KC Johnson Weighs in on 'Keeton' and More at 'Minding the Campus'
December 22, 2011
Over at Minding the Campus, KC Johnson has an excellent piece entitled "Emmer and Keeton-Two Terrible Decisions on Academic Freedom." As the title suggests, the piece is about the cases of Tom Emmer at Hamline University and Jennifer Keeton at Augusta State University.
Of particular note is Johnson's close read of last week's decision by the United States Court of Appeals for the Eleventh Circuit in Keeton v. Anderson-Wiley. While the decision upheld a denial of preliminary injunction on an "abuse of discretion" standard—and is thus arguably a procedural decision—the Eleventh Circuit did include some worrying dicta, which Johnson picks up:
[T]he court broadened its findings in two respects. First, the panel repeatedly maintained that ASU could justify its handling of Keeton by citing guidelines of the relevant national accrediting agency. In this instance, the ACA's guidelines (which included such provisions as "counselors must support their clients' welfare, promote their growth, respect their dignity, support their autonomy, and help them pursue their own goals for counseling") were eminently reasonable. But it's not hard to imagine national accrediting organizations adopting highly unreasonable standards: recall the demand of the National Council for the Accreditation of Teacher Education (NCATE) to test all prospective schoolteachers for their "disposition to promote social justice." The implication of Keeton, then, is that (at least in the 11th Circuit) the free speech rights of Education students are now hostage to any future permutation of NCATE's standards.
This highlights an unsettled but important question of law. There are many examples similar to this case: a state government regulates a profession such as law, medicine, counseling, or funeral services, and requires that licenses in that profession only go to graduates of schools accredited by a delegated independent accreditor such as the American Bar Association or NCATE (the latter of whom FIRE took on several years ago in the situation KC mentions). That same state government runs public universities which are subject to those accreditation standards, which can contain onerous conscience requirements and speech restrictions such as the one Johnson describes.
Since governments cannot restrict the speech rights of students directly with unlawful speech codes, why should they be able to do so through the backdoor, by appealing to "independent" accreditation requirements which the state government itself has sponsored?You can read Johnson's whole piece over at Minding the Campus.