Commentary Race

Paralysis Is Not an Option: What We Must Do While Mourning Jordan Davis

Jodi Jacobson

Like so many before it, the outcome of the trial of Michael Dunn for the murder of Jordan Davis reveals how deeply ingrained racism is in this country. Somehow, some way, this must end, and it is up to each of us to end it.

Having grown up with an over-protective mother, I’ve had to fight constantly against my own instincts to over-protect my kids. I knew I wanted my kids to be different from me, not to have to fight fear every time they got to the top of a ski slope or peered over the ledge of a mountain. So from the time they were small, I encouraged them to take rational risks: to climb the monkey bars, to skate, swim, ski, run. They went to sleep-away camp and sleepovers, learned how to walk or take the bus to school, to navigate the city. When my daughter started driving, I reminded myself that, yes, anything could happen, but she’d done everything necessary to earn her license and it was her time for independence. I let my kids try, explore, fall, and sometimes fail so they could learn how to live their own lives to their fullest and, eventually, succeed as adults. Risk is an inevitable part of life, and you cannot live without it.

Still, I worry about my children, and you might think, “Well, that’s natural.” But I’ve learned that my kind of worry is a luxury. My kind of worry is what might aptly be called “white worry.” It never enters my mind that someone will shoot my son indiscriminately under the assumption he is a “thug” for playing loud music; it never enters my mind that he will be unsafe walking to school, or the store, or home from baseball simply because he is wearing a certain kind of sweatshirt. It never enters my mind that the police will stop one of my kids in the car for a minor infraction and in the next minute be beating them. I’ve never had to worry that the greatest risk factor my kids face is the desire to live life itself; that in simply living life they are targeted because of their race from the moment they are born.

I now fully understand I have the luxury of worrying about things Black parents never do, because they are worried about their kids being targeted simply for living, simply for the mundane actions of teenagers playing music too loud, simply because they are not white.

This weekend, in the wake of a grotesque denial of justice, that luxury could not have become more clear. A jury in Florida effectively acquitted Michael Dunn of the murder of Jordan Davis, a 17-year-old who was at a gas station with friends playing music in their car. Their crime? Living while Black. Being normal teenagers while Black. Driving while Black. Playing music while Black. Black parents have to worry that the simple act of being a normal teenager is a sufficient reason to have a white man with a violent past draw a gun and shoot at four teenage boys in a car, killing one and putting the lives of three others at risk.

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I will not even attempt to explain or analyze this case or the multitude of other such cases of living while Black just like it (including those of Trayvon Martin and Renisha McBride) because writers with far greater legitimacy, eloquence, and experience have already done so. You can and should read Goldie Taylor at The Grio, Ta-Nehisi Coates at The Atlantic, Tamura Lomax at The Feminist Wire, Stacia Brown at The American Prospect, and the statements of Rev. Al Sharpton and the NAACP.

What I can do, however, is share some ideas and resources for action—the actions we all must take. Including you. Now. Today. At first, the outcome of the Dunn trial left me so dispirited and bereft I felt paralyzed. Then I realized that paralysis was another sort of luxury, that being paralyzed is being part of the problem and something we cannot afford. So I turned to colleagues and friends who suggested to me some initial avenues of action and solidarity, an opening on a pathway to justice, if each of us take some responsibility.

First, help with growing efforts to overturn “stand your ground” (SYG) laws. As Taylor writes at The Grio, 26 states have stand your ground (otherwise known as “shoot first”) laws on the books.

Seven more states permit the use of deadly force in self-defense with no duty of retreat through other statutes and judicial decisions known as stare decisis or “let the decision stand.”

In the five years since the “shoot first” laws were first enacted in Florida, the number of justifiable homicides has tripled.

Color of Change is one organization calling on elected officials across the country to stand against these laws. Please sign and help spread their petition. Do it now.

If you know (or have any influence with) people in one of the states listed here, please encourage your family, friends, colleagues, and others in your social networks to learn more about those bills and tell their state legislators to vote the right way.

