Ward v. Polite

• Decision Date: 27 January 2012
• Docket Number: Nos. 10–2100,10–2145.,s. 10–2100
• Citation: 276 Ed. Law Rep. 593,667 F.3d 727
• Parties: Julea WARD, Plaintiff–Appellant/Cross–Appellee, v. Vernon POLITE; Irene Ametrano; Perry Francis; Gary Marx; Paula Stanifer; Yvonne Callaway; Suzanne Dugger, Defendants–Appellees/Cross–Appellants,Roy Wilbanks; Floyd Clack; Gary D. Hawks; Philip Incarnati; Mohamed Okdie; Francine Parker; Thomas W. Sidlik; James Stapleton; Susan Martin, Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

276 Ed. Law Rep. 593

667 F.3d 727

Julea WARD, Plaintiff–Appellant/Cross–Appellee,

v.Vernon POLITE; Irene Ametrano; Perry Francis; Gary Marx; Paula Stanifer; Yvonne Callaway; Suzanne Dugger, Defendants–Appellees/Cross–Appellants,Roy Wilbanks; Floyd Clack; Gary D. Hawks; Philip Incarnati; Mohamed Okdie; Francine Parker; Thomas W. Sidlik; James Stapleton; Susan Martin, Defendants.

Nos. 10–2100

10–2145.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 4, 2011.Decided and Filed: Jan. 27, 2012.

ARGUED: Jeremy D. Tedesco, Alliance Defense Fund, Scottsdale, Arizona, for Plaintiff. Mark T. Boonstra, Miller Canfield, Paddock and Stone, P.L.C., Ann Arbor, Michigan, for Defendants. ON BRIEF: Jeremy D. Tedesco, Alliance Defense Fund, Scottsdale, Arizona, David A. French, Alliance Defense Fund, Columbia, Tennessee, Steven M. Jentzen, Ypsilanti, Michigan, for Plaintiff. Mark T. Boonstra, David R. Grand, Miller Canfield, Paddock and Stone, P.L.C., Ann Arbor, Michigan, for Defendants. Eugene Volokh, UCLA School of Law, Los Angeles, California, Walter M. Weber, American Center for Law & Justice, Washington, D.C., Deborah J. Dewart, Swansboro, North Carolina, Benjamin D. DuPré, Foundation for Moral Law, Montgomery, Alabama, Eric C. Rassbach, The Becket Fund for Religious Liberty, Washington, D.C., Gregory M. Lipper, Ayesha N. Khan, Americans United for Separation of Church and State, Washington, D.C., David Sapir Lesser, Brian A. Sutherland, Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York, Jill M. Wheaton, Lauren M. London, Dykema Gossett PLLC, Ann Arbor, Michigan, Camilla B. Taylor, Lambda Legal Defense and Education Fund, Inc., Chicago, Illinois, Michael J. Steinberg, ACLU Fund of Michigan, Detroit, Michigan, Daniel Mach, American Civil Liberties Union Foundation, Washington, D.C., Debra A. Kowich, University of Michigan, Ann Arbor, Michigan, Bruce H. Edwards, Michigan Attorney General, Lansing, Michigan, for Amici Curiae.Before: GIBBONS and SUTTON, Circuit Judges; ADAMS, District Judge. ^*

OPINION

SUTTON, Circuit Judge.

In its graduate-level counseling-degree program, Eastern Michigan University prohibits students from discriminating against others based on sexual orientation and teaches students to affirm a client's values during counseling sessions. In three years with the program, Julea Ward frequently expressed a conviction that her faith (Christianity) prevented her from affirming a client's same-sex relationships as well as certain heterosexual conduct, such as extra-marital relationships. That stance did not sit well with the values-affirming lessons of her counseling professors, but for nearly three years none of this prohibited Ward from continuing to take classes toward a degree and from doing well in the process. Entering the last stages of the program with a 3.91 GPA, she signed up for a student practicum, a required course in experiential learning that requires students to put their training into practice by counseling real clients. When the university asked Ward to counsel a gay client, Ward asked her faculty supervisor either to refer the client to another student or to permit her to begin counseling and make a referral if the counseling session turned to relationship issues. The faculty supervisor referred the client. The university commenced a disciplinary hearing into Ward's referral request and eventually expelled her from the program. Ward sued the university defendants under the First and Fourteenth Amendments.

