For the last seventy-five years, Augusta, Georgia has predominantly been known for its connection to the Masters, one of the nation\u2019s most tradition-laden events in all of sports.\u00a0 But less than a mile from Magnolia Lane, Augusta State University (ASU) has become embroiled in a legal controversy with a former graduate student that has captured the attention of religious groups and gay rights advocates alike.<\/p>\n
In July 2010, Jennifer Keeton, a former ASU student pursuing a masters degree in school counseling, sued the public university on First Amendment free speech and free exercise grounds, after it threatened to expel her unless she agreed to participate in a remediation plan designed to improve her ability to counsel members of the GLBTQ community.\u00a0 Along with her complaint, she sought a preliminary injunction barring ASU officials from dismissing her from the program.\u00a0 In August, the federal district court denied her motion for a preliminary injunction in Keeton v. Anderson-Wiley<\/a><\/span>, a decision that was upheld by the Eleventh Circuit Court of Appeals last month.<\/p>\n On a number of occasions during her first year in the Counselor Education Program, Keeton, a self-described devout Christian, expressed her belief that homosexuality is immoral.\u00a0 She also told classmates and professors that she would have difficulty working with GLBTQ clients, that she would tell GLBTQ clients that \u201cit\u2019s not okay to be gay,\u201d and that if she were unable to change their sexual behavior herself, she would refer them to someone who practiced conversion therapy. \u00a0Before Keeton\u2019s second year was set to begin, in which she was scheduled to engage in one-on-one counseling with middle and high school students, ASU officials determined that her comments indicated an intent to violate four separate provisions of the American Counseling Association\u2019s Code of Ethics, which counseling education programs are required to teach in order to maintain their accreditation. \u00a0ASU gave her a choice: participate in a remediation plan, or be dismissed from the program.<\/p>\n Keeton\u2019s remediation plan would have required her to, among other things, attend three diversity training sessions focused toward working with GLBTQ clients, read ten peer-reviewed articles pertaining to effective counseling of GLBTQ clients, increase her interaction with the GLBTQ population by, for example, attending Augusta\u2019s Gay Pride Parade, and write monthly reflection papers summarizing what she had learned.\u00a0 An addendum to the remediation plan emphasized that Keeton was not being asked to change her beliefs, but rather to separate her beliefs from her counseling.\u00a0 Keeton refused to participate in the remediation plan, opting instead to file a lawsuit against the university in the U.S. District Court for the Southern District of Georgia.\u00a0 After the district court denied her motion for a preliminary injunction, she was expelled from ASU.<\/p>\n On appeal to the Eleventh Circuit, Keaton\u2019s lawyers predominantly raised two arguments for why her expulsion was unconstitutional, both unsuccessfully.\u00a0 First, Keeton claimed that the requirement that she participate in a remediation plan violated her right to free exercise of religion.\u00a0 In Cantwell v. Connecticut<\/a><\/span>, the court divided the free exercise clause into the freedom to believe and the freedom to act, and held that \u201cthe first is absolute but, in the nature of things, the second cannot be.\u201d\u00a0 The court established the current test for determining whether restrictions on actions violate the Free Exercise Clause in Employment Division v. Smith<\/a><\/span>.\u00a0 So long as the law that creates the interference has a religiously-neutral intent and is generally applicable, it need only be rationally related to a legitimate government interest to be upheld.\u00a0 In Keeton<\/span>, the appellate court determined that ASU had a neutral and general practice of crafting remediation plans when students failed to comply with the Code of Ethics.\u00a0 Since ASU\u2019s policy was rationally related to its interest in maintaining its accreditation\u2014a requirement of ASU\u2019s accreditation is that it \u201caddress the inability of some students to achieve counseling competencies that might impede performance\u201d\u2014the court rejected Keeton\u2019s Free Exercise claim.<\/p>\n Second, Keeton argued that the remediation plan placed unconstitutional restrictions on her freedom of speech.\u00a0 While Keeton\u2019s statements are offensive to many, myself included, they are nevertheless legally protected.\u00a0 In R.A.V. v. City of St. Paul<\/a><\/span>, in which the Supreme Court declared unconstitutional a law that made it illegal to burn a cross, the Court stated that \u201cthe First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed.\u201d\u00a0 Unless the speech contains obscenities, defamatory statements, or \u201cfighting words,\u201d it is generally protected.\u00a0 Though Keeton\u2019s speech is legally protected, her right to speak is not absolute.\u00a0 Because school classrooms constitute nonpublic forums, program officials may impose restrictions on speech, so long as they are viewpoint neutral and reasonable.\u00a0 I believe that the Eleventh Circuit erred in determining that both criteria had been met.<\/p>\n The Eleventh Circuit determined that ASU\u2019s decision to impose a remediation plan was viewpoint neutral, because it stemmed from Keeton\u2019s expressed intent to violate the Code of Ethics, not from her religiously-based views on homosexuality. \u00a0I am unable to see how this makes ASU\u2019s decision more neutral with respect to the views expressed in the speech.\u00a0 Under ASU\u2019s policy, students who express viewpoints inconsistent with the Code of Ethics will be made to undergo remediation, while students whose views are consistent with the Code of Ethics will not.<\/p>\n