Advocates Urge White House, Congress To Broaden Teen Pregnancy Prevention Initiative

Jodi Jacobson

Over 175 state and national organizations are pressing the Obama White House and Congress to replace silo-ed sex ed programs with truly comprehensive efforts to reduce teen pregnancy and infection.

A feature article published on Rewire this morning, June 29th, 2009, explores the links between sexual violence and coercion and patterns of contraceptive use, unintended pregnancy, and sexually transmitted infections in teens.  The article cites the work of Elizabeth Miller, M.D., Ph.D.,
an assistant professor of pediatrics at the University of California,
Davis, whose work with colleagues at the Harvard School of Public Health shows that intimate partner violence plays a critical but largely overlooked role in high rates of adverse sexual and reproductive health outcomes among teens.

Rates of unintended pregnancy among teens have been on the upswing the past few years.  "We also have an epidemic of sexually
transmitted diseases among youth and every hour at least one young person
acquires HIV in our country," wrote Bill Smith, Vice President of Public Policy at the Sexuality Information and Education Council of the United States and James Wagoner, President of Advocates For Youth, in a recent feature article for Rewire.

After years of funding abstinence-only-until marriage programs, there is virtually unanimous agreement among researchers and advocates about doing far more to
address teen sexuality, prevent unintended pregnancy and sexually
transmitted infections, and prevent the violence and coercion by intimate
partners among youth that contribute to these problems. The complexities and synergies between the factors that result in adverse sexual and reproductive health outcomes among teens must be addressed as they are experienced by real people in their everyday lives–comprehensively.  Most experts agree that the solutions lie in sophisticated and integrated approaches to sexuality and reproductive health education and service delivery in schools and communities. 

According to Miller, for example, a critical place to start addressing
these links, is within sex education programs.  Today, she says:

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Most schools are
barely doing sex ed and basic health. It doesn’t make sense to talk about substance
abuse use this week and pregnancy next week and STDs the following week
and then healthy relationships the week after that. We need
to be talking about how they’re all linked together.

vision: stop "siloing" the issues that affect teen sexual health and

During the campaign, then-candidate Obama appeared to agree.  And after the election, a great deal of hope was placed in the Obama Administration’s promise to create comprehensive, evidence-based approaches to these problems.

It then comes as something of a surprise that a coalition of over 175 state and national organizations representing advocates, service providers and researchers concerned with comprehensive sex ed now finds itself pressing the White House and Congress to get rid of these silos and is pushing back against what they see as the limited scope of the Obama Administration’s new Teen Pregnancy Prevention Initiative.  The approach taken by the Administration is even more puzzling when placed in a global context: Recognizing the problems with silo-ed approaches to global health, for example, the Administration has proposed a far more integrated approach to global health programs than in the past.

As Congress turns to appropriations for Fiscal Year 2010, the coalition– which includes local groups such as the AIDS Taskforce of Greater Cleveland and Chicago Women’s AIDS Project; state groups such as the Minnesota AIDS Project, Pennsylvania NOW, and the South Carolina Coalition for Healthy Families; and national groups such as the Black Women’s Health Imperative and United Church of Christ among many others–is working strenuously to ensure that both the Administration and Congress commit to a broader program than originally called for in the President’s budget.

In his first budget request to Congress, President Obama recommended elimination of the abstinence-only programs of
the past, replacing these with a new Teen Pregnancy Prevention
Initiative.  As Rewire  reported earlier, the budget request abolished both Title V and the Community-Based Abstinence Education Program (CBAE),
which provided large pots of money to community-based organizations for
now-discredited abstinence-only-until-marriage programs. Getting rid of
these programs and replacing them with evidence-based initiatives represented a
major victory for public health and human rights, as did the elimination of the narrow “8-point”
definition that has long governed abstinence-only program funding. 

In place of abstinence-only programs, the President’s budget recommended that roughly $170 million be spent on a new Teen Pregnancy
Prevention initiative.  If enacted by Congress as recommended by the White House, $110 million of that total would be used to
support "community-based and faith-based efforts to reduce teen
pregnancy using evidence-based and promising models."  An additional $50
million in funding would be granted to the states for programming, and
the rest to research, evaluation, and management.

