Julea Ward v. Vernon Polite

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0024p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant/Cross-Appellee, -

JULEA WARD,

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Nos. 10-2100/2145

v.

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VERNON POLITE; IRENE AMETRANO; PERRY

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FRANCIS; GARY MARX; PAULA

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STANIFER;YVONNE CALLAWAY; SUZANNE

DUGGER, -

Defendants-Appellees/Cross-Appellants, -

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ROY WILBANKS; FLOYD CLACK; GARY D.

HAWKS; PHILIP INCARNATI; MOHAMED -

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OKDIE; FRANCINE PARKER; THOMAS W.

Defendants. -

SIDLIK; JAMES STAPLETON; SUSAN MARTIN,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 09-11237—George C. Steeh, District Judge.

Argued: October 4, 2011

Decided and Filed: January 27, 2012

Before: GIBBONS and SUTTON, Circuit Judges; ADAMS, District Judge.*

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COUNSEL

ARGUED: Jeremy D. Tedesco, ALLIANCE DEFENSE FUND, Scottsdale, Arizona,

for Plaintiff. Mark T. Boonstra, MILLER CANFIELD, PADDOCK AND STONE,

P.L.C., Ann Arbor, Michigan, for Defendants. ON BRIEF: Jeremy D. Tedesco,

ALLIANCE DEFENSE FUND, Scottsdale, Arizona, David A. French, ALLIANCE

DEFENSE FUND, Columbia, Tennessee, Steven M. Jentzen, Ypsilanti, Michigan, for

Plaintiff. Mark T. Boonstra, David R. Grand, MILLER CANFIELD, PADDOCK AND

STONE, P.L.C., Ann Arbor, Michigan, for Defendants. Eugene Volokh, UCLA

*

The Honorable John R. Adams, United States District Judge for the Northern District of Ohio,

sitting by designation.

1

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SCHOOL OF LAW, Los Angeles, California, Walter M. Weber, AMERICAN CENTER

FOR LAW & JUSTICE, Washington, D.C., Deborah J. Dewart, Swansboro, North

Carolina, Benjamin D. DuPré, FOUNDATION FOR MORAL LAW, Montgomery,

Alabama, Eric C. Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY,

Washington, D.C., Gregory M. Lipper, Ayesha N. Khan, AMERICANS UNITED FOR

SEPARATION OF CHURCH AND STATE, Washington, D.C., David Sapir Lesser,

Brian A. Sutherland, Alan E. Schoenfeld, WILMER CUTLER PICKERING HALE

AND DORR LLP, New York, New York, Jill M. Wheaton, Lauren M. London,

DYKEMA GOSSETT PLLC, Ann Arbor, Michigan, Camilla B. Taylor, LAMBDA

LEGAL DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois, Michael J.

Steinberg, ACLU FUND OF MICHIGAN, Detroit, Michigan, Daniel Mach,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, D.C., Debra

A. Kowich, UNIVERSITY OF MICHIGAN, Ann Arbor, Michigan, Bruce H. Edwards,

MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Amici Curiae.

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OPINION

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SUTTON, Circuit Judge. In its graduate-level counseling-degree program,

Eastern Michigan University prohibits students from discriminating against others based

on sexual orientation and teaches students to affirm a client’s values during counseling

sessions. In three years with the program, Julea Ward frequently expressed a conviction

that her faith (Christianity) prevented her from affirming a client’s same-sex

relationships as well as certain heterosexual conduct, such as extra-marital relationships.

That stance did not sit well with the values-affirming lessons of her counseling

professors, but for nearly three years none of this prohibited Ward from continuing to

take classes toward a degree and from doing well in the process. Entering the last stages

of the program with a 3.91 GPA, she signed up for a student practicum, a required course

in experiential learning that requires students to put their training into practice by

counseling real clients. When the university asked Ward to counsel a gay client, Ward

asked her faculty supervisor either to refer the client to another student or to permit her

to begin counseling and make a referral if the counseling session turned to relationship

issues. The faculty supervisor referred the client. The university commenced a

disciplinary hearing into Ward’s referral request and eventually expelled her from the

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program. Ward sued the university defendants under the First and Fourteenth

Amendments.

Curriculum choices are a form of school speech, giving schools considerable

flexibility in designing courses and policies and in enforcing them so long as they

amount to reasonable means of furthering legitimate educational ends. The key problem

with the university’s position is not the adoption of this anti-discrimination policy, the

existence of the practicum class or even the values-affirming message the school wants

students to understand and practice. It is that the school does not have a no-referral

policy for practicum students and adheres to an ethics code that permits values-based

referrals in general. When the facts are construed in Ward’s favor, as they must be at

this stage of the case, a reasonable jury could conclude that Ward’s professors ejected

her from the counseling program because of hostility toward her speech and faith, not

due to a policy against referrals. We reverse the trial court’s grant of summary judgment

in favor of the university.

