A Troubling Ruling in Ward v. Polite

Sometimes a court reaches the right decision for all of the wrong reasons. That seems to be the case in Friday’s unanimous ruling in Ward v. Polite by a three-judge panel of the 6th Circuit Court of Appeals.

A bigot like Julea Ward, who refused to do counseling for gay people due to her religious hatred of them, certainly deserves criticism. But does she deserve to be expelled from her graduate program in counseling at Eastern Michigan University? I don’t think so. My reasoning is this: colleges can require students to learn material. But colleges shouldn’t be able to require students to do anything with that knowledge. Colleges should not expel students from learning simply because their views might make them ethically unable to perform certain occupations. For example, a pacifist should never be expelled from a college program for policing, even if that person’s beliefs made them unable to work at a standard police occupation. (It’s also not clear that Ward was fully informed that merely requesting a referral of her gay client would result in her expulsion.) So the 6th Circuit was right to allow this case to go forward rather than dismiss it.

But the reasoning of the court is much more dubious. The court invoked the infamous high school newspaper case, Hazelwood, and applied it to the college (and even graduate school) setting. Treating graduate students as if they are minors unable to exercise constitutional rights is a dangerous precedent. The Supreme Court has never applied the misguided Hazelwood decision to universities, and lower courts need to stop expanding decisions that favor repression. I’m not certain if Ward deserves to win her case, but I do know that she shouldn’t lose on the grounds that students have no rights.

14 thoughts on “A Troubling Ruling in Ward v. Polite

  1. I do not know if the Court necessarily held that Hazelwood applied. . The Hazelwood case UPHELD limitations on speech. The Court held that even if Hazelwood applied, as the university argued, the university will still not be entitled to summary judgment. (Sometimes courts assume, without deciding, that an argument by a litigant is true and then rules against the litigant. See e.g. Beller v. Middendorf , 632 F.2d 788 at 809-810 (9th Cir. 1980) (upholding challenged policy while assuming that heightened scrutiny applied))

    If this ruling is ultimately upheld, it goes back to the district court, where the issue will be if the school had a policy against practicum students requesting referrals.

  2. No, it doesn’t work that way. The court wasn’t being speculative; it was declaring that Hazelwood applies to colleges. Now, it’s true that the court also indicated that the referral question would determine this case, which is favorable for Ward. That makes the use of the repressive Hazelwood standard even more puzzling, since it wasn’t necessary at all for this case. But it still serves as a precedent for future attempts to limit the rights of college students.

    • There are some appellate court cases suggesting that a legal argument not
      “essential to the result reached in the case” constitutes obiter dicta. See e.g. Rossiter v. Potter, 357 F.3d 26 at 31 (1st
      Cir. 2004) I do not know if the Sixth Circuit follows this rule, though.

  3. It’s funny how a student who “hates” gays because she doesn’t agree with the lifestyle (does someone who disagrees with murder and rape as a lifestyle hate murderers????), but the professor who hates anyone who disagrees with pro-gay lifestyles is perfectly okay. Who has the double standard….?

    • Actually, I do hate murderers and rapists. It would be a double standard, if you believed that being gay is the moral equivalent of being a murderer. The issue here is not attitudes, but professionalism. It’s extremely unprofessional for Ward to refuse to counsel gay people. It would also be extremely unprofessional for a professor to refuse to teach an anti-gay student, but that’s not what happened here. Ward wasn’t punished for her views or her religious beliefs, but for being unprofessional. Now, I am skeptical of applying professional standards to students, but “hating” (or criticizing) a student for these actions would certainly be acceptable.

      • What I take issue with is calling her a bigot. It seems that this is often the trump card for liberals who invoke this inflammatory name calling for anyone who has moral reservations about a behavior. I have reservations about gay behavior as I do about any use of sex outside of marriage between a man and a women. But I am not allowed by this society to hold that belief unless it is respected by most people (which it is not).The other liberal invocation is the “racist” label applied to anyone who disagrees with a Black politician. I think this professor had more of a problem with her anti-gay stand than with the referral issue.The fact that the professor invoked a non-existent policy may be evidence of my position and that he or she was reacting to her own bias in favor of a destructive lifestyle (i.e, gays have anal cancer rates 4000 times that of heterosexual males) I can show respect to liberals who believe in infanticide, but still disagree with the position. Your use of the term” religious hatred” is an assumption unless there is evidence that she actually hates gays (which some “Christians” wrongly hold). Christians are warned against hating anyone, a standard much higher that any liberal ideology, but liberals are often perfectly comfortable with anti-Christian rhetoric that thinks anyone who has a problem (as the Bible does) with the lifestyle (not the person) is ignorant, stupid and retarded. On the other hand, there are to many Christians who obsess on SSA as a whipping boy for self righteous judgmentalism (nowhere advocated in the New Testament). As a counselor myself, I would not necessarily agree with Wards decision, but if the issue comprises her emotionally, she would not be fit to do the counseling anyway.

