In ‘Ward v. Polite,’ Sixth Circuit Reaches Right Result, but with Wrong Reasoning
January 30, 2012
On Friday, the United States Court of Appeals for the Sixth Circuit ruled that expelled Eastern Michigan University (EMU) counseling student Julea Ward's First Amendment suit may continue, finding that a federal district court had improperly granted the EMU defendants summary judgment. Ward was expelled from EMU's graduate counseling program after she inquired about referring a gay client who sought counseling regarding a same-sex relationship. The Sixth Circuit found that Ward had presented sufficient evidence that, when viewed in the light most favorable to Ward (a necessary inference when deciding motions for summary judgment), could prompt a jury to conclude that Ward had been expelled because of "hostility toward her speech and faith." The Sixth Circuit's reversal returns the case to the district court.
The case is Ward v. Polite, and the Sixth Circuit's opinion is available here (.PDF). It's an interesting opinion, and you'll want to check out the court's discussion in full. The Sixth Circuit's close reading of the record is particularly noteworthy: the court constructs a strong case suggesting that Ward's expulsion was prompted not by her failure to abide by EMU policy, but rather by the faculty's hostility towards Ward's religious beliefs. But while the court's decision to allow the case to continue may be the correct outcome, given the evidence presented, its reading of student speech precedent may do considerable damage to First Amendment rights on campus in the long run.
In this blog entry, I'll cover the facts at issue and discuss the court's holding. Later this week, I'll focus on how the opinion could harm campus speech in the future.
Let's start with the facts of the case.
After working as a high school teacher, Julea Ward decided to pursue a master's degree in school counseling, enrolling in EMU's program in 2006 while continuing to teach full-time. Once enrolled, Ward's Christian beliefs—particularly her views on homosexuality, and her contention that these views prohibited her from "affirming" or "validating" the choices of gay or lesbian clients—proved to be a flashpoint for conflict with her professors. Despite this tension, Ward did well academically. The Sixth Circuit notes that she was close to completing her degree when "she enrolled in a counseling practicum, a graduation prerequisite that requires students to apply what they have learned through one-on-one counseling sessions with real clients."
Reviewing her clients' files, Ward noticed that one of her clients sought counseling with regard to a same-sex relationship. Ward contacted her faculty supervisor and asked if she should begin counseling, only referring the client "if the counseling session required Ward to affirm the client's same-sex relationship," contrary to her Christian beliefs, or if she should simply refer the client to another student prior to their initial meeting. The faculty supervisor reassigned the client to another student, and then scheduled an "informal review" with Ward and Ward's academic supervisor. During the informal review, Ward was given a choice between leaving the program voluntarily or submitting to a "formal review," "in which a committee composed of several faculty members and one student considers allegations of improper behavior or poor academic performance."
Ward chose the formal review, which consists of a hearing before a committee charged with disciplinary powers. Beforehand, her academic supervisor told her she had violated the American Counseling Association's (ACA's) code of ethics, which are incorporated into the graduate program's student handbook, because she had "impos[ed] values that are inconsistent with counseling goals" and "engag[ed] in discrimination based on . . . sexual orientation." During the formal review committee's hearing,
Ward responded that she did not discriminate against anyone. She had no problem counseling gay and lesbian clients, so long as the university did not require her to affirm their sexual orientation. Because her professors taught her that counselors dealing with such clients "cannot talk about anything other than affirming [their same sex] relationships,"—a message Ward's religious beliefs prohibited her from delivering—Ward asked that she be allowed to refer gay and lesbian clients seeking relationship advice to another counselor. [Internal citations omitted.]
The formal review committee concluded that Ward had indeed violated the code of ethics, and, because she was "unwilling to change [her] behavior," the committee expelled her from the program.
Following her expulsion, Ward brought suit with the assistance of the Alliance Defense Fund, alleging that the defendants, employees of a public school, had violated her rights to freedom of expression and freedom of religious exercise under the First Amendment. The district court first dismissed the defendants who weren't involved in the decision-making process—the President and Board of Regents—and then granted summary judgment to the remaining defendants, effectively dismissing Ward's case, by finding that they had "permissibly enforced a neutral and generally applicable curricular requirement against Ward and did not target her because of her speech or religious beliefs." Ward appealed the district court's ruling to the Sixth Circuit, which brings us up to speed.
Now on to the opinion itself.