I.

After teaching English and radio and television broadcasting at Southfield High

School in suburban Detroit for ten years, Julea Ward decided to become a school

counselor. Ward enrolled at Eastern Michigan University in May 2006 and began taking

classes towards a master’s degree in counseling, all while continuing to teach full-time.

In order to become a licensed counselor in Michigan, an individual must obtain a

master’s degree in counseling. See Mich. Comp. Laws § 333.18107(1)(b). Early on in

the university’s counseling program, Ward sparred with professors over faith-based

issues, particularly her belief that Christianity prohibited her from “affirm[ing]” or

“validat[ing]” the “homosexual behavior” of counseling clients. R. 9-5 at 5. When

Ward expressed these views, professors disagreed, sometimes kindly, sometimes less so,

but consistently making the point that, as a counselor, she must support her clients’

sexual orientation, whatever that may be.

Despite these occasional conflicts, Ward did well academically. She had a 3.91

grade point average going into the winter 2009 quarter, with just four classes (13 credit

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hours) left to complete the degree. That quarter, 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. Students spend a minimum of 40 hours

counseling several clients over the course of the practicum. Students meet with clients

in an office at the school, and they later meet with a faculty supervisor for at least one

hour each week to discuss the clients, the practicum and their professional development.

Ward counseled her first two clients in practicum without incident. When she

reviewed the file of the third client, she noticed he sought counseling about a same-sex

relationship. Ward called her faculty supervisor, Professor Yvonne Callaway, and asked

(1) whether she should meet with the client and refer him only if it became

necessary—only if the counseling session required Ward to affirm the client’s same-sex

relationship—or (2) whether the school should reassign the client from the outset.

Callaway reassigned the client.

When Ward met with Callaway the next day for their weekly meeting, Callaway

was not happy. In twenty years of teaching, she told Ward, no practicum student had

made such a request. Callaway told Ward that her actions created an “ethical dilemma,”

prompting her to schedule an informal review with Ward. R. 82-3 at 215. These

meetings are not “disciplinary” but are designed “to assist the student in finding ways

to improve his/her performance or to explore the option of the student voluntarily

leaving the program.” R. 14-7 at 15. Callaway, Ward and Ward’s academic supervisor,

Professor Suzanne Dugger, participated in the informal review. Callaway raised

concerns about Ward’s refusal to counsel the assigned client, and Ward reiterated her

religious objection to affirming same-sex relationships. All three participants agreed that

“the development of a remediation plan would not be possible.” R. 80 at 2. Dugger and

Callaway gave Ward two options: withdraw from the program or seek a formal review.

Ward asked for a formal review, in which a committee composed of several faculty

members and one student considers allegations of improper behavior or poor academic

performance. The committee may impose a range of sanctions, from requiring a student

to repeat a course to dismissing the student from the program.

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Before the hearing, Dugger told Ward that she had violated two provisions of the

American Counseling Association’s (ACA) code of ethics by: (1) “imposing values that

are inconsistent with counseling goals,” Rule A.4.b, and (2) “engag[ing] in

discrimination based on . . . sexual orientation,” Rule C. 5. R. 1-4 at 2. The counseling

program’s student handbook incorporates the ACA code of ethics and tells students,

including practicum students, to follow it.

The formal review committee consisted of two faculty members from the

counseling program (Professors Irene Ametrano and Perry Francis), one faculty member

from the education leadership program (Professor Gary Marx) and one student

representative (Paula Stanifer). The hearing began with an explanation of the faculty

members’ concerns, including Callaway’s and Dugger’s accounts of Ward’s practicum

experience and their shared opinion that her conduct violated the code of ethics. Dugger

recommended that Ward be dismissed from the counseling program.

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,” R. 1-5 at 18—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.

Two days later, the university sent Ward a letter conveying the committee’s

unanimous opinion that she violated the code of ethics. Because Ward was “unwilling

to change [her] behavior,” the committee expelled her from the counseling program,

effective that day. R. 1-7. Ward appealed the committee’s decision to the Dean of the

College of Education, Dr. Vernon Polite. He denied the appeal.

Ward filed this § 1983 action against the members of the formal review

committee and Professor Callaway, Professor Dugger and Dean Polite as well as the

President and the members of the Board of Regents of the University. Her expulsion

from the program, she claimed, violated her free-speech and free-exercise rights under

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the First and Fourteenth Amendments. At the outset, the district court dismissed Ward’s

official-capacity claims against the President and Board of Regents because they did not

play a role in the expulsion.

