I'll enjoy watching the three of you hash it out for now.
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"All that she did was follow the code and her instructions' guidance to refer make a referral based on a personal values conflict."How did she follow the code which specifically instructs couselors to put aside their values that are inconsistent with counseling goals? The University tolerated her beliefs. They gave her A's in all her classes and generally recognized her to be a good student while allowing her to express her opinions and values freely. What they didn't tolerate was allowing her beliefs to prevent her from following the Code of Ethics and performing what was required of her in a profession and program she willingly chose to persue. Would a medical school be required to graduate a physician who believed prayer was the only appopriate means of treating a given diagnosis and as a result refused to perform surgeries or provide any other treatment?
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ashot:How do you tolerate intolerance?.This is precisely the problem with the view that "tolerance" is in and of itself a virtue, a notion that seems pervasive in our modern culture. And it also shows the folly with attempting to legislate "tolerance", since law is by its very nature intolerant.But the real problem here, in my opinion, derives from the nature of Eastern Michigan as a public university. If it were private, then it ought to be able to dismiss Ms Ward for whatever reason it wants.
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The code explicitly does not require counselors to put aside their values. It explicitly provides for referrals. The ACA's brief is a work of artful evasion but as much as admits this.Even if the code were written explicitly to forbid counselors to decline to counsel about homosexual relationships, moreover, that would simply confirm to me not only its patently violative nature when enforced by the state but its fundamentally totalitarian nature. When I read the ACA's brief, I am struck that anyone can read it let alone write it without finding it chilling. The import of its position and the university's is that anyone who holds to traditional moral positions about homosexuality, and will not ignore or renounce them, is barred from a licensed profession. Here supervising professor literally interrogated her and attempted to force her to renounce her religious belief (which of course he misunderstands and misconstrued). She was subjected to "remediation" of her religious beliefs. That is literally what happened here: she was required satisfactorily to undergo "remediation" of her religious beliefs as a condition to remaining a student in good standing.I'm sorry but this is indeed fundamentally totalitarian ideology. If the ACA wants to be a private organization with its own code of ethics, that's fine, but if it wants to have an officially sanctioned role in state action leading to professional licensing, then its own religious intolerance is the problem and a violation of the 1st Amendment.I also want to note that, as is virtually always the case in these cases, the ACA and university are represented by some of the wealthiest and high-powered lawyers in the country. Often they do it for free. While this lonely student is represented by good but always underfunded public interest lawyers. When conservative Christians say their faith is under seige in the public square, it is no joke.
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ashot:Would a medical school be required to graduate a physician who believed prayer was the only appopriate means of treating a given diagnosis and as a result refused to perform surgeries or provide any other treatment? That is not a good analogue. A better one would be if a plastic-surgeon-to-be refused to contemplate doing boob jobs on rich women trying to enhance their looks because he was opposed to such a vulgar display of ego and wealth. Would a medical school be justified in refusing to graduate such a person?
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"This is precisely the problem with the view that "tolerance" is in and of itself a virtue, a notion that seems pervasive in our modern culture. And it also shows the folly with attempting to legislate "tolerance", since law is by its very nature intolerant."Actually, I agree with this. Particularly the second part. I posed the question to see what others thought. Requiring people not to discriminate, as the ACA does, inevitably results in discrimination against people like Ms. Ward."I also want to note that, as is virtually always the case in these cases, the ACA and university are represented by some of the wealthiest and high-powered lawyers in the country. Often they do it for free. While this lonely student is represented by good but always underfunded public interest lawyers."I'm going to email you about this later.
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I forgot to respond to that hypothetical.First, it is completely different, because seeking and performing surgery to to treat medical conditions does not involve behaviors or value judgments and beliefs about them. The ACA's brief has a very hard time explaining why, given that no one can deny that counselors have to have discretion to avoid value conflicts, this is any different. They just assert that it is different because it is different.Second, what real-world example of this exists? None that I an imagine. So it isn't even a complete hypothetical that can be considered.If the Left were really interested in something called "tolerance" or liberty or freedom of conscience in this area, it would realize that no reason exists why counselors who affirm and counselors who refer such clients cannot both properly serve clients, and absolutely no one is harmed by it. But people are harmed by this intolerant and discriminatory policy of the state. The Left is intolerant of traditional Christianity and morality, and this case is a perfect example of how.
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"I'm going to email you about this later"Uh oh, what did I do now?
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Did I miss something in ACA's brief, btw, when it said that declining to counsel about homosexual relationships is explicitly forbidden in the code? I never saw them cite anything for this.
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That does seem to be an err…generous definition of the word explicitly. I'm assuming the argument is that the code explicitly forbids discrimination and refusing to counsel about homosexual relationships is discrimination. Therefore, what she did is explicitly forbidden. To me that is a prime example of overplaying your cards. No reason to throw a gratuitous "explicitly" around when it only weakens your argument. Not in trouble, but I was going to disclose some personal information to reveal just how right you are.
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I do find it interesting that Ms. Ward appears to have purposefully sought out this fight. She went to a university accredited by the ACA with lawyers already lined up. I wonder if she purposefully chose EMU considering they had 2 other students who had previously had this problem. That's not a criticism at all. Lots of interest groups do that so why not Christians?
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This suit reminds me of a somewhat similar case here at the UU when an acting student sued saying that the Theater Department discriminated against her for being LDS. In our case, the parties ended up settling after the U implementing a policy which explicitly explained how and when a student could avoid doing something which went against their faith. That seemed like a good outcome to me, and one which EMU could also adopt for its counseling program. Couldn't they? (As the other non-lawyer trying to understand you guys).