You can also tell people you know (or have any influence with) in these states to call their state legislators and tell them to fix laws that allow people like Dunn to kill other people and get away with it.

Help support organizations on the ground in Florida that are working hard to change SYG laws and other laws that criminalize Black communities and communities of color. You can give money, time, and other resources to groups like Dream Defenders, the Miami Workers Center, Florida New Majority, and POWER U Center for Social Change. Donate now, call them and ask what they need, ask them to tell you how best to work in your community to make change. Share these resources with everyone you know and encourage them to take action as well.

Learn more. As my colleague Alicia Garza notes, “It can be easy to individualize cases like these or states like Florida as stand outs, when in actuality these cases and these laws are becoming more and more common.” This article by Lauren Williams in Mother Jones provides just a glimpse of the kinds of violence and abuse that Black children and teens face all the time.

Use the hashtags #DangerousBlackKids and #BlackLivesMatter to further engage with others on the real effects of racism. Talk to everyone you know—friends, family members, followers—and tell them why you are outraged that the lives of Black citizens are so heavily devalued.

And, as Garza suggests, “when talking with your friends and loved ones, also do some dreaming together. What would this country look like and feel like without laws like these? Dreaming is really important—especially in times like these. It helps us fight apathy, helps to keep us taking those small incremental steps that don’t always feel huge but with more and more of us taking them they will become huge.”

Paralysis is not an option. The lives of too many children are at stake, and you are part of the solution. Please join me in acting now and making the fight against insidious racism a permanent part of your own life.

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.

News Politics

Democratic Party Platform: Repeal Bans on Federal Funding for Abortion Care

Ally Boguhn

When asked this month about the platform’s opposition to Hyde, Hillary Clinton’s running mate Sen. Tim Kaine (D-VA) said that he had not “been informed of that” change to the platform though he has “traditionally been a supporter of the Hyde Amendment.”

Democrats voted on their party platform Monday, codifying for the first time the party’s stated commitment to repealing restrictions on federal funding for abortion care.

The platform includes a call to repeal the Hyde Amendment, an appropriations ban on federal funding for abortion reimplemented on a yearly basis. The amendment disproportionately affects people of color and those with low incomes.

“We believe unequivocally, like the majority of Americans, that every woman should have access to quality reproductive health care services, including safe and legal abortion—regardless of where she lives, how much money she makes, or how she is insured,” states the Democratic Party platform. “We will continue to oppose—and seek to overturn—federal and state laws and policies that impede a woman’s access to abortion, including by repealing the Hyde Amendment.”

The platform also calls for an end to the Helms Amendment, which ensures that “no foreign assistance funds may be used to pay for the performance of abortion as a method of family planning.”

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Though Helms allows funding for abortion care in cases of rape, incest, and life endangerment, the Obama administration has failed to enforce those guarantees.

Despite the platform’s opposition to the restrictions on abortion care funding, it makes no mention of how the anti-choice measures would be rolled back.

Both presumptive Democratic nominee Hillary Clinton and Sen. Bernie Sanders (I-VT) have promised to address Hyde and Helms if elected. Clinton has said she would “fix the Helms Amendment.”

Speaking at the Iowa Brown and Black Presidential Forum in January, Clinton said that the Hyde Amendment “is just hard to justify because … certainly the full range of reproductive health rights that women should have includes access to safe and legal abortion.” In 2008, Clinton’s campaign told Rewire that she “does not support the Hyde amendment.”

When asked this month about the platform’s opposition to Hyde, Clinton’s running mate Sen. Tim Kaine (D-VA) said in an interview with the Weekly Standard that he had not “been informed of that” change to the platform though he has “traditionally been a supporter of the Hyde amendment.”

“The Hyde amendment and Helms amendment have prevented countless low-income women from being able to make their own decisions about health, family, and future,” NARAL President Ilyse Hogue said in a statement, addressing an early draft of the platform. “These amendments have ensured that a woman’s right to a safe and legal abortion is a right that’s easier to access if you have the resources to afford it. That’s wrong and stands directly in contrast with the Democratic Party’s principles, and we applaud the Party for reaffirming this in the platform.”