At the close of discovery, the district court granted the defendants’ motion for

summary judgment and denied Ward’s cross-motion. The court held that the university

defendants permissibly enforced a neutral and generally applicable curricular

requirement against Ward and did not target her because of her speech or religious

beliefs.

II.

The First Amendment to the United States Constitution, applicable to the States

through the Fourteenth Amendment, prohibits governments from “abridging the freedom

of speech” and “prohibiting the free exercise” of “religion.” Ward claims the university

defendants violated both guarantees.

A.

The “freedom of speech” claim implicates two strands of law that occasionally

run into each other. At one level, governmental bodies, including public high schools

and universities, have considerable authority to control their own speech. See Garcetti

v. Ceballos, 547 U.S. 410, 421–22 (2006); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.

260, 271, 273 (1988); Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch.

Dist., 624 F.3d 332, 340 (6th Cir. 2010). Foremost among a school’s speech is its

selection and implementation of a curriculum—the lessons students need to understand

and the best way to impart those lessons—and public schools have broad discretion in

making these choices. See Christian Legal Soc’y v. Martinez, 561 U.S. ___, 130 S. Ct.

2971, 2988–90 (2010). This line of authority helps to explain why the First Amendment

allows: (1) a public high school to delete stories from the school newspaper—one about

teenage pregnancy, the other about the impact of divorce on students—given that the

paper “bear[s] the imprimatur of the school” and the school’s actions were “reasonably

related to legitimate pedagogical concerns,” Hazelwood, 484 U.S. at 271, 273; (2) a

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public high school to require students who display a banner bearing the message “BONG

HiTS 4 JESUS” during a school-sponsored event to remove the banner or face

suspension because schools may “restrict student expression that they reasonably regard

as promoting illegal drug use,” Morse v. Frederick, 551 U.S. 393, 408 (2007); and (3) a

law school at a public university to enforce an “all comers” policy requiring registered

student organizations to accept all interested students regardless of whether their conduct

or beliefs are consistent with the organizations’ ideals, Christian Legal Soc’y, 130 S. Ct.

at 2995 (2010).

The Court, at the same time, has insisted that the public schools are not

expression-free enclaves. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,

511 (1969). The free-speech clause generally prohibits suppressing speech “because of

its message,” and the Court has enforced that prohibition in the public school—indeed

the university—setting. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819, 828 (1995). The free-speech guarantee also generally prohibits the most aggressive

form of viewpoint discrimination—compelling an individual “to utter what is not in [her]

mind” and indeed what she might find deeply offensive—and the Court has enforced that

prohibition, too, in the public school setting. W. Va. State Bd. of Educ. v. Barnette, 319

U.S. 624, 634 (1943). This line of authority explains why the First Amendment

prohibits public schools from: (1) expelling students who refuse to recite the Pledge of

Allegiance, id. at 642; (2) suspending students for wearing black armbands to school to

protest the Vietnam War, at least where there is no indication that the students’ actions

will “materially and substantially interfere with the requirements of appropriate

discipline in the operation of the school,” Tinker, 393 U.S. at 509; and (3) withholding

funding for the publications of a student organization because the publication expresses

a religious viewpoint, Rosenberger, 515 U.S. at 835.

In reconciling these principles, the Supreme Court tells us that “First Amendment

rights” must be “applied in light of the special characteristics of the school

environment.” Tinker, 393 U.S. at 506. That is somewhat helpful. More helpful is this:

Public educators may limit “student speech in school-sponsored expressive activities so

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long as their actions are reasonably related to legitimate pedagogical concerns.”

Hazelwood, 484 U.S. at 273. The neutral enforcement of a legitimate school curriculum

generally will satisfy this requirement; the selective enforcement of such a curriculum

or the singling out of one student for discipline based on hostility to her speech will not.

See Christian Legal Soc’y, 130 S. Ct. at 2987–88; Axson-Flynn v. Johnson, 356 F.3d

1277, 1289–93 (10th Cir. 2004).

The Hazelwood test, it is true, arose in the context of speech by high school

students, not speech by college or graduate students. But for the same reason this test

works for students who have not yet entered high school, Curry ex rel. Curry v.

Hensiner, 513 F.3d 570, 576–78 (6th Cir. 2008) (elementary school); Settle v. Dickson

Cnty. Sch. Bd., 53 F.3d 152, 155 (6th Cir. 1995) (junior high school), it works for

students who have graduated from high school. The key word is student. Hazelwood

respects the latitude educational institutions—at any level—must have to further

legitimate curricular objectives. All educators must be able “to assure that participants

learn whatever lessons the activity is designed to teach.” Hazelwood, 484 U.S. at 271.