The majority of groups in the public health and sexual and
reproductive health advocacy communities applauded the elimination of
abstinence-only programs, but were deeply disappointed at the narrow scope of the new initiative, in part, they argued because the programs eligible for funding would address only one outcome (unintended pregnancy), deny funding to programs addressing a wider range of outcomes, and ignore the needs of gay, lesbian and transgender youth, among other concerns.  In fact, they argue, the proposed approach only repeats past mistakes and the vague direction given by the Administration leaves the program vulnerable to changes in the balance of power in Congress. 

A letter sent to the White House and Congress by the informal coalition of groups stated:

We are encouraged by the significant step forward that the
President’s Fiscal Year 2010 budget represents in supporting
evidence-based interventions.  After $1.5 billion of wasteful spending
on ineffective abstinence-only-until-marriage programs, we have an
opportunity to craft a program that addresses the root issues that help
teens make responsible decisions and keep them safe and healthy.  And
with that opportunity comes the responsibility to take a holistic
approach that includes both disease and teen pregnancy prevention

Now, however, is the time, according to the letter, to take a more comprehensive approach to empowering, informing and training all young people to make healthy decisions and to act responsibly about their relationships and their sexual health.

As currently written, states a memo sent by members of the Coalition to the Office of Management and Budget (OMB),

the President’s initiative could be interpreted to limit eligible programs to those with the primary intention of preventing teen pregnancy.   If not expanded, the language may be interpreted to preclude other evidence-based prevention programs that were originally designed to reduce rates of sexually transmitted infection, including HIV/AIDS, but that also have been shown to have a positive impact on the behaviors associated with teen pregnancy prevention. 

The narrow focus of the President’s teen pregnancy initiative caught the advocacy community by surprise in part because the informal coalition of groups, which had been meeting for months, drafted consensus language and recommendations and submitted these to the White House well in advance of the release of the budget.  Given the open-door policy of the White House in working with the communities in question, the broad-base of the coalition, the consensus achieved, and the signals given by key Administration officials, members of the coalition assumed that the case had been made for the replacement of narrow abstinence-only programs with broader, evidence-based approaches that would address teen health wholistically.

In fact, said Smith of SIECUS, the confusion was amplified by assurances from White House officials after release of the budget that "they never intended for this program to be so narrowly conceived." 

But, according to another coalition member speaking on condition of anonymity, White House officials, representatives of the Department of Health and Human Services (HHS), and representatives of OMB appeared to be operating under different assumptions and communicating different messages, definitions and descriptions of the initiative to Congress, the community, and the press regarding the scope of the new program, how it would be administered, and what outcomes it would seek to achieve.  Efforts to gain clarity on the program for this article from public affairs staff at the White House, HHS and OMB were unsuccessful.

Only one organization, the National Campaign to Prevent Teen and Unplanned Pregnancy, has come out publicly supporting the intiative in its current form.  The Campaign, which did not participate in earlier coalition efforts to create consensus, and was not a signatory to the broader community letter, circulated a brief in reaction to the coalition’s efforts to broaden the initiative warning that "discussions about this bold proposal must not become so testy that policymakers who already face a whole host of pressing challenges turn away from this area entirely."  Members of the larger coalition speaking off the record for this article expressed deep frustration at what they saw as the effort of one organization to hinder efforts of a broad-based coalition to achieve urgently needed changes in approaches to teen health for which many have been working for more than a decade.  A request for further comment by the Campaign on these issues and to understand the organization’s objection to a broader focus was declined. 

Smith, Wagoner and others are deeply concerned about the limited scope of the current initiative in light of the challenges faced in promoting better sexual and reproductive health outcomes among teens and young adults, and because there is currently no coordinated plan to create a consistent effort to reach teens through school-based programs, the one place where the greatest level of consistency in program design and effort can be achieved through reaching the greatest number of teens.

These concerns are heightened by several considerations.  One is timing. The coalition of groups has asked the White House Domestic Policy Council to provide clarity on the scope of the program and their commitment to broadening it.  Participants in recent meetings on this issue indicated that they were "definitely heard by the Administration staff, but were told that a response is not forthcoming immediately."  Smith says that "until the White House makes clear its intentions to broaden the program, the message to Congress is one of a narrow approach, which leaves us in a precarious position as we go into appropriations."

Another concern is that some critical public health initiatives are already short of funds, and because of the narrow scope of the new initiative,  programs considered critical to improving teen health outcomes will have greater constraints if they are not eligible for funding under the proposed teen initiative.

Given the spread of HIV and other sexually transmitted infections among
adolescents, notes Donna Crews, Director of Government Affairs at the AIDS Action
Council, "An effort created within a ‘teen pregnancy silo’ is too
narrow" to address this critical areas of public health. 

