This past summer, the counseling profession found itself at the center of two legal cases in which tensions between public universities and free speech and between the rights of the lesbian/gay/bisexual/transgender population and the beliefs of religiously conservative students continued to play out.
In July, a federal judge rejected a lawsuit brought by a counseling student at Eastern Michigan University (EMU) who claimed she was unfairly dismissed from the counseling program after refusing, on religious grounds, to counsel a homosexual client. In dismissing plaintiff Julea Ward’s claims that her religious and speech rights were violated, the judge held that the university was reasonable in its requirement that counseling students be able to serve homosexual clients.
Then in August, another federal judge ruled against an Augusta State University counseling student who sued the university in a scenario similar to that at EMU. The most recent case has not yet gone to trial, but the court declined to grant an injunction that would have blocked Augusta State from expelling counselor education student Jennifer Keeton, who refused to follow a remediation plan after she objected to counseling homosexual clients.
American Counseling Association Chief Professional Officer David Kaplan says the EMU case in particular, which went to trial, should be considered a milestone for counselor education and the counseling profession. “I think it’s one of the most important court cases in the past 25 years,” Kaplan says, “because it speaks directly to whether counselors can discriminate against clients on the basis of client characteristics. The lawsuit was a direct threat to the nondiscrimination clause within the ACA Code of Ethics that specifically says that counselors may not discriminate against clients on the basis of age, culture, disability, ethnicity, race, religion/spirituality, gender, gender identity, sexual orientation, marital status/partnership, language preference, socioeconomic status or any basis proscribed by law.”
Ward, a conservative Christian admitted to EMU’s master’s program in counseling in 2006, was on her way to becoming a high school counselor. Shortly after beginning her practicum in 2009, she read the file of an assigned client and found he had previously been counseled about his same-sex relationship. Ward notified her supervisor that according to her religious beliefs, she would be unable to counsel the client and needed to refer. The supervisor canceled the counseling session and scheduled an informal review.
At the review, EMU faculty members explained to Ward that she was to abide by the university program, which adheres to the ACA Code of Ethics, meaning she and all other EMU counseling students are required to set aside their personal beliefs and values when working with clients. Given the choice of completing a remediation program, leaving the program or requesting a formal hearing, Ward chose the hearing. As a result of the formal hearing, Ward was dismissed from the program for violating the ACA Code of Ethics.
Ward sued with the backing of the Alliance Defense Fund (ADF), an organization of Christian lawyers that also assisted Keeton at Augusta State. Ward’s side maintained that in order to meet program requirements, Ward would have been forced to change her beliefs. It also asserted that the ethics code amounted to a speech code.
In opposition, EMU, with the support of ACA, held that Ward did not need to change her beliefs but, as a counselor, was required to respect the dignity and promote the welfare of the client while putting her own values aside. EMU’s legal team said a counseling referral should take place on the basis of the client’s needs and the competency — not the values — of the counselor.
A university’s right
In his ruling, Judge George Caram Steeh found fault with ADF’s argument on behalf of Ward. Contrary to the claims of the lawsuit, he maintained EMU did not violate Ward’s free speech rights, nor did it infringe on her religious freedom. Ward was free to express her views, he said, even in counseling classes and papers — and she did so, while still receiving superior grades.
In requiring students to work with all types of clients, the judge held that the university was enforcing a curricular requirement, which it has the right to do. The ACA Code of Ethics applies to students in the counseling program, he said, not to nonacademic student behaviors. “This is not a prohibition on a counselor making statements about their values and beliefs in a setting other than with a client,” Steeh wrote in the summary judgment. “This section is quite narrowly drawn to avoid imposing harm on clients.”
“The university had a rational basis for adopting the ACA Code of Ethics into its counseling program, not the least of which was the desire to offer an accredited program,” the judge noted. “Furthermore, the university had a rational basis for requiring its students to counsel clients without imposing their personal values. In the case of Ms. Ward, the university determined that she would never change her behavior and would consistently refuse to counsel clients on matters with which she was personally opposed due to her religious beliefs — including homosexual relationships. The university offered Ms. Ward the opportunity for a remediation plan, which she rejected. Her refusal to attempt learning to counsel all clients within their own value systems is a failure to complete an academic requirement of the program.”
EMU counseling professor Perry Francis says counselors should be proud of belonging to a profession that seeks to provide the best possible care to the greatest number of people. Still, Francis admits he’s left feeling less than ecstatic despite the judge siding with EMU. “To a certain extent, I’m disappointed that we could not work together to come to a mutually acceptable conclusion, that this had to evolve into a lawsuit, because nobody wins,” says Francis, who is also coordinator of the university’s counseling clinic. “The counseling profession gets a bad rap with a segment of the population that may not understand why we’re doing what we’re doing. The student is not opening herself up to looking at the world through her clients’ eyes and learning more effective ways of interacting with clients. So in that sense, I wouldn’t declare there are winners or losers. I would say it’s unfortunate that it came to this.”