Just as a junior high school English teacher may fail a student who opts to express her

thoughts about a once-endangered species, say a platypus, in an essay about A Tale of

Two Cities, see Settle, 53 F.3d at 155, so a law professor may fail a student who opts to

express her views about Salvador Dali and the fourth dimension in a torts exam. That

the First Amendment protects speech in the public square does not mean it gives students

the right to express themselves however, whenever and about whatever they wish on

school assignments or exams. “A school need not tolerate student speech that is

inconsistent with its basic educational mission.” Hazelwood, 484 U.S. at 266. Nothing

in Hazelwood suggests a stop-go distinction between student speech at the high school

and university levels, and we decline to create one. Hosty v. Carter, 412 F.3d 731, 734

(7th Cir. 2005) (en banc) (applying Hazelwood in university setting); see also Keeton v.

Anderson-Wiley, No. 10-13925, ___ F.3d ___, 2011 WL 6275932, at *7–8 (11th Cir.

December 16, 2011) (same); Axson-Flynn, 356 F.3d at 1289 (same); Brown v. Li, 308

F.3d 939, 949 (9th Cir. 2002) (same). To our knowledge, just one circuit has gone the

other way—and that in a footnote, Student Gov’t Ass’n v. Bd. of Trustees of Univ. of

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Mass., 868 F.2d 473, 480 n.6 (1st Cir. 1989), and even then based on what seems to be

a misconception that Hazelwood decided the issue (it did not), see Hazelwood, 484 U.S.

at 273 n.7.

By requiring restrictions on student speech to be “reasonably related to legitimate

pedagogical concerns,” Hazelwood allows teachers and administrators to account for the

“level of maturity” of the student. 484 U.S. at 271. Although it may be reasonable for

a principal to delete a story about teenage pregnancy from a high school newspaper, id.

at 274–75, the same could not (likely) be said about a college newspaper. “To the extent

that the justification for editorial control depends on the audience’s maturity, the

difference between high school and university students” makes all the difference. Hosty,

412 F.3d at 734.

Nor, it is worth adding, does the university setting invariably mean that educators

have less discretion over their curriculum and class-related speech. It may be true that

university students can handle more mature themes, but it is also true that they are not

forced to be there, something that cannot be said about most students at public high

schools. A prospective university student has the capacity to learn what a curriculum

requires before applying to the school and before matriculating there. When a university

lays out a program’s curriculum or a class’s requirements for all to see, it is the rare day

when a student can exercise a First Amendment veto over them.

Hazelwood also features a question crucial to the resolution of all school-speech

cases, whether at the high school or university level: Whose speech is it? The closer

expression comes to school-sponsored speech, the less likely the First Amendment

protects it. Hazelwood, 484 U.S. at 271, 273. And the less the speech has to do with the

curriculum and school-sponsored activities, the less likely any suppression will further

a “legitimate pedagogical concern[],” which is why the First Amendment permits

suppression under those circumstances only if the speech causes “substantial disruption

of or material interference with school activities.” Tinker, 393 U.S. at 514. To be

concrete, Barnette involved forced individual expression that happened to occur in a

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school, while Hazelwood involved restricted student expression through the school’s

newspaper.

A university’s control over curricular speech comes with one other limitation.

Although educators may “limit[]” or “grade[] speech in the classroom in the name of

learning,” and although they may control their own speech and curriculum, the First

Amendment does not permit educators to invoke curriculum “as a pretext for punishing

[a] student for her . . . religion.” Settle, 53 F.3d at 155. Even in the context of a secular

university, religious speech is still speech, and discriminating against the religious views

of a student is not a legitimate end of a public school. See Axson-Flynn, 356 F.3d at

1293.

B.

Gauged by these requirements, Ward’s free-speech claim deserves to go to a jury.

Although the university submits it dismissed Ward from the program because her request

for a referral violated the ACA code of ethics, a reasonable jury could find

otherwise—that the code of ethics contains no such bar and that the university deployed

it as a pretext for punishing Ward’s religious views and speech.

The ACA code of ethics, in the first place, does not prohibit values-based

referrals like the one Ward requested. Consider the two provisions Ward allegedly

violated. The first one says:

Counselors [1] are aware of their own values, attitudes, beliefs, and

behaviors and [2] avoid imposing values that are inconsistent with

counseling goals. [3] Counselors respect the diversity of clients, trainees,

and research participants.

