Court of Appeals Fails to Defend Freedom of Speech in Counseling Profession

PRINCETON, NJ (December 20, 2011) - The National Association of Scholars expressed disappointment at yesterday’s ruling by a three-judge panel of the Eleventh Circuit of the U.S. Court of Appeals in the case of Keeton v. Anderson-Wiley.

On December 2, 2010, along with the Foundation for Individual Rights in Education, the NAS filed an amicus brief supporting Jennifer Keeton’s claims that her First Amendment rights to freedom of speech had been violated by Augusta State University. Keeton had withdrawn from the university’s counselor education program and brought suit after being informed that her Bible-based belief that homosexuality was wrong required that she participate in a “remediation plan.” This plan included “diversity sensitivity training” and interaction with the GLBTQ population at events such asAugusta’s Gay Pride Parade.

In its decision released yesterday, the court found that this remediation requirement based on the American Counseling Association’s Code of Ethics that counselors “avoid imposing their values…respect the diversity of clients [and] not engage in discrimination based on…sexual orientation,” did not unconstitutionally burden Keeton’s free speech rights. In so doing it sustained an earlier District Court opinion denying her motion for a preliminary injunction.

“ASU contends and the court has accepted,” observed NAS president Peter W. Wood, “that its counseling programming merely exercised its right to set curricular standards. What we fear instead is that the entanglement of these standards with the ACA Code of Ethics and Georgia statecounseling licensing requirements 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 is certainly what is happening to Jennifer Keeton.”

“The court assumes,” Wood continued, “that counseling, like medicine, simply draws upon a body of scientific knowledge. It also assumes that the ACA Ethical Code’s ethical relativism is equivalent to ethical neutrality. Neither is true. Counseling is inescapably an ethical activity and the affirmation of divergent lifestyle options is itself an ethical choice. In a free, pluralistic society there should be as many modes of counseling and ethical choice as there are lawful philosophies of life. Unfortunately, the court’s failure to see this decision in that larger context threatens to replace healthy pluralism with a single, constricting doctrine. We hope future decisions will take this larger context into account.” 

NAS works to improve American higher education by expanding intellectual standards, academic freedom, and institutional transparency in colleges and universities. To learn more about NAS, visit www.nas.org.

CONTACT: Peter Wood, President, NAS: 609-683-7878[email protected]

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