Because of cases such as these, a perception is being fostered by some that counseling isn’t welcoming of people with strong religious beliefs, Francis says. That is simply untrue, he asserts. “We want people to have their values and their faith. But while we have these values, we have to learn to teach and help our students understand that our values, our faith systems and our actions are something we would set aside or compartmentalize so they don’t interfere with our ability to be present with our client. We try to understand what our clients’ contexts and systems are about, whether they come from a religious upbringing that is an integral part of their life or whether they don’t.”
“We’re not asking [students] not to be genuine,” Francis continues. “We’re asking them to not use their systems to judge or evaluate the person in front of them but to try and understand and work with that person from his or her worldview and system. We’re seeking to understand and work within the worldview of the client, regardless of what our worldview is.”
Francis predicts counseling departments will see more of these types of legal cases in the future. “The reason why is because I think people in general are becoming much more overt and up front about what they believe. And that’s fine, but I think what we’re hoping to do within counseling is say, ’OK, that’s part of who you are. How do you then work from a client’s point of view that may be different from your own?’”
The task for counselor educators, Francis says, is helping students navigate that road, which is where the trouble arose with Ward. “Ms. Ward is unable to or unwilling to acknowledge that there are people with whom she would work, given the proper supervision and training, and still be honorable to who she is as a person.”
The road ahead
Kaplan says the EMU ruling will be significant going forward because it upheld the ideals of the profession. “The case affirms what we have expected of students all along,” he says. “Counseling students need to become comfortable with the idea that they will be seeing people with very different value systems than the student holds. That is an inherent part of our code of ethics — that we value diverse populations.”
“One of the most basic implications of this case,” he continues, “is that it reaffirms the fact that our clients are more important than we are — that meeting our clients’ needs is more important than meeting our own needs.” Kaplan adds that the case supported the ACA Code of Ethics’ stand on discrimination, as well as highlighted the point that counselors refer on the basis of competency, not their own values.
Mary Hermann, associate professor and chair of the Department of Counselor Education at Virginia Commonwealth University and a former member of the ACA Ethics Committee, wrote an expert testimony for the EMU case. “To date,” Hermann says, “the judiciary is supporting the role of counselor educators as they work to help students learn to provide counseling services to a diverse clientele. As counselor educators, we are gatekeepers for the profession. We emphasize cultural competence in our training. Considering our ethical responsibilities set forth by ACA and the American School Counselor Association [a division of ACA], school counselor educators work to ensure that school counselors have the training and skills necessary to provide school counseling environments in which all students have equal access to school counseling services.”
Hermann, who coedited Ethical and Legal Issues in School Counseling, published by ASCA, also cites the ASCA position statement on “The Professional School Counselor and LGBTQ Youth,” which says school counselors “assist all students as they clarify feelings about their own sexual orientation/gender identity and the identity of others in a nonjudgmental manner.”
“The 2010 revision of the ASCA Ethical Standards further illustrates ASCA’s commitment to social justice and advocacy,” she says. “I believe that such a commitment indicates the direction of our profession.”
Barbara Herlihy, university research professor at the University of New Orleans, also contributed expert testimony in the EMU case and says counselor educators can feel encouraged by the judges’ rulings in both the EMU and Augusta State cases. She says the judges affirmed that educators have the right to define their curricula, that abiding by the ACA Code of Ethics is an appropriate curricular requirement and that counselor educators do not tolerate discrimination against any class of people.
“These cases underscore the importance of having sound, clear, written gatekeeping procedures that are disseminated to students in a student handbook, that provide students with due process and that include the opportunity to remediate any identified deficiencies,” says Herlihy, who was a member of the ACA Ethics Code Revision Task Force and a former chair of the ACA Ethics Committee. But Herlihy adds that counselor educators should also aim to head off problems before they start. “We have an additional obligation, in all fairness to students who invest considerable time, energy and money in pursuing their graduate degrees. We need to find ways to identify and remediate the kinds of problems that were at issue in these two cases before students reach their practicum.”
To view the judge’s summary judgment in the EMU case, visit emich.edu/aca_case/index.php.
ACA is planning to hold two education sessions about the EMU case at the ACA Annual Conference & Exposition in New Orleans in March. The first session, presented by EMU counseling faculty members, will focus on the implications of the case for counselor education. The second session will be presented by those who provided expert testimony on behalf of EMU and will focus on the case’s implications for the counseling profession. Dates, times and room locations for the sessions will be published in the Program Guide provided to all conference attendees and included on the conference section of the ACA website at counseling.org/conference. u
Lynne Shallcross is a senior writer for Counseling Today. Contact her at firstname.lastname@example.org.
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