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"That seemed like a good outcome to me, and one which EMU could also adopt for its counseling program. Couldn't they?"As with most legal question, the answer is it depends. If they can convince the ACA to agree with them, then it shouldn't be a problem. If they can't convince the ACA to agree with them, they might lose their accreditation for the program.
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Well, after reading Ward's brief, I am of a different opinion.She wrote:Based on the potential values conflict with a client who may be seeking a “gay affirmative” message, Ms. Ward asked Defendant Callaway, her Practicum supervisor, whether she should refer the potential client immediately or meet with him and then refer in the event a “values conflict” arose. (RE #9, Pl.’s Mot. Prelim. Inj., Ex. 3 at 8 ¶¶ 29-32; RE #82, Defs.’Mot. Summ. J., Ex. 4, Dugger Dep. 101:2-14; id., Ex. 1, Ward Dep. 211:23-212:8.)Defendant Callaway told Ms. Ward to refer the potential client, and Ms. Ward followed her instructions, referring the client without meeting him or speaking with him. (RE #9, Mot. Prelim. Inj., Ex. 3 at 8 ¶ 34.)EMU concedes that it teaches that referrals based on value conflicts are permissible. (RE #139, Summ. J. Order at 32.) In fact, EMU teaches that referrals based on conflicts over sexual values and practices are commonplace, despite the ACA’s prohibition on sexual orientation discrimination, which covers how a person “practice[s] or perceive[s] [their] sexuality—either as heterosexual,homosexual, or neither.”A professional ethics code can dictate behavior that is acceptable to the profession. If she followed the rule, as she states, then she can make the argument that she was nailed solely for her beliefs, which I think are protected. I was previously under the impression that she rejected the professional conduct code. I will read all the briefs before I decide whether to reverse or remand the SJ, but I am leaning toward Ward after reading hers.
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I think EMU's brief a footnote 12 gets to the real issue "Fundamentally, Appellant’s disagreement is with EMU’s, the Appellees’ and the profession’s governing bodies’ pedagogical conclusion that the appropriate standard of care for counselors generally, and for school counselors specifically, is not to try to change clients to conform to the counselor’s value system, but rather to counsel them within their own belief systems and goals."Do you guys think that their pedagogical decision violates the Constitution when it is enforced by a State university? Mark seems to think that EMU and the ACA don't really believe that you have to set aside your values because they acknowledge other conflicts of interest where referrals can be made. And given that, they are really attacking her viewpoint. I'm not so sure it's clear enough that SJ was appropriate, but it isn't clear to me that explanations offered by EMU and the ACA are a pretense of sorts for discriminating against Christians. I'm not a Con Law lawyer, but if there pedagogical reasoning is reasonable is it unconstitutional because it's impact is discriminatory.
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The ACA is a sham, and we can see it clearly by their mission statement:The mission of the American Counseling Association is to enhance the quality of life in society by promoting the development of professional counselors, advancing thecounseling profession, and using the profession and practice of counseling to promote respect for human dignity and diversity.Diversity? Ha. No diversity whatsoever, just a black boot on anyone who has a wholesome view of sexuality and wants to do counseling using an ethical framework. There is only one irresponsible view which is allowed by the ACA.The ACA has also written:“If counselors determine an inability to be of professional assistance to clients, they avoid entering or continuing counseling relationships.”
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on another issue in this case:“counselors should be able to set their beliefs aside and work with clients in ways that honor the client’s personal beliefs and lifestyle.”If you set all your beliefs aside, you have nothing left to counsel with. It is impossible to counsel without applying a large number of personal beliefs, no matter what religion or ideology you espouse. So that is just nonsense.This is sheer religious discrimination because one set of beliefs is being demonized. And if, as you say, atheist counselors should be able to set their beliefs aside and honor the client’s beliefs and lifestyle, so should the university and its social work department. They are not honoring Ward’s beliefs nor empowering her.And an education should be about empowerment.
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Then there is also this comment, which addresses another extremely important issue:Do you think that you would find it helpful to get advice from a counselor if you got the feeling that the counselor personally thought the advice was misguided? Maybe a counselor can hide that personal bias, but would you want to go to a counselor who gave advice that she thought was morally wrong and hid that fact?I think someone who is dealing with sensitive personal issues and helping a person change attitudes and behaviors regarding interpersonal relations needs to have integrity, which includes not giving advice that the counselor personally believes to be wrong. ===========We need more counselors like Julea Ward, simply put. And we need more lawsuits like this one. It's the only way to have our freedoms respected.
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"Did I miss something in ACA's brief, btw, when it said that declining to counsel about homosexual relationships is explicitly forbidden in the code? I never saw them cite anything for this. "============Well, I suggest you read the code directly and then compare it to this declaration? article? (not sure what the ACA deems this to be): http://www.counseling.org/pressroom/newsreleases.aspx?AGuid=b68aba97-2f08-40c2-a400-0630765f72f4I didn't spend too much time on the code, but I didn't see all that this article above contends the code stipulates.and if you hadn't heard:HOUSE BILL No. 5040 languageOctober 5, 2011, Introduced by Reps. Haveman, Rogers, Kowall, Daley, Pscholka, Heise, Shirkey, Hooker, Kurtz, Bumstead, Jenkins, Shaughnessy, Poleski, O’Brien, Knollenberg, MacMaster, Gilbert, Genetski, Franz, McMillin, Walsh, MacGregor, Huuki, Rendon, Lyons, Price, Johnson, Damrow, Foster, Olumba, Roy Schmidt, Yonker, Opsommer and Olson and referred to the Committee on Education.A bill to protect the right of a student to assert conscientious objection to providing certain counseling or other services; to prohibit certain actions by institutions of higher education; and to provide remedies.=====Send an email of support and congratulations to these Michigan state representatives! It's politicians like these that are working to protect our freedoms.
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