R. 1-4 at 2. What exactly did Ward do wrong in making the referral request? If one

thing is clear after three years of classes, it is that Ward is acutely aware of her own

values. The point of the referral request was to avoid imposing her values on gay and

lesbian clients. And the referral request not only respected the diversity of practicum

clients, but it also conveyed her willingness to counsel gay and lesbian clients about

other issues—all but relationship issues—an attitude confirmed by her equivalent

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concern about counseling heterosexual clients about extra-marital sex and adultery in a

values-affirming way.

The second provision says:

Counselors [1] do not condone or engage in discrimination based on 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.

[2] Counselors do not discriminate against clients, students, employees,

supervisees, or research participants in a manner that has a negative

impact on these persons.

R. 14-7 at 59. Here too, what did Ward do wrong? 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.

Nor did the referral request have a “negative impact” on the client. Quite the

opposite, as the client never knew about the referral and perhaps received better

counseling than Ward could have provided.

Not only did Ward’s referral request respect these provisions, but another

provision of the code of ethics expressly permits values-based referrals. “If counselors

determine an inability to be of professional assistance to clients,” the code says that they

may refer them. R. 14-7 at 50. As a specific application of this principle, one

implicating secular and faith-based values, the code allows counselors to “choose to

work or not work with terminally ill clients who wish to explore their end-of-life

options.” R. 14-7 at 49. Consistent with these provisions, Ward’s expert, Dr. E. Warren

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Throckmorton, the former chairman of the American Mental Health Counselors

Association’s ethics committee (and a former president of the organization), said that

Ward’s request to refer this client complied with the code.

Several of the textbooks used in Ward’s classes likewise say that sound

counseling practices permit values-based referrals. One textbook, Interviewing and

Change Strategies for Helpers, says that “some value judgments by both helper and

client may be inevitable . . . . If the client selects goals that severely conflict with the

helper’s values . . . the helper may decide to refer the client.” R. 79-5 at 6. Another

textbook, Becoming a Helper, says that “the assumption that counseling is value-neutral

is no longer tenable,” R. 79-3 at 8, and quotes a 2003 study finding that some forty

percent of professional counselors have referred clients due to values conflicts over

sexual practices.

Even the university’s expert, Dr. David Kaplan, the American Counseling

Association’s Chief Professional Officer, was not of one mind on the point. He said one

thing in his expert report—that “refusing to counsel someone on issues related to sexual

orientation is a clear and major violation of the . . . ACA Code of Ethics.” R. 82-9 at 5.

But he said something else in another forum—that many professional counselors are

willing to refer clients “at the drop of a hat” and that he knows many counselors who

refer gay and lesbian clients when they want to talk about their relationships. R. 99-2.

That the code of ethics permits referrals is consistent with a separate policy of

the ACA, also embraced by the university and also supportive of referrals. The ACA

discourages conversion therapy—helping a client convert from one sexual orientation

to another—on the theory that it is unproven and may do more harm than good for a

client. In view of this policy, it makes sense to allow a student, concerned about her

capacity to stay neutral if a client shows an interest in conversion therapy, to refer clients

seeking such therapy. Several professors said that a student counselor would be

permitted to make such a referral. See Francis Dep., R. 82-7 at 91-93; Dugger Dep., R.

82-6 at 80-81.

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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. Reply Br. at

13. 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,” R. 14-9 at

15, 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.” Id.

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. Worse, there are at least two settings where the university permits

students—in practicum—to have a say over whom they counsel. The school permits

students to request certain types of clients to counsel—what you might call a yes-referral

policy—and the school will honor the request. See R. 82-7 at 43–45. Why a school

would honor student requests to counsel clients with certain types of problems but refuse

requests not to counsel clients with certain types of problems is not self-evident. The

record confirms at least one instance, moreover, when the school permitted a practicum

referral, allowing a grieving student to refrain from counseling a grieving client. See id.

at 45–46. The university demurs, claiming this was not a “referral” but a “single

incident of non-assignment.” Reply Br. at 10. No matter the label, the incident calls into

question the basis for the university’s actions. At the very least, it shows that the

counseling department was willing to avoid unsuitable student-client matches in some

instances. Why treat Ward differently? That her conflict arose from religious

convictions is not a good answer; that her conflict arose from religious convictions for

which the department at times showed little tolerance is a worse answer.

On top of the absence of a written policy barring referrals in the practicum class,

there is plenty of evidence that the only policy governing practicum students was the

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ACA code of ethics, which as shown contemplates referrals. Ward says that her

professors told her that “when you get to practicum, you’re supposed to use everything

that has been taught to you in previous courses,” including the code of ethics. R. 69-3

at 137. The professors do not say otherwise. During the formal review, Callaway

explained that “students have the same obligation to clients as those required of

professional counselors” and that “[c]ounselors in training have a responsibility to

understand and follow the ACA code of ethics.” R. 1-5 at 2. Dugger concurred: “[A]ll

students in [the] counseling program are informed . . . that they are expected to adhere

to the ACA code of ethics. Ms. Ward . . . would also have been informed of this via the

practicum manual.” Id. at 5. 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.