Crews cites the flatlining of funding for HIV prevention and
surveillance by the Centers for Disease Control as one part of the
broader problem. Between Fiscal Years (FY) 2006 and 2007, for example, funding
for HIV prevention and surveillance rose from $651 million to nearly
$696 million.  In FY 2008, however, that funding fell to $692
million and was flatlined in FY 2009, at a time when HIV infections are
rising among certain populations, including among youth.

funding constraints would be compounded if HIV and STI prevention are
left out of the new initiative.  Moreover, separate streams of funding are part of the problem to begin with so the solution sought is to have an integrated program, not increases in various silos for school-based efforts per se. 

A memo prepared by SIECUS and
Advocates for Youth notes that at least 10 evidence-based interventions
currently being advanced by the Centers for Disease Control and others could not be funded under
the proposed structure because they are not teen
pregnancy prevention programs per se, but rather HIV/AIDS prevention
initiatives that result in the "same salutary behavioral outcomes that
reduce risk behaviors and that contribute to teen pregnancy and
acquisition of STIs, including HIV," according to Smith.

Examples of programs that would not be eligible include:

Becoming a Responsible Teen: A program that combines HIV/AIDS education with behavioral skills training, including assertion, refusal, self-management, problem solving, risk recognition, and correct condom use. Teens learn to clarify their own values about sexual decisions and to practice skills to reduce sexual risk-taking.  Outcomes include delayed initiation of sex; reduced frequency of sex; reduced number of partners; and increased use of condoms.

¡Cuidate!: This HIV risk reduction curriculum was culturally adapted from Be Proud! Be Responsible! It incorporates salient aspects of Latino culture, especially the importance of family and gender role expectations. It presents both abstinence and condom use as culturally acceptable and effective ways to prevent STIs, including HIV. Outcomes include   reduced frequency of sex; reduced number of partners; reduced incidence of unprotected sex; and increased use of condoms.

HIV Risk Reduction for African American and Latina Adolescent Women, a skills-based HIV and STI risk reduction intervention designed for use in an adolescent medicine clinic that also provides young clients with confidential and free family planning services. The program teaches young women skills necessary to use condoms and addresses personal vulnerability and the heightened HIV risk facing young, inner-city Latinas and African American women. Outcomes include reduced number of partners; reduced incidence of unprotected sex; reduced incidence of STIs.

Crews and others agree that it is urgent to create comprehensive approaches to education and prevention among teens, in school and at the community level, because the money allocated for the program can be used more effectively to achieve several positive outcomes simultaneously, a concern greatly amplified by the current crisis in health care costs nationwide.

In their letter, the coalition is urging the Administration and Congress, to support the following:

1) Inclusive language that supports HIV/AIDS and other sexually transmitted infection programs in addition to teen pregnancy prevention.  

"Young people in this country need access to complete and comprehensive information that helps them make responsible and informed decisions," states the letter. "The current FY10 budget proposal focuses solely on preventing teen pregnancy and must be expanded to include the prevention of sexually transmitted infections. While teen pregnancy prevention is certainly important, it must not create an artificial barrier to investment in other critical interventions such as those that focus on HIV/AIDS education and prevention, healthy relationships, and comprehensive sex education.  By supporting overarching language that is inclusive of additional approaches, we can make sure that comprehensive programs are brought to scale that meet the diverse needs all young people in all communities, including lesbian, gay, bisexual, transgender, and questioning youth whose needs fall wholly outside of the narrow teen pregnancy prevention framework."

2) Specific and strategic investment in schools and school-based programs as a compliment to already stated support for community-based programs.

The letter states that "President Obama’s FY10 budget recognizes the need to support evidence-based intervention programs by working with community-based and faith-based organizations. These important institutions are critical for reaching young people, but must work alongside schools and school-based programs. Over the past several years, significant policy shifts and evidence-based programming in schools have created a unique and unprecedented opportunity to support a systemic change by assisting schools in institutionalizing comprehensive programs aimed at helping improve adolescent sexual behaviors.  The current language excludes important public entities, such as schools, from accessing funds under the new initiative.  Prioritizing schools in the new initiative can help ensure smart and multi-faceted investments toward a sustainable legacy to improve the health of our nation." 

3) Diversified investments among multiple existing government agencies that can work in communities as well as schools, particularly at the Centers for Disease Control and Prevention.