      • I need to correct some misinformation in the post below, which I am unable to reply to. Anal cancer rates among “gays” are not 4000 times that of heterosexual males. Men who have sex with men (MSM), a behavior rather than an identity, who are not HIV+ have anal cancer at the rate of 40 out of 100,000. That is 20 times higher, but failing to mention the base rate is deceptive. The rate of anal sex in MSM who are HIV+ is 80 out of 100,000, 40 times higher than a non-comparable sample because of the complications of HIV. These figures are a far cry from the 4,000 times figure stated below.
        It is also important to understand when interpreting the rates that they are very similar to that of women before pap smears became common. The rate of anal cancer is evidence of a “destructive lifestyle” to the same degree that women who had sex participated in a destructive lifestyle.
        The issue of elevated rates of anal cancer in MSM is a public health issue and can easily be dealt with by the equivalent of pap smears or the HPV vaccine. The interpretation of the illness as evidence of anything deeper ignores the medical and historical evidence, and muddies the facts with the interpreters own projections.

  4. John Wilson said, “Actually, I do hate murderers and rapists…” In that case it would be unprofessional and unethical to take a client who was a murderer or a rapist; they still may need professional help. To whom should they turn?

    It seems to me that professional ethics and standards call upon all therapists refer out any patient they are unable to treat. This would applies equally to patients one cannot treat for a host of reasons. There could be a dual relationship, or lack of knowledge in treatment of a particular diagnosis, an opinion that a different level of care was required—or that the countertransference of the therapist was too great and would get in the way of the treatment. This would also apply to a gay therapist who was feeling very attracted to a male patient. Whether positive or negative feelings are present, the therapist has a professional duty to refer out a patient he or she cannot treat.

    We also ought to recognize that this is a case of a person who subscribes to a consciously chosen belief that is held by a large segment of society. Ward is representative of a body of opinion that happens to be a source of intense social conflict at this historical juncture. One can argue that Ward should consider modifying her views, or that her views are wrong, or even that Ward’s intolerance rises to the level of bigotry. It seems clear that, to Ward, this is explicitly not a case of hatred, but a conscious decision not to take a patient who would not be well served by her. If so, it is a good example of professionalism.

    Ward is a student in a milieu where her beliefs are decidedly in the minority, and the majority view is that people holding this belief ought to be punished for acting on their belief, in this case not actively, but passively. What if a student was a member of The Nation of Islam and the patient is white or a Jew? Minister Farrakhan has compared whites to devils and Jews to Satan quite often. If that student believes the Minister, should he or she work with that client?

    It is most revealing that the original poster called Ward a “bigot” who “hates” homosexuals. I would strongly suggest that the original poster not treat Ms. Ward when she comes for therapy, but rather refer her out.

    • This logic would seem to suggest that only pro-rapist counselors should ever treat rapists, and only bigots should treat bigots. Professionalism means treating people who do things that you dislike. I would agree that referrals are often appropriate. However, in this case, Ward wanted a referral not because she was unable to treat a gay client, but because she dislikes homosexuality. That’s unusual, and I think it should not be praised as professional. Nevertheless, that doesn’t justify expelling her from an academic program because I believe students should not be forced to meet professional standards.

  5. I have to hold with the “bigot” comment and “hates homosexuals” as a completely distasteful and unreliable as the writer can’t prove anything.
    As far as this case goes, Ms. Ward seemed capable of helping the client as long as his homosexual tendencies did not come up in their sessions. However, since that is not something she could garuntee or indeed help the client with as her religous stand points dictated, it was more professional of her to step back and save her client any set back by her beliefs. I believe she was respecting both her client and herself more than if she had accepted the client. Also, Ms. Ward didn’t make her request public until her expulsion. If the advisor/professor had kept to his own professionalism and respected his student’s beliefs as well as the professionalism she was showing by coming to him in private, the client might never have known the difference. Since when has it been ok to be a Muslim or a gay but not a Christain? If you respect one persons right to chose homosexuality, you respect the other persons choice to believe their faith says its wrong. I am a Christian and I have gay friends. Regardless, I respect the person, while I disagree with their choices the same way I would with friends who are not gay. This should not have been an issue with the professor.