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. The key problem with the university's position is 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. It is that the school does not have a no-referral policy for practicum students and adheres to an ethics code that permits values-based referrals in general. When the facts are construed in Ward's favor, as they must be at this stage of the case, a reasonable jury could conclude that Ward's professors ejected her from the counseling program because of hostility toward her speech and faith, not due to a policy against referrals. We reverse the trial court's grant of summary judgment in favor of the university.

I.

After teaching English and radio and television broadcasting at Southfield High School in suburban Detroit for ten years, Julea Ward decided to become a school counselor. Ward enrolled at Eastern Michigan University in May 2006 and began taking classes towards a master's degree in counseling, all while continuing to teach full-time. In order to become a licensed counselor in Michigan, an individual must obtain a master's degree in counseling. See Mich. Comp. Laws § 333.18107(1)(b). Early on in the university's counseling program, Ward sparred with professors over faith-based issues, particularly her belief that Christianity prohibited her from “affirm[ing]” or “validat[ing]” the “homosexual behavior” of counseling clients. R. 9–5 at 5. When Ward expressed these views, professors disagreed, sometimes kindly, sometimes less so, but consistently making the point that, as a counselor, she must support her clients' sexual orientation, whatever that may be.

Despite these occasional conflicts, Ward did well academically. She had a 3.91 grade point average going into the winter 2009 quarter, with just four classes (13 credit hours) left to complete the degree. That quarter, she enrolled in a counseling practicum, a graduation prerequisite that requires students to apply what they have learned through one-on-one counseling sessions with real clients. Students spend a minimum of 40 hours counseling several clients over the course of the practicum. Students meet with clients in an office at the school, and they later meet with a faculty supervisor for at least one hour each week to discuss the clients, the practicum and their professional development.

Ward counseled her first two clients in practicum without incident. When she reviewed the file of the third client, she noticed he sought counseling about a same-sex relationship. Ward called her faculty supervisor, Professor Yvonne Callaway, and asked (1) whether she should meet with the client and refer him 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. Callaway reassigned the client.

When Ward met with Callaway the next day for their weekly meeting, Callaway was not happy. In twenty years of teaching, she told Ward, no practicum student had made such a request. Callaway told Ward that her actions created an “ethical dilemma,” prompting her to schedule an informal review with Ward. R. 82–3 at 215. These meetings are not “disciplinary” but are designed “to assist the student in finding ways to improve his/her performance or to explore the option of the student voluntarily leaving the program.” R. 14–7 at 15. Callaway, Ward and Ward's academic supervisor, Professor Suzanne Dugger, participated in the informal review. Callaway raised concerns about Ward's refusal to counsel the assigned client, and Ward reiterated her religious objection to affirming same-sex relationships. All three participants agreed that “the development of a remediation plan would not be possible.” R. 80 at 2. Dugger and Callaway gave Ward two options: withdraw from the program or seek a formal review. Ward asked for a formal review, in which a committee composed of several faculty members and one student considers allegations of improper behavior or poor academic performance. The committee may impose a range of sanctions, from requiring a student to repeat a course to dismissing the student from the program.

Before the hearing, Dugger told Ward that she had violated two provisions of the American Counseling Association's (ACA) code of ethics by: (1) “imposing values that are inconsistent with counseling goals,” Rule A.4.b, and (2) “engag [ing] in discrimination based on ... sexual orientation,” Rule C. 5. R. 1–4 at 2. The counseling program's student handbook incorporates the ACA code of ethics and tells students, including practicum students, to follow it.

The formal review committee consisted of two faculty members from the counseling program (Professors Irene Ametrano and Perry Francis), one faculty member from the education leadership program (Professor Gary Marx) and one student representative (Paula Stanifer). The hearing began with an explanation of the faculty members' concerns, including Callaway's and Dugger's accounts of Ward's practicum experience and their shared opinion that her conduct violated the code of ethics. Dugger recommended that Ward be dismissed from the counseling program.

Ward responded that she did not discriminate against anyone. She