"The Administration’s current language maintains all of the funding at the Administration for Children and Families (ACF) within the Department of Health and Human Services," says the letter.  "Ensuring funding for evidence-based interventions through the CDC will allow for a greater diversification of the new initiative’s funding and can ensure that scarce resources are invested in federal agencies that have the capacity to successfully bring evidence-based interventions to scale immediately.  For example, the CDC’s Division of Reproductive Health and the Division of Adolescent School Health have proven track records in sex education programming for youth that is firmly rooted in public health practice.  Therefore, while ACF certainly should have a role in the new initiative to work with faith and community-based organizations, it must not come at the exclusion of the CDC’s proven prevention efforts that can help ensure success of the new initiative."

SIECUS, Advocates for Youth, and members of the coalition report that they are working collegially with the White House and Congress to urge this expansion in language and to hold the White House and Congress accountable for the investment in comprehensive sex education that is needed and for which the President has stated support.

"The three items we advance here," states the coalition letter, "and [which we] urge you to support, will move us closer to the type of change
that is needed in our nation’s approach to achieving a healthier and
safer generation of young people."


Commentary Politics

On Immigration, Major Political Parties Can’t Seem to Agree on What’s ‘Un-American’

Tina Vasquez

As far as immigration is concerned, neither the Democrats nor Republicans are without their faults, though positions taken at the conventions were clearly more extreme in one case than the other.

Read more of our coverage of the Democratic National Convention here.

Immigration has been one of the country’s most contentious political topics and, not surprisingly, is now a primary focus of this election. But no matter how you feel about the subject, this is a nation of immigrants in search of “el sueño Americano,” as Karla Ortiz reminded us on the first night of the Democratic National Convention (DNC). Ortiz, the 11-year-old daughter of two undocumented parents, appeared in a Hillary Clinton campaign ad earlier this year expressing fear that her parents would be deported. Standing next to her mother on the DNC stage, the young girl told the crowd that she is an American who wants to become a lawyer to help families like hers.

It was a powerful way to kick-start the week, suggesting to viewers Democrats were taking a radically different approach to immigration than the Republican National Convention (RNC). While the RNC made undocumented immigrants the scapegoats for a variety of social ills, from U.S. unemployment to terrorism, the DNC chose to highlight the contributions of immigrants: the U.S. citizen daughter of undocumented parents, the undocumented college graduate, the children of immigrants who went into politics. Yet, even the stories shared at the DNC were too tidy and palatable, focusing on “acceptable” immigrant narratives. There were no mixed-status families discussing their deported parents, for example.

As far as immigration is concerned, neither the Democrats nor Republicans are without their faults, though positions taken at the conventions were clearly more extreme in one case than the other. By the end of two weeks, viewers may not have known whether to blame immigrants for taking their jobs or to befriend their hardworking immigrant neighbors. For the undocumented immigrants watching the conventions, the message, however, was clear: Both parties have a lot of work to do when it comes to humanizing their communities.  

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“No Business Being in This Country”

For context, Republican presidential nominee Donald Trump and his running mate Mike Pence are the decidedly anti-immigrant ticket. From the beginning, Trump’s campaign has been overrun by anti-immigrant rhetoric, from calling Mexicans “rapists” and “killers” to calling for a ban on Muslim immigration. And as of July 24, Trump’s proposed ban now includes people from countries “compromised by terrorism” who will not be allowed to enter the United States, including anyone from France.

So, it should come as no surprise that the first night of the RNC, which had the theme of “Make America Safe Again,” preyed on American fears of the “other.” In this case: undocumented immigrants who, as Julianne Hing wrote for the Nation, “aren’t just drug dealers and rapists anymorenow they’re murderers, too.”

Night one of the RNC featured not one but three speakers whose children were killed by undocumented immigrants. “They’re just three brave representatives of many thousands who have suffered so gravely,” Trump said at the convention. “Of all my travels in this country, nothing has affected me more, nothing even close I have to tell you, than the time I have spent with the mothers and fathers who have lost their children to violence spilling across our borders, which we can solve. We have to solve it.”

Billed as “immigration reform advocates,” grieving parents like Mary Ann Mendoza called her son’s killer, who had resided in the United States for 20 years before the drunk driving accident that ended her police officer son’s life, an “illegal immigrant” who “had no business being in this country.”