A reasonable jury also could find evidence of religious-speech discrimination

from the formal review. The inquiry was not a model of dispassion. Many of the

participants’ comments and questions focused on Ward’s beliefs and her religious

objection to affirming same-sex relationships. Professor Dugger said that Ward

“communicated an attempt to maintain [her] belief system and [her] behaviors,” id. at

8, and dismissed the religious basis of Ward’s objections: She offered her “professional

opinion” that Ward was “selectively using her religious beliefs in order to rationalize her

discrimination against one group of people” because Ward said that she could “set aside

her religious values” and counsel clients about things such as “abortion, child abuse, and

murder” but “could not set aside her religious values in order to effectively counsel non-

heterosexual clients.” Id. at 5–6. This line of inquiry suggests a distinction between

secular values and spiritual ones, with a preference for the former over the latter.

Besides, the reason why Ward (in Professor Dugger’s words) could “set aside her

religious values” in counseling clients about “abortion, child abuse, and murder” is

because the university likely would not insist that she affirm the values underlying this

conduct.

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Pressing these points, Dugger asked Ward whether she would “see [her] brand

of Christianity as superior to” that of a Christian client who viewed her faith differently.

Id. at 28. In the same vein, Professor Marx queried “how someone with such strong

religious beliefs [as Ward’s] would enter a profession that would cause [her] to go

against those beliefs . . . by its stated code of ethics.” Id. at 31. And Professor Francis

took Ward “on a little bit of a theological bout,” id. at 28, asking whether she believed

that “anyone [is] more righteous than another before God?” and whether, if Ward’s

stated beliefs were true, “doesn’t that mean that you’re all on the same boat and

shouldn’t [gays and lesbians] be accorded the same respect and honor that God would

give them?” Id. at 29.

These statements represent the contemporaneous thoughts of the decision-makers

who dismissed Ward, and they permit the inference that Ward’s religious beliefs

motivated their actions, particularly in the absence of a formal policy barring referrals.

A recent decision from the Tenth Circuit helps to show why. Christina Axson-Flynn was

a student in the University of Utah’s actor training program. Axson-Flynn, 356 F.3d at

1280. As a Mormon, she refused to say aloud portions of scripts that used curse words

or took the Lord’s name in vain. Id. at 1281. Faculty members pushed back. They told

her that she should “talk to some other Mormon girls who are good Mormons, who don’t

have a problem with” adhering to scripts as written, and that she would either have to

“modify [her] values” or leave the program. Id. at 1282. The Tenth Circuit held that the

faculty members’ statements created “a genuine issue of material fact as to whether

[their] justification for script adherence was truly pedagogical or whether it was a pretext

for religious discrimination.” Id. at 1293.

The same is true here. Many of the faculty members’ statements to Ward raise

a similar concern about religious discrimination. 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. A university cannot

compel a student to alter or violate her belief systems based on a phantom policy as the

price for obtaining a degree. Cf. Barnette, 319 U.S. at 642.

Nos. 10-2100/2145 Ward v. Polite et al. Page 16

III.

Ward independently claims that the University “prohibit[ed] the free exercise”

of her “religio[us]” faith. U.S. Const. amend. I. Under this guarantee, public authorities

may enforce neutral and generally applicable rules and may do so even if they burden

faith-based conduct in the process. That is why Oregon could deny unemployment

benefits to two members of a Native American tribe found guilty of using a proscribed

drug, peyote, even when they used the substance for sacramental purposes. Employment

Div. v. Smith, 494 U.S. 872, 890 (1990). The rule comes with an exception. If the law

appears to be neutral and generally applicable on its face, but in practice is riddled with

exemptions or worse is a veiled cover for targeting a belief or a faith-based practice, the

law satisfies the First Amendment only if it “advance[s] interests of the highest order and

[is] narrowly tailored in pursuit of those interests.” Church of Lukumi Babalu Aye, Inc.

v. City of Hialeah, 508 U.S. 520, 546 (1993). That is why the City of Hialeah (Florida)

could not enforce ordinances that purported to be neutral and generally applicable on

their face—regulating the keeping and killing of animals—but in practice targeted the

adherents of one faith (the Santeria religion) and the actions of one faith (animal

sacrifices). Id. at 524–25, 533–35.

