Keeton v. Anderson-Wiley

• Decision Date: 16 December 2011
• Docket Number: No. 10–13925.,10–13925.
• Citation: 275 Ed. Law Rep. 74,23 Fla. L. Weekly Fed. C 647,664 F.3d 865
• Parties: Jennifer KEETON, Plaintiff–Appellant, v. Mary Jane ANDERSON–WILEY, Associate Professor, Augusta State University, Paulette Schenck, Assistant Professor, Richard Deaner, Assistant Professor, Wayne Lord, Chairman of Department of Educational Leadership, Counseling and Special Education, Gordon Eisenman, Dean of College of Education, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 647

275 Ed. Law Rep. 74

664 F.3d 865

Jennifer KEETON, Plaintiff–Appellant,

v.Mary Jane ANDERSON–WILEY, Associate Professor, Augusta State University, Paulette Schenck, Assistant Professor, Richard Deaner, Assistant Professor, Wayne Lord, Chairman of Department of Educational Leadership, Counseling and Special Education, Gordon Eisenman, Dean of College of Education, et al., Defendants–Appellees.

No. 10–13925.

United States Court of Appeals, Eleventh Circuit.

Dec. 16, 2011.

Jeffrey Shafer, Alliance Defense Fund, Washington, DC, Travis C. Barham, David Andrew Cortman, Alliance Defense Fund, Lawrenceville, GA, Charles C. Stebbins, III, Warlick, Tritt, Stebbins & Murray, LLP, Augusta, GA, for Plaintiff–Appellant.

Meghan Robson Davidson, Nall & Miller, LLP, Cristina Correia, Samuel Scott Olens, Atlanta, GA, for Defendants–Appellees.

Chara Fisher Jackson, ACLU Foundation of Georgia, Inc., Gregory R. Nevins, Lambda Legal Defense & Education Fund, Inc., Atlanta, GA, Eugene Volokh, Los Angeles, CA, Sara Ellyn Jeruss, Luann Simmons, Sarah Starcevich, O'Melveny & Myers, LLP, San Francisco, CA, for Amici Curiae.Appeal from the United States District Court for the Southern District of Georgia.

Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.

BARKETT, Circuit Judge:

Jennifer Keeton was enrolled in the Counselor Education Program at Augusta State University (ASU), a Georgia state school, seeking to obtain her master's degree in school counseling. After Keeton completed her first year in the program, ASU's officials asked her to participate in a remediation plan addressing what the faculty perceived as deficiencies in her “ability to be a multiculturally competent counselor, particularly with regard to working with gay, lesbian, bisexual, transgender, and queer/questioning (GLBTQ) populations.”¹ ASU's officials required Keeton's consent to the remediation plan before Keeton could participate in the program's clinical practicum, in which she would have to counsel students one-on-one. Rather than completing the remediation plan, Keeton filed this action pursuant to 42 U.S.C. § 1983, alleging that requiring her to complete the remediation plan violated her First Amendment free speech and free exercise rights.² Along with her verified complaint, Keeton also filed a motion for a preliminary injunction that would prevent ASU's officials from dismissing her from the program if she did not complete the remediation plan. After holding an evidentiary hearing, the district court denied her motion for a preliminary injunction, and it is from this order that Keeton now appeals. ³

I. Standard of Review

A district court may grant a preliminary injunction only when the moving party demonstrates: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction is issued; (3) the threatened injury to the moving party outweighs whatever damage the proposed injunction might cause the non-moving party; and (4) if issued, the injunction would not be adverse to the public interest. BellSouth Telecommunications, Inc. v. MCIMetro Access Transmission Services, LLC, 425 F.3d 964, 968 (11th Cir.2005).

In First Amendment cases, we review a district court's decision to grant or deny a preliminary injunction under a unique abuse of discretion standard. Questions of law are reviewed de novo. American Civil Liberties Union of Florida, Inc. v. Miami–Dade Cnty. School Bd., 557 F.3d 1177, 1198 (11th Cir.2009) (“ ACLU of Florida”). The district court's findings of ordinary historical facts are reviewed for clear error, id. at 1206, but the district court's findings of “constitutional facts” are reviewed de novo, id. at 1203. Ordinary facts are the “who, what, where, when, and how of the controversy.” Id. at 1206. In contrast, constitutional facts are the “crucial” or “ultimate” facts that determine whether the defendant's actions violated the First Amendment. Id. at 1205.