It seemed exploitative and felt all too common. Drunk driving deaths are tragically common and have nothing to do with immigration, but it is easier to demonize undocumented immigrants than it is to address the nation’s broken immigration system and the conditions that are separating people from their countries of originconditions to which the United States has contributed. Trump has spent months intentionally and disingenuously pushing narratives that undocumented immigrants are hurting and exploiting the United States, rather than attempting to get to the root of these issues. This was hammered home by Mendoza, who finished her speech saying that we have a system that cares more about “illegals” than Americans, and that a vote for Hillary “puts all of our children’s lives at risk.”

There was also Maricopa County Sheriff Joe Arpaio, a notorious racist whose department made a practice of racially profiling Latinos and was recently found to be in civil contempt of court for “repeatedly and knowingly” disobeying orders to cease policing tactics against Latinos, NPR reported.

Like Mendoza, Arpaio told the RNC crowd that the immigration system “puts the needs of other nations ahead of ours” and that “we are more concerned with the rights of ‘illegal aliens’ and criminals than we are with protecting our own country.” The sheriff asserted that he was at the RNC because he was distinctly qualified to discuss the “dangers of illegal immigration,” as someone who has lived on both sides of the border.

“We have terrorists coming in over our border, infiltrating our communities, and causing massive destruction and mayhem,” Arpaio said. “We have criminals penetrating our weak border security systems and committing serious crimes.”

Broadly, the takeaway from the RNC and the GOP nominee himself is that undocumented immigrants are terrorists who are taking American jobs and lives. “Trump leaned on a tragic story of a young woman’s murder to prop up a generalized depiction of immigrants as menacing, homicidal animals ‘roaming freely to threaten peaceful citizens,’” Hing wrote for the Nation.

When accepting the nomination, Trump highlighted the story of Sarah Root of Nebraska, a 21-year-old who was killed in a drunk-driving accident by a 19-year-old undocumented immigrant.

“To this administration, [the Root family’s] amazing daughter was just one more American life that wasn’t worth protecting,” Trump said. “One more child to sacrifice on the altar of open borders.”

It should be noted that the information related to immigration that Trump provided in his RNC speech, which included the assertion that the federal government enables crime by not deporting more undocumented immigrants (despite deporting more undocumented immigrants than ever before in recent years), came from groups founded by John Tanton, a well-known nativist whom the Southern Poverty Law center referred to as “the racist architect of the modern anti-immigrant movement.”

“The Border Crossed Us”

From the get-go, it seemed the DNC set out to counter the dangerous, anti-immigrant rhetoric pushed at the RNC. Over and over again, Democrats like Congressional Hispanic Caucus Chair Rep. Linda Sánchez (D-CA) hit back hard against Trump, citing him by name and quoting him directly.

“Donald Trump believes that Mexican immigrants are murderers and rapists. But what about my parents, Donald?” Sánchez asked the crowd, standing next to her sister, Rep. Loretta Sánchez (D-CA). “They are the only parents in our nation’s 265-year history to send not one but two daughters to the United States Congress!”

Each speech from a Latino touched on immigration, glossing over the fact that immigration is not just a Latino issue. While the sentiments were positiveillustrating a community that is thriving, and providing a much-needed break from the RNC’s anti-immigrant rhetoricat the core of every speech were messages of assimilation and respectability politics.

Even in gutsier speeches from people like actress Eva Longoria, there was the need to assert that her family is American and that her father is a veteran. The actress said, “My family never crossed a border. The border crossed us.”

Whether intentional or not, the DNC divided immigrants into those who are acceptable, respectable, and worthy of citizenship, and those—invisible at the convention—who are not. “Border crossers” who do not identify as American, who do not learn English, who do not aspire to go to college or become an entrepreneur because basic survival is overwhelming enough, what about them? Do they deserve to be in detention? Do their families deserve to be ripped apart by deportation?

At the convention, Rep. Luis Gutiérrez (D-IL), a champion of immigration reform, said something seemingly innocuous that snapped into focus the problem with the Democrats’ immigration narrative.

“In her heart, Hillary Clinton’s dream for America is one where immigrants are allowed to come out of the shadows, get right with the law, pay their taxes, and not feel fear that their families are going to be ripped apart,” Gutiérrez said.

The Democratic Party is participating in an all-too-convenient erasure of the progress undocumented people have made through sheer force of will. Immigration has become a leading topic not because there are more people crossing the border (there aren’t) or because nativist Donald Trump decided to run for president, but because a segment of the population has been denied basic rights and has been fighting tooth and nail to save themselves, their families, and their communities.