The exception rather than the rule governs Ward’s case. On its face, the ACA

code of ethics sets forth neutral and generally applicable policies, and the university has

ample authority to adopt these policies, including the anti-discrimination provisions, for

the school’s graduate counseling program. What poses a problem is not the adoption of

an anti-discrimination policy; it is the implementation of the policy, permitting secular

exemptions but not religious ones and failing to apply the policy in an even-handed,

much less a faith-neutral, manner to Ward.

The university defendants, as shown, cannot point to any written policy that

barred Ward from requesting this referral. Not the code of ethics, not the school’s anti-

discrimination policy, not even the course description of the practicum—none of the

natural havens for such a written policy contains one.

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Considerable evidence, as also shown, suggests that the ethics code permits

values-based referrals. According to the university’s textbooks, Ward’s expert (Dr.

Throckmorton) and even to some of the writings of the university’s expert (Dr. Kaplan),

such referrals are not out of custom but have become de rigueur. That is particularly true

in the context of values conflicts about sexual practices, where one study indicated that

forty percent of counselors had referred clients on this basis. Corey & Corey, Becoming

a Helper (5th ed. 2007) at 235–36, R. 79-4 at 6-7. Several professors also testified that

a counselor would be permitted, if not encouraged, to refer a gay or lesbian client

seeking conversion therapy. See Francis Dep., R. 82-7 at 91–93; Dugger Dep., R. 82-6

at 80–81.

The code of ethics also expressly permits counselors to refer “terminally ill

clients who wish to explore their end-of-life options.” R. 14-7 at 49. This is because,

as the code acknowledges, “end-of-life decisions” involve weighty “personal” and

“moral” issues. Id. Yet end-of-life decisions are heavily influenced by one’s

“religion/spirituality” and one’s “culture,” each of which is covered by the anti-

discrimination policy. R. 14-7 at 59. Such decisions surely come within Professor

Callaway’s broad definition of the term “culture,” which she interprets to mean “the way

we see things, the way we do things, what seems normal to us.” Callaway Dep., R. 82-5

at 42. To refer a client who, due to his religion or culture, seeks to end his life in a

particular way would seem to run afoul of the anti-discrimination policy to the same

degree that Ward’s actions in this case ran afoul of the policy. Yet the university permits

one referral but not the other.

Counselors likewise may turn away—refer—clients who cannot pay for their

services. See Dugger Dep., R. 82-6 at 58–59; Francis Dep., R. 82-7 at 64.

Understandable though that policy may be, it appears to violate another feature of the

ethics code, which forbids discrimination based on “socioeconomic status.” R. 14-7 at

59. The policy thus seems to permit referrals for secular—indeed mundane—reasons,

but not for faith-based reasons.

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Even if the code of ethics permitted Ward’s referral request, the University says

that the department had a policy of disallowing any referrals during practicum. Where?

The record, as shown, contains no evidence of such a policy. The university cannot

point to any articulation of it before Ward’s enrollment in the practicum. And if such

a policy existed, why didn’t Ward’s instructor tell her about it when Ward made the

request and why did the instructor permit the referral? Ample evidence supports the

theory that no such policy existed—until Ward asked for a referral on faith-based

grounds.

This ad hoc application of the anti-discrimination policy stands in marked

contrast to Kissinger v. Board of Trustees of Ohio State University, 5 F.3d 177 (6th Cir.

1993), where we rejected a veterinary student’s free-exercise challenge to a requirement

that she complete a course in which students had to operate on live animals. Id. at

180–81. Unlike the university’s sotto voce referral policy, the veterinary program in

Kissinger advised all matriculating students that they would be required to operate on

live animals and the policy was neutral and generally applicable. The complaining

student could not identify any circumstances in which a student was allowed, or would

be allowed, to graduate without completing the course. Id. at 179–81.

At some point, an exception-ridden policy takes on the appearance and reality

of a system of individualized exemptions, the antithesis of a neutral and generally

applicable policy and just the kind of state action that must run the gauntlet of strict

scrutiny. See Smith, 494 U.S. at 884; Lukumi Babalu, 508 U.S. at 537. A double

standard is not a neutral standard. See Fraternal Order of Police Newark Lodge No. 12

v. City of Newark, 170 F.3d 359, 365–67 (3d Cir. 1999) (Alito, J.) (invalidating a police

department policy that barred officers from growing beards and holding that the policy

could not take refuge in the Smith safe harbor because it excepted officers who could not

shave for medical reasons but not officers who could not shave for religious reasons).

The university does not argue that its actions can withstand strict scrutiny, and

we agree. 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

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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. See Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 432–37 (2006). Neither does the

unsubstantiated possibility that the counseling program could lose its accreditation

provide a compelling interest. Other than generalized statements that the program must

teach the ACA code of ethics in order to maintain accreditation (the same code that

contemplates values-based referrals), there is no concrete evidence that Ward’s referral

request placed the program’s accreditation in danger. A compelling interest demands

more. See id. at 437–38 (the government’s generalized assertion that allowing religious

use of hoasca, a sacramental tea that contains a hallucinogenic substance, would violate

international treaty obligations did not establish a sufficiently compelling interest).