II. Background

The record, which at this stage of the proceedings consists of the verified complaint, the text of the remediation plan, correspondence between Keeton and ASU's officials, declarations of several ASU students and officials, and the testimony of several ASU officials offered at an evidentiary hearing on Keeton's motion for a preliminary injunction, shows the following.

In her brief, Keeton describes herself as a Christian who is committed to the truth of the Bible, including what she believes are its teachings on human nature, the purpose and meaning of life, and the ethical standards that govern human conduct. She holds several beliefs about homosexuality that she views as arising from her Christian faith. She believes that “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces; that gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change; and that homosexuality is a ‘lifestyle,’ not a ‘state of being.’ ” ASU's officials became aware that Keeton held these beliefs when she expressed to professors in class and fellow classmates in and out of class that she believed that the GLBTQ population suffers from identity confusion, and that she intended to attempt to convert students from being homosexual to heterosexual. Keeton also said that it would be difficult for her to work with GLBTQ clients and to separate her views about homosexuality from her clients' views. Further, in answering a hypothetical posed by a faculty member, Keeton responded that as a high school counselor confronted by a sophomore student in crisis, questioning his sexual orientation, she would tell the student that it was not okay to be gay. Similarly, Keeton told a fellow classmate that, if a client discloses that he is gay, it was her intention to tell the client that his behavior is morally wrong and then try to change the client's behavior, and if she were unable to help the client change his behavior, she would refer him to someone practicing conversion therapy.

ASU's officials determined that, through these statements, Keeton expressed her intent to violate several provisions of the American Counseling Association's (ACA) Code of Ethics, which ASU was required to adopt and teach in order to offer a counseling program accredited by the Council for Accreditation of Counseling and Related Educational Programs (CACREP). ⁴ Among the sections of the ACA Code of Ethics that Keeton's statements indicated she would violate are:

(1) Section A.1.a: “The primary responsibility of counselors is to respect the dignity and to promote the welfare of clients”;

(2) Section A.4.b: “Counselors are aware of their own values, attitudes, beliefs, and behaviors and avoid imposing values that are inconsistent with counseling goals. Counselors respect the diversity of clients, trainees, and research participants”;

(3) Section C.2.a: “Counselors gain knowledge, personal awareness, sensitivity, and skills pertinent to working with a diverse client population”; and

(4) Section C.5: “Counselors do not condone or engage in discrimination based on age, culture, disability, ethnicity, race, religion/spirituality, gender, gender identity, sexual orientation, marital status/partnership, language preference, socioeconomic status, or any basis proscribed by law.”

Before Keeton could participate in the program's clinical practicum, in which she would have engaged in one-on-one counseling with a student, ASU's officials asked her to participate in a remediation plan, to help her learn how to comply with the ACA Code of Ethics and improve her “ability to be a multiculturally competent counselor, particularly with regard to working with [GLBTQ] populations.” As mentioned above, the ASU student handbook authorizes the imposition of a remediation plan when a student's performance is “not satisfactory on interpersonal or professional criteria unrelated to academic performance.” Similarly, the ACA Code of Ethics requires counselor educators to “address the inability of some students to achieve counseling competencies that might impede performance.” In accordance with CACREP guidelines, the faculty assesses every student each semester to determine whether they are having difficulties that need to be addressed through a remediation plan. In the past, remediation plans have been drafted for students who have had difficulty with writing assignments, “performing the skills particular to a counseling internship setting,” receiving feedback from their supervisors, and “working with other multi-cultural populations, like the African–American population.” Keeton's remediation plan required her to:

(1) attend at least three workshops which emphasize improving cross-cultural communication, developing multicultural competence, or diversity sensitivity training toward working with the GLBTQ population;⁵

(2) read at least ten articles in peer-reviewed counseling or psychological journals that pertain to improving counseling effectiveness with the GLBTQ population;⁶

(3) work to increase her exposure and interaction with the GLBTQ population by, for instance, attending the Gay Pride Parade in Augusta;⁷

(4) familiarize herself with the Association for Lesbian, Gay, Bisexual and Transgender Issues in Counseling (“ALGBTIC”) Competencies for Counseling Gays and Transgender Clients;⁸ and

(5) submit a two-page reflection to her advisor every month summarizing what she learned from her research, how her study has influenced her beliefs, and how future clients may benefit from what she has learned.⁹

Other parts of the remediation plan addressed Keeton's deficient writing skills, but those parts are not at issue here. Based on Keeton's written reflections and two scheduled meetings, the faculty would “decide the appropriateness of her continuation in the counseling program.”

School officials held several meetings with Keeton to discuss...