Immigrants have been coming out of the shadows and as a result, are largely responsible for the few forms of relief undocumented communities now have, like Deferred Action for Childhood Arrivals, which allows certain undocumented immigrants who meet specific qualifications to receive a renewable two-year work permit and exemption from deportation. And “getting right with the law” is a joke at this point. The problem isn’t that immigrants are failing to adhere to immigration laws; the problem is immigration laws that are notoriously complicated and convoluted, and the system, which is so backlogged with cases that a judge sometimes has just seven minutes to determine an immigrant’s fate.

Becoming a U.S. citizen is also really expensive. There is a cap on how many people can immigrate from any given country in a year, and as Janell Ross explained at the Washington Post:

There are some countries, including Mexico, from where a worker with no special skills or a relative in the United States can apply and wait 23 years, according to the U.S. government’s own data. That’s right: There are people receiving visas right now in Mexico to immigrate to the United States who applied in 1993.

But getting back to Gutierrez’s quote: Undocumented immigrants do pay taxes, though their ability to contribute to our economy should not be the one point on which Democrats hang their hats in order to attract voters. And actually, undocumented people pay a lot of taxes—some $11.6 billion in state and local taxes last year, according to the Institute on Taxation and Economic Policy—while rarely benefiting from a majority of federal assistance programs since the administration of President Bill Clinton ended “welfare as we know it” in 1996.

If Democrats were being honest at their convention, we would have heard about their failure to end family detention, and they would have addressed that they too have a history of criminalizing undocumented immigrants.

The 1996 Antiterrorism and Effective Death Penalty Act and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, enacted under former President Clinton, have had the combined effect of dramatically increasing the number of immigrants in detention and expanding mandatory or indefinite detention of noncitizens ordered to be removed to countries that will not accept them, as the American Civil Liberties Union notes on its site. Clinton also passed the North American Free Trade Agreement, which economically devastated Mexican farmers, leading to their mass migration to the United States in search of work.

In 1990, then-Sen. Joe Biden introduced the Violence Against Women Act, which passed in 1994 and specifically excluded undocumented women for the first 19 of the law’s 22 years, and even now is only helpful if the victim of intimate partner abuse is a child, parent, or current/former spouse of a U.S. citizen or a permanent resident.

In addition, President Obama is called by immigrant rights advocates “deporter in chief,” having put into place a “deportation machine” that has sent more than two million migrants back to their country of origin, more than any president in history. New arrivals to the United States, such as the Central American asylum seekers coming to our border escaping gender-based violence, are treated with the same level of prioritization for removal as threats to our national security. The country’s approach to this humanitarian crisis has been raiding homes in the middle of the night and placing migrants in detention centers, which despite being rife with allegations of human rights abuses, are making private prison corporations millions in revenue.

How Are We Defining “Un-American”?

When writing about the Democratic Party, community organizer Rosa Clemente, the 2008 Green Party vice president candidate, said that she is afraid of Trump, “but not enough to be distracted from what we must do, which is to break the two-party system for good.”

This is an election like we’ve never seen before, and it would be disingenuous to imply that the party advocating for the demise of the undocumented population is on equal footing with the party advocating for the rights of certain immigrants whose narratives it finds acceptable. But this is a country where Republicans loudly—and with no consequence—espouse racist, xenophobic, and nativist beliefs while Democrats publicly voice support of migrants while quietly standing by policies that criminalize undocumented communities and lead to record numbers of deportations.

During two weeks of conventions, both sides declared theirs was the party that encapsulated what America was supposed to be, adhering to morals and values handed down from our forefathers. But ours is a country comprised of stolen land and built by slave labor where today, undocumented immigrants, the population most affected by unjust immigration laws and violent anti-immigrant rhetoric, don’t have the right to vote. It is becoming increasingly hard to tell if that is indeed “un-American” or deeply American.

Analysis Law and Policy

Do Counselors-in-Training Have the Right to Discriminate Against LGBTQ People?

Greg Lipper

Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”

A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.

There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.

The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.

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Keeton v. Anderson-Wiley

The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”

It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:

  • She would try to change the sexual orientation of gay clients;
  • If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
  • If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”

Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.

Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.

Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.

Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.

The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”

Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.

As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Ward v. Polite

The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.

Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] 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.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.

Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”

All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.

On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.

And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “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.” Thus, the problem was “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.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”

Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.

In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”

But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.

Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)

Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.

Cash v. Hofherr

The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.

The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.

But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.

All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.

In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.

Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”

That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.

But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.

Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.

More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.

* * *

The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attempts to challenge bans on “reparative therapy.”

The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.