IV.

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.

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V.

A recent decision of the Eleventh Circuit, when read together with our decision,

helps to illustrate the permissible and impermissible ways to handle the vexing issues

that occasionally arise in enforcing anti-discrimination policies through a school

curriculum. Also at issue in Keeton v. Anderson-Wiley, ___ F.3d ___, No. 10-13925,

2011 WL 6275932 (11th Cir. Dec. 16, 2011), was a graduate-level counseling program

and the school’s enforcement of an anti-discrimination policy in the context of a claim

of discrimination based on sexual orientation. The Eleventh Circuit ruled for Augusta

State University, rejecting a student’s appeal of a preliminary-injunction decision in

which the trial court refused to require the school to re-admit her after she refused to

complete a remediation plan. Id. at *13.

At one level, the two decisions look like polar opposites, as a student loses one

case and wins the other. But there is less tension, or for that matter even disagreement,

between the two cases than initially meets the eye. The procedural settings of the two

cases differ. In Keeton, the district court made preliminary fact findings after holding

a hearing in which both sides introduced evidence in support of their claims. Id. at *1–2.

Not only are there no trial-level fact findings here, but Ward also gets the benefit of all

reasonable factual inferences in challenging the summary-judgment decision entered

against her.

The two claimants’ theories of constitutional protection also are miles apart.

Keeton insisted on a constitutional right to engage in conversion therapy—that is, if a

“client discloses that he is gay, it was her intention to tell the client that his behavior is

morally wrong and then try to change the client’s behavior.” Id. at *2. That approach,

all agree, violates the ACA code of ethics by imposing a counselor’s values on a client,

a form of conduct the university is free to prohibit as part of its curriculum. Instead of

insisting on changing her clients, Ward asked only that the university not change

her—that it permit her to refer some clients in some settings, an approach the code of

ethics appears to permit and that no written school policy prohibits. Nothing in Keeton

indicates that Augusta State applied the prohibition on imposing a counselor’s values on

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the client in anything but an even-handed manner. Not so here, as the code of ethics,

counseling norms, even the university’s own practices, seem to permit the one thing

Ward sought: a referral.

The two decisions in the end share the same essential framework and reasoning.

They both apply Hazelwood to curricular speech at the university level, and they both

show that the even-handed enforcement of a neutral policy is likely to steer clear of the

First Amendment’s free-speech and free-exercise protections. Both decisions also are

consistent with Christian Legal Society, which considered whether a Christian

organization at a law school could insist that its members adhere to certain faith-based

codes of conduct. 130 S. Ct. at 2978. The Court held that the law school’s anti-

discrimination policy, requiring registered student organizations to accept all comers,

did not violate the First Amendment on its face, yet it remanded the case to determine

whether the school selectively enforced the policy against some organizations but not

others. Id. at 2994–95. While Keeton involved Augusta State’s across-the-board

application of an ethical rule that prohibits counselors from imposing their values on

clients, today’s case reveals evidence that Eastern Michigan University selectively

enforced a no-referral policy against Ward.

VI.

That leaves two loose ends. The university defendants cross-appeal the district

court’s decision denying them qualified immunity. Qualified immunity shields

government officials from monetary damages, not from injunctive relief, see Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); Wood v. Strickland, 420 U.S. 308, 314 n.6 (1975),

and Ward asks for both. There is no basis for dismissing the injunction claims against

the university defendants. As for the money-damages claims, the question is whether

the university defendants violated “clearly established . . . constitutional rights of which

a reasonable person would have known.” Harlow, 457 U.S. at 818. If the jury finds that

the university dismissed Ward from the counseling program because of hostility to her

religious speech and beliefs, that violates clearly established free-exercise and free-

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speech rights. See Christian Legal Soc’y, 130 S. Ct. at 2987; Lukumi Babalu, 508 U.S.

at 532; Settle, 53 F.3d at 155.

Ward also appeals the district court’s dismissal of her official-capacity claims

against the university’s President and the members of the Board of Regents. The district

court dismissed these defendants because they did not play a meaningful role in Ward’s

dismissal. On appeal, Ward has not shown otherwise. The problem in this case is not

a facially unconstitutional policy, as Ward submits, but the potentially improper

implementation of that policy by some members of the university and not others. The

district court properly accounted for this distinction.

VII.

For these reasons, we reverse and remand to the district court for further

proceedings.