Justice Black’s “absolutist” reading of the First Amendment, while celebrated, is not consistent with the actual text of the First Amendment.
On Friday, January 27, 2011, the Sixth Circuit Court of Appeals handed down an important victory for religious liberty on public university campuses in a lawsuit the Alliance Defense Fund brought against Eastern Michigan University (EMU) on behalf of Julea Ward. The court reversed the district court’s dismissal of Julea’s lawsuit and remanded the case to the lower court, finding that “a reasonable jury could conclude that Ward’s professors ejected her from the counseling program because of hostility toward her speech and faith.”
Julea, who was a student in EMU’s graduate counseling program, is a Christian whose sincere religious convictions prevent her from providing counseling regarding sexual relationships that she believes to violate biblical teachings. When EMU assigned her a client who needed counseling on such a relationship, she recognized the likely values conflict she would have with the client and asked her supervising professor what she should do. Consistent with the American Counseling Association’s (ACA) code of ethics (which twice authorizes client referrals) and what EMU taught Julea about referrals (e.g., highlighting a study finding that forty percent of professional counselors have referred clients due to values conflicts over sexual practices) the professor told her to have the client reassigned. This reassignment occurred before Julea had even met the client.
Instead of honoring Julea’s referral request, EMU charged Julea with violating two provisions of the ACA Code – a provision against imposing values on clients and a provision against discrimination including the typical list of protected characteristics plus many more (e.g., “culture,” “spirituality,” “sexual orientation,” etc.) – and took her through a disciplinary process punctuated by EMU professors targeting and denigrating Ward’s religious beliefs. Among other things, EMU professors offered Julea a “remediation” program aimed at changing her “belief system,” took Julea on a self-styled “theological bout” in which her understanding and interpretation of biblical scripture was attacked, and questioned Julea about whether she viewed her “brand of Christianity as superior” to other Christians. Shortly thereafter, EMU expelled Julea from the program. At the time of her expulsion, she was just four classes shy of completing the program and carried a 3.91 GPA.
Unfortunately, the lower court upheld EMU’s stunning treatment of Julea, and in the process implicitly authorized public universities gerrymandering students with sincere religious convictions right out of their programs.
Thankfully, the Sixth Circuit reversed the district court’s dangerous opinion, and in the process shed the light of the First Amendment (and some good, old-fashioned common sense) on the situation. I quote from the court’s opinion at length below because paraphrasing would not do it justice.
As to EMU’s claim that Julea violated the ACA provision against imposing values on clients, the court remarked:
What exactly did Ward do wrong in making the referral request? . . . . The point of the referral request was to avoid imposing her values on gay and lesbian clients. And the referral request not only respected the diversity of practicum clients, but it also conveyed her willingness to counsel gay and lesbian clients about other issues—all but relationship issues—an attitude confirmed by her equivalent concern about counseling heterosexual clients about extra-marital sex and adultery in a values-affirming way.
As to EMU’s claim that Julea violated the ACA provision prohibiting discrimination on the basis of sexual orientation, the court said:
Here too, what did Ward do wrong? Ward was willing to work with all clients and to respect the school’s affirmation directives in doing so. That is why she asked to refer gay and lesbian clients (and some heterosexual clients) if the conversation required her to affirm their sexual practices. What more could the rule require? Surely, for example, the ban on discrimination against clients based on their religion (1) does not require a Muslim counselor to tell a Jewish client that his religious beliefs are correct if the conversation takes a turn in that direction and (2) does not require an atheist counselor to tell a person of faith that there is a God if the client is wrestling with faith-based issues. Tolerance is a two-way street. Otherwise, the rule mandates orthodoxy, not anti-discrimination.
Regarding the fact that the ACA code allows referrals and that EMU had in fact permitted referrals in the past, yet punished Julea for her referral request and attacked the religious beliefs that motivated her request, the court said:
Why treat Ward differently? That her conflict arose from religious convictions is not a good answer; that her conflict arose from religious convictions for which the department at times showed little tolerance is a worse answer.
In the end, the court struck at the very heart of what Julea’s lawsuit is all about: that the First Amendment prohibits public universities from demanding that students change or violate their beliefs as a condition to getting a degree. As the court said: “A university cannot compel a student to alter or violate her belief systems . . . as the price for obtaining a degree.”
The Sixth Circuit is right, “Tolerance is a two-way street.” A fact that is often lost on public universities when it comes to Christian expression and belief, as Julea’s case so clearly shows.