Keeton Defense Contradicts NAS Principles

KC Johnson

As I noted previously, a three-judge panel of 11th Circuit made a troubling decision in the Jennifer Keeton case. But it did so not because it declined to reinstate Keeton, a Counseling student who said that she would recommend “conversion therapy” for prospective teenage clients who were gay and lesbian. As the decision noted, Keeton demanded “preferential, not equal, treatment,” seeking to ignore the field’s ethical guidelines of counselors putting their clients’ interests ahead of their own personal or religious beliefs. The decision was troubling because its findings could, and likely will, be used by colleges and universities in the circuit to stifle legitimate student freedoms on campus.

Thursday’s e-mail brought news that the National Association of Scholars has issued a statement criticizing the decision in much broader terms. The organization’s president, Peter Wood,expressed concerns that the ruling “sets underway a process of excluding Christians and others of similar moral belief from the counseling profession – the protections of the First Amendment notwithstanding.”

This response is unfortunate in two respects. First, claiming that the decision would result in “excluding Christians . . . from the counseling profession” mischaracterized the panel’s findings. The panel held that a Counseling program (a program designed to train students for a specific vocation) could embrace corrective measures when dealing with a student who: (a) prioritized her religiously-based beliefs over the evidence-based conclusions of the relevant professional agency (in this case, the American Psychological Association); and, more important, (b) promised to subordinate her clients’ interests to her own religious agenda, even if evidence existed that such behavior might harm her clients.

Contrary to the NAS statement, those findings would not have the effect of excluding the 78 percent of Americans who are “Christians” from the counseling profession. According to a July 2011 poll from Greenberg/Quinlan, only 24 percent of Americans believe that conversion therapy works. I’ve seen no polling that addresses part (b) of the ruling (whether people who endorse conversion therapy would impose their beliefs on gay and lesbian clients, despite the counseling profession’s ethical guidelines), but clearly not all conversion-therapy advocates would do so. Even if the 11thcircuit ruling is interpreted in the most stringent manner possible, then, its provisions would apply not to all or even most Christians, but to a small minority (perhaps 10 percent?) of the group.

Wild rhetorical exaggerations often appear in statements from defenders of the academic status quo, such as the AAC&U. But I expect more from the NAS. (Full disclosure: I’m a member of the executive committee of CUNY’s branch of NAS.)

Second, the NAS has distinguished itself for its consistent, often passionate, defenses of equal treatment of all on campus. The organization usually opposes identity politics-based special preferences, and for good reason—such preferences (whether in admissions or in personnel matters) generally undermine academic quality.

The NAS statement on the Keeton case, however, appears to reflect a different viewpoint. In an unusually-worded passage defending Keeton’s right to recommend clients for conversion therapy, Wood accuses the court of overlooking how “the affirmation of divergent lifestyle options is itself an ethical choice.” The NAS statement cites no evidence that conversion therapy, which is opposed by every major medical and psychological organization and was further weakened by a brutal 2011 CNN investigation, works; or that the therapy doesn’t threaten to harm clients, as some studies have suggested.

If a Counseling program has any purpose, it would seem, it would be making sure that people who favor treatments that might bring their clients harm don’t enter the profession. Surely the NAS wouldn’t affirm that an Education M.A. program would have to certify a Black Muslim student who wanted to teach Ebonics based on his sincerely-held religious beliefs. Yet an evidence-free approach in a Counseling program is acceptable for conservative Christian students?

Impenetrable academic jargon (such as, in this case, “the affirmation of divergent lifestyle options”) often masks the weakness of the overall argument in statements coming from defenders of the academic status quo, such as the AAC&U. But I expect more from the NAS.


In addition to my appreciation to NAS for posting this dissent, let me offer a few additional thoughts, beyond the Minding the Campus post.

(1) NAS, FIRE, and ACTA led the fight against the “dispositions” requirement for Education students around the country. The groups succeeded by pointing out how Education schools were defining a “disposition to promote social justice” as little more than an ideological litmus test wholly unrelated to the qualifications of a public school teacher. NCATE, the Education accrediting agency, certainly couldn’t cite any studies to prove why students who opposed affirmative action or supported George W. Bush’s reelection were in any way unfit to be schoolteachers.

In the Keeton affair, however, the American Counseling Association can point to numerous studies, conducted at the highest level of the profession, on behalf of its accepted standards (in this instance, that "counselors must support their clients' welfare, promote their growth, respect their dignity, support their autonomy, and help them pursue their own goals for counseling”). One advantage those of us sympathetic to NAS generally have in debates about higher education is that we can cite evidence on behalf of our positions, while defenders of the academic status quo too often appeal to emotion or level empty accusations of prejudice. It’s certainly out of character, therefore, to see NAS taking a position that is heavy on emotional appeal, but contradicts most of the available evidence.

(2) The Volokh/NAS/FIRE brief pointed out that Keeton had delivered her various remarks about how she’d treat gay and lesbian clients in the classroom, and that she hadn’t actually behaved in a prejudicial manner toward gay and lesbian clients in a practicum (because she never received that chance). The inference appeared to be that if, in the practicum, she counseled a gay or lesbian teenager to undergo conversion therapy, AugustaState could then terminate her from the program. That seemed to me a distinction without a difference—surely Counseling programs wouldn’t have the obligation to allow a student who said in class that she’d counsel all black clients to recognize their intellectual inferiority to actually counsel black clients along these lines before cashiering her from their program. Still, the line of argument provided an opening for a sympathetic judge who wanted to reinstate Keeton but didn’t want to rule that Counseling programs had an obligation to graduate students who recommended conversion therapy.

The NAS reaction to the 11th circuit panel decision, however, abandons that line of thought, essentially arguing that even if Keeton had recommended in her practicum conversion therapy for a gay or lesbian client, such behavior would have been acceptable, since “there should be as many modes of counseling and ethical choice as there are lawful philosophies of life,” even if such counseling approaches violate the ACA’s Ethical code.  That strikes me as a much harder position to defend than the viewpoint from the original brief. It also appears to ignore that the first and only purpose of counseling is the client’s well-being, not the counselor’s opportunity to promote his or her religious beliefs.

(3) In legal matters, all issue-oriented organizations must consider the broader ramifications of their decisions. Take the most famous example, the NAACP’s settling the 1997 teacher affirmative action case in New Jersey. The Keeton case was and remains a longshot, since the record before both the district court and the circuit court had Keeton saying she’d impose her religious views on her clients, rather than defer counseling them, as in an otherwise similar case in Michigan.

As I noted in my MTC post, NAS has distinguished itself over the years for its support for equal treatment of everyone on campus, and its backing of high standards based on evidence. Now, the organization is on record backing a student who was recognized even by a panel of the 11th circuit—which is not exactly known for its support of gay rights—as demanding “preferential, not equal, treatment.” Having endorsed preferential treatment (for Christian conservative students) in this case, it’s going to be more difficult for the organization to explain its opposition to preferential treatment for other groups in the future.

Regardless of readers’ positions on the merits of conversion therapy, that outcome strikes me as unfortunate for NAS and its positive role in higher education. 

A version of this essay originally appeared here on Minding the Campus.

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