A group of parents in Princeton, New Jersey, has come together to protest their school district's comprehensive sexuality ed program because they worry it promotes promiscuity and “alternative sexual activity.” The good news is even administrators seem to realize this is an old fight over settled issues.
A group of parents in Princeton, New Jersey, has come together to protest their school district’s current comprehensive sexuality education program because they worry it promotes condom use and “alternative sexual activity.” Calling themselves Parents for Sex Ed Choice, the group of 15 parents is not asking for the course to be removed from the school altogether, but is requesting that the school offer a separate abstinence-only class as a second option. As someone who has tracked controversies over sexuality education for almost 20 years, this feels like an old fight over a settled issue. The good news is that Princeton school officials seem to agree.
Princeton schools contract with HiTOPS, a local nonprofit that works with districts across the state to supplement the health education offered by teachers. The high school offers comprehensive sex education using a combination of lessons taught by school health teachers, HiTOPS adult health educators, and trained peer educators. Each year, health teachers work with HiTOPS to determine which topics will be covered by adults and peers. Typically, all sixth, seventh, eighth, ninth, and 11th graders receive two, 45-minute lessons taught by adult health educators, and ninth graders attend three peer-led workshops. (In New Jersey, tenth graders take driver’s education instead of health.) The peer leaders, who are juniors and seniors, take a year-long class for credit that meets every day. Parental permission is required for students to join the peer leader class. Parents also have the option of removing their child from the 45-minute workshops the peer educators lead.
Aileen Collins, president of Parents for Sex Ed Choice, thinks this program provides too much information, promotes condoms use, may be “psychologically damaging” to students, and is likely to increase sexual activity and promiscuity. She told theTimes of Trenton that she read the 900-page curriculum and was shocked by some of the language and graphics.
Elizabeth Casparian, executive director of HiTOPS, said she thinks that Collins is likely referring to the entire curriculum much of which is only used with peer leaders and not intended to be shared with younger students. Regardless, Casparian points out that the research has consistently come down on the side of more information. She told Rewire, “Research shows that abstinence-only education is not effective in helping young people who choose to be sexually active to protect themselves from pregnancy or disease, but a more comprehensive approach does seem to help young people make the decision to delay sexual intercourse.”
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Casparian is right. While many parents have feared that teaching young people about sexuality will encourage sexual activity, the research has shown otherwise. Young people who take classes that teach about both abstinence and contraception do not have sex sooner than their peers, do not have sex more frequently than their peers, and do not have more sexual partners than their peers. In fact, the opposite is true. Young people in these courses are more likely to delay the onset of sexual activity and have fewer partners. More importantly, they are more likely to use contraception when they do become sexually active.
Casparian explained why this might be the case: “Our model really uses peers to help young people make healthy decisions about their sexual behavior, including the choice to be abstinent, which is reinforced in every lesson.”
Still, Collins and her group do not think that abstinence is emphasized enough and are asking the school district to consider offering an abstinence-only program as well. Collins told theTimes that after looking at five other programs offered in the state, some secular, some religious, her group believes that the best choice for the alternative class is an abstinence-only curriculum called Yes You Can. According to the Sexuality Information and Education Council of the United States (SIECUS), the Yes You Can curricula series was created by Saint Michael’s Medical Center under the now-defunct federal grant program known as Community-Based Abstinence Education. Yes You Can was developed to help youth “buck the tide of an over-sexualized social climate” by offering information on “the benefits of waiting,” “the impact sexual decisions have on the future,” and “the differences between males and females,” among other topics.
It is unclear whether Yes You Can relies on fear and shame like so many abstinence-only-until-marriage curricula but it is clear that the program does not provide information on contraception or disease prevention methods. Casparian sees this as a problem. “For those students who are choosing to be sexually active,” she said, “it would be immoral to deny them information that could save their lives, like how to use condoms and contraceptives.”
Though administrators did send a staff member to a Yes You Can training, it seems unlikely that the district will be making any major changes soon. School board president Timothy Quinn told the Times that Student Achievement Committee reviewed the curriculum after the concerns were raised and that a separate program will not be introduced.
And though small but vocal groups of parents have protested comprehensive sexuality education, sometimes effectively, in communities across the country, the majority of parents and adults support teaching a broader-based program. In one national survey, 89 percent of parents supported teaching about both abstinence and contraception.
By requiring sexual education instructors to be certified teachers, the Alaska legislature is targeting Planned Parenthood, which is the largest nonprofit provider of such educational services in the state.
Alaska is imposing a new hurdle on comprehensive sexual health education with a law restricting schools to only hiring certificated school teachers to teach or supervise sex ed classes.
The broad and controversial education bill, HB 156, became law Thursday night without the signature of Gov. Bill Walker, a former Republican who switched his party affiliation to Independent in 2014. HB 156 requires school boards to vet and approve sex ed materials and instructors, making sex ed the “most scrutinized subject in the state,” according to reproductive health advocates.
Championing the restrictions was state Sen. Mike Dunleavy (R-Wasilla), who called sexuality a “new concept” during a Senate Education Committee meeting in April. Dunleavy added the restrictions to HB 156 after the failure of an earlier measure that barred abortion providers—meaning Planned Parenthood—from teaching sex ed.
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Dunleavy has long targeted Planned Parenthood, the state’s largest nonprofit provider of sexual health education, calling its instruction “indoctrination.”
Meanwhile, advocates argue that evidence-based health education is sorely needed in a state that reported 787.5 cases of chlamydia per 100,000 people in 2014—the nation’s highest rate, according to the Centers for Disease Control and Prevention’s Surveillance Survey for that year.
The governor in a statement described his decision as a “very close call.”
“Given that this bill will have a broad and wide-ranging effect on education statewide, I have decided to allow HB 156 to become law without my signature,” Walker said.
Teachers, parents, and advocates had urged Walker to veto HB 156. Alaska’s 2016 Teacher of the Year, Amy Jo Meiners, took to Twitter following Walker’s announcement, writing, as reported by Juneau Empire, “This will cause such a burden on teachers [and] our partners in health education, including parents [and] health [professionals].”
An Anchorage parent and grandparent described her opposition to the bill in an op-ed, writing, “There is no doubt that HB 156 is designed to make it harder to access real sexual health education …. Although our state faces its largest budget crisis in history, certain members of the Legislature spent a lot of time worrying that teenagers are receiving information about their own bodies.”
Jessica Cler, Alaska public affairs manager with Planned Parenthood Votes Northwest and Hawaii, called Walker’s decision a “crushing blow for comprehensive and medically accurate sexual health education” in a statement.
She added that Walker’s “lack of action today has put the education of thousands of teens in Alaska at risk. This is designed to do one thing: Block students from accessing the sex education they need on safe sex and healthy relationships.”
The law follows the 2016 Legislative Round-up released this week by advocacy group Sexuality Information and Education Council of the United States. The report found that 63 percent of bills this year sought to improve sex ed, but more than a quarter undermined student rights or the quality of instruction by various means, including “promoting misinformation and an anti-abortion agenda.”
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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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 attemptsto challengebans 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.