In reversing the lower court's ruling, the Sixth Circuit focused closely on the reasons proffered by EMU for Ward's expulsion—namely, her alleged violation of the ACA's code of ethics and EMU's no-referrals-during-practicum policy—and found them wanting. With regard to the ACA's code of ethics, the Sixth Circuit found that, contrary to EMU's interpretation, Ward's request to refer the gay client didn't violate ACA policy. Indeed, the court concluded that the ACA code "does not prohibit values-based referrals like the one Ward requested." Analyzing EMU's interpretation of ACA policy, the Sixth Circuit further observed:
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.
Having taken EMU to task with regard to its interpretation of the ACA code of ethics, the court then turned to the defendants' claim that per program policy, practicum students weren't allowed to refer clients at all. But here, too, the court finds the defense wanting, noting that this policy was apparently an unwritten one:
No matter what the code of ethics means and no matter how it has been interpreted, the university defendants respond that the school had a different policy for practicum students—a "blanket rule" that they could not refer any clients. But a reasonable jury could find that this was an after-the-fact invention. The university cannot point to any policy articulated in its course materials, the student handbook or anything else forbidding practicum students from making referrals. The student manual, to the contrary, includes a chapter dedicated to "Referrals," which says that students "may at times need to refer a client for additional counseling services outside the Counseling Clinic" and encourages students "to first consult with their Faculty Supervisor for assistance in making the referral." At no point did any professor tell Ward about a no-referral policy—not during the informal review, not during the formal review, not even in the letter dismissing her from the program.
Based on the professors' and Ward's statements, a reasonable jury could conclude that practicum students were required to follow the written code of ethics, not an unwritten (yet-to-be-enforced) no-referrals policy. The epitome of a pretextual explanation for a student's expulsion is a reason never expressed or invoked before.
Unfortunately for EMU, the Sixth Circuit found still more suggestions in the record that the reasons cited for Ward's expulsion were pretextual—for example, Ward's questioning during the formal review by her professors, who pressed her aggressively about her faith. Noting that "[m]any of the faculty members' statements to Ward raise a similar concern about religious discrimination," the court concluded that "[a] reasonable jury could find that the university dismissed Ward from its counseling program because of her faith-based speech, not because of any legitimate pedagogical objective."
EMU fared no better with the Sixth Circuit in the context of Ward's free exercise claim. As the court explained, the government (including, of course, public universities like EMU) may impose neutral, generally applicable rules that burden the free exercise of religion, but only if it does so in furtherance of a compelling state interest, and even then it may act only in a narrow, minimally burdensome way. After again closely reviewing the record and the reasons cited by EMU for Ward's expulsion, the Sixth Circuit again found EMU wanting:
Whatever interest the university served by expelling Ward, it falls short of compelling. Allowing a referral would be in the best interest of Ward (who could counsel someone she is better able to assist) and the client (who would receive treatment from a counselor better suited to discuss his relationship issues). The multiple types of referrals tolerated by the counseling profession severely undermine the university's interest in expelling Ward for the referral she requested.
The court further noted that "the unsubstantiated possibility that the counseling program could lose its [ACA] accreditation" for failing to discipline Ward for her alleged violation of the ACA code did not constitute a sufficiently compelling interest to justify Ward's expulsion. Indeed, as the court noted, there was "no concrete evidence that Ward's referral request placed the program's accreditation in danger."
After its close review of the record and the evidence presented by Ward in support of her claims, the Sixth Circuit's decision to reverse and remand here makes sense. As the court notes, neither side deserves to prevail as a matter of law at this early stage of the proceedings:
None of this means that Ward should win as a matter of law with respect to her free-speech and free-exercise claims. In view of the university's claim that a no-referral policy existed for the practicum class, supported by the testimony of several professors and administrators, and in view of the reality that the purported policy arises in the context of a university's curriculum and its counseling services, the district court properly rejected Ward's cross-motion for summary judgment. Construing the evidence in the university's favor, a jury might credit the university's claim that such a policy existed and conclude that practicum students were subject to a general ban on referrals, making it difficult for Ward to demonstrate that she was expelled on pretextual grounds as opposed to the ground that she refused to adhere to a general and reasonable curricular requirement. Just as the inferences favor Ward in the one setting, they favor the university defendants in the other. At this stage of the case and on this record, neither side deserves to win as a matter of law.
But while last Friday's ruling is a clear win for Ward, its lasting impact on campus speech rights may be far less favorable. I'll have more on that angle later this week, so be sure to check back here on The Torch for more.