    • As far as this case goes, Ms. Ward seemed capable of helping the client as long as his homosexual tendencies did not come up in their sessions.

      Ward is similarly situated to an atheist counselor who will counsel a devout Christian about careers, romantic relationships, or friendships, but will not try to counsel a Christian about religious faith. An atheist counselor with ethics would request a referral for a Christian client who wanted counseling about religious faith.

  6. Pingback: Eastern Michigan “college Hazelwood” case may get further Sixth Circuit review « Student Press Law Center

  7. An ACA accredited counseling graduate program that leads to licensure works differently than other programs. Professors absolutely reserve the right to question and even expel a student who blatantly refuses to meet ACA professional standards, classes stress them and there’s only one! There are numerous other reasons a counselor trainee can be dropped from a program, emotional issues, low GPA, and in this case, an inability to meet clients where they are at on a scale that shows they could do harm to future clients. Part of the graduate counseling program is learning how to let go of our own stuff to be able to serve others, and always do what is best for the client FIRST. She was not licensed yet and this practicuum was a CLASS, not her own practice where clients can sign an informed consent and are aware of her views, and the point of practicuum is to apply it while the prof watches to see you are making progress- if she had very poor clinical skills the same thing would occur. There are two semesters of internship after this and two years of supervised practice after licensing, if she couldn’t even make it through one without drawing lines based on HER needs, she should maybe think about being a Christian counselor, not expect to be treated specially in a all-inclusive non-secular public university’s program.
    The point isn’t that the university was telling her what to DO with her knowledge (but I guarantee you that this ISNT “knowledge” she got in a counseling class), they were telling her that she should probably think about a career that fits HER views better, because counseling a middle of the road population DOESNT. Referrals according to the ethics code are not designed for personal viewpoints to exclude an entire population of people based on a counselor’s whims (ok, religious beliefs). They are for when a counselor feels they honestly don’t have the clinical competence to benefit a client and may even do harm, but have the desire to. This woman was saying no how, no way because of what I think of THEM.
    What if someone was in an MBA program and said (totally stupid, just making something up), “I plan to only work for rich straight people so I make more $?” They probably wouldn’t get booted out of the MBA program, because we assume society will take care of the rest and it isn’t against the law to choose customers. Also, since the person is working with numbers and ina field where there isn’t a code of ethics (understatement), then whatever. But if a counselor trainee, in an ACA accredited program that leads to only one thing- practicing counseling- states that not only does she have a bias but will impose that bias on clients (she said she WOULD work with gay clients, just not if they talk about their gay relationships-really?!), then she is already acting unethically according to the ACA CODE OF ETHICS! Also, a supervisor, like her prof, is acting unethically if they allow her to continue, when a counselor trainee is in practicuum, they work under someone else’s license, and they are bound to the ethcis code as well. In essence, counselor trainees are already working under the ACA code of ethics, so if they do not adhere to them, they are out.
    To address this sentence, “But colleges shouldn’t be able to require students to do anything with that knowledge. Colleges should not expel students from learning simply because their views might make them ethically unable to perform certain occupations,”: in a counseling program that is accredited by the same agency that wrote the ethics code for the occupation, and for a profession that has an ethics code that so greatly affects human development and growth and could easily damage another human, a college has the OBLIGATION to expel a student if they believe they will not use the knowledge to ethically perform counseling- that is called “doing harm!” I am glad that grad programs are so challenging, in a field where the result could either benefit or do harm to people and relationships, thank goodness we are weeding people out.
    Note to bigots, religious fanatics and sexists (and the opposites!) who refuse to associate with certain groups of people: please do not apply to and attend classes at a graduate couseling program, you will probably have to counsel someone you REALLY dissaprove of, refuse to do it get kicked out and have wasted your $. And we don’t want you anyway!

    • An ACA accredited counseling graduate program that leads to licensure works differently than other programs. Professors absolutely reserve the right to question and even expel a student who blatantly refuses to meet ACA professional standards, classes stress them and there’s only one!

      And what ACA professional standard forbids requesting referrals?

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