Last week, the United States Court of Appeals for the Eleventh Circuit rejected graduate student Jennifer Keeton’s appeal of a lower court ruling denying her a court order to prevent her expulsion from Georgia’s Augusta State University’s school-counseling program.
FIRE submitted an amici curiae ("friends-of-the-court") brief before the Eleventh Circuit last December in this case, in which Keeton challenged the program’s requirements that she complete "diversity sensitivity training" and other remediation assignments after instructors learned of her religious beliefs. Specifically, Keeton argued that the program violated her rights to free speech and the free exercise of her religion when it told her that, in order to stay in the program, she would have to change her beliefs that homosexuality is immoral, unnatural, and a choice of lifestyle that can be reversed through therapy.
In August 2010, the United States District Court for the Southern District of Georgia found that the reason that Augusta State University assigned those requirements was not to change her beliefs, but to ensure that she not impose her beliefs on gay and lesbian clients she counsels. Based on this finding, the court held that Keeton did not show that she was substantially likely to prevail in her lawsuit, and was thus not entitled to a court order preventing her expulsion from the program.
We stated in our amici brief in support of Keeton, authored by noted First Amendment expert and UCLA law professor Eugene Volokh and joined by the National Association of Scholars, in pertinent part:
The First Amendment forbids such government retaliation based on a person’s exercise of First Amendment rights. To prove retaliation, "private citizens" (as opposed to government employees) "must establish that the retaliatory acts would deter a person of ordinary firmness from exercising his or her First Amendment rights." Bennett v. Hendrix, 423 F.3d 1247, 1252 (11th Cir. 2005). Students of ordinary firmness would certainly be deterred from expressing their dissenting viewpoints if the cost of such expression is many hours of extra university imposed burdens, coupled with the risk of expulsion from the program.
Besides violating Keeton’s own First Amendment rights, the university’s retaliation also sent a powerful message to other students: If you express views like Keeton’s, prepare to suffer the same consequences-prepare to incur many hours of extra obligations, and to put yourself at risk of expulsion. Just as campus speech codes that impose discipline for constitutionally protected speech unacceptably "inhibit [students] in expressing [their] opinions," "in class" and outside, so ASU’s actions here likewise inhibited student expression.
Finally, the university’s actions sent another message as well: If you challenge the views that the administration seeks to inculcate, prepare to have even your private conversations with your classmates reported to the authorities, scrutinized for evidence of wrong thinking, and used as the basis for university retaliation. This creates the very sort of "atmosphere of suspicion and distrust" that the Supreme Court condemned in Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S. Ct. 1203, 1212 (1957).
(Citations and footnotes omitted; brackets in original.)
Now, the Eleventh Circuit has upheld the lower court’s denial of a preliminary injunction as not being an abuse of discretion, and supported the lower court’s finding on the record that the reason for the extra requirements was not to indoctrinate, but to ensure best counseling practices. The Eleventh Circuit stated, in relevant part:
[Keeton] points to her allegations that ASU’s officials told her during the remediation plan meetings that she needed to alter her beliefs. However, the evidence overwhelmingly shows that ASU’s officials were not asking her to change her beliefs. For instance, Keeton’s fellow students stated in declarations that professors told Keeton in class that she did not need to change her beliefs, but instead needed to be aware of her beliefs and not impose them on the client. Likewise, ASU’s officials testified that Keeton could still hold her personal religious beliefs and become an effective counselor as long as she separated those beliefs from her work, and that students holding the same beliefs as Keeton have been successful in the program. Further, ASU’s officials wrote in the addendum to the remediation plan that "the intent of the remediation plan is not necessarily to alter your views about sexual orientation, or about any of your other personal beliefs." Given this evidence, the district court did not err in finding that Keeton’s allegations were insufficient to prove that ASU’s officials sought to alter her beliefs.
We’ll have more in the way of commentary on this going forward. It is important to note that both this ruling and the ruling of the district court are not final judgments in the case. We will keep Torch readers abreast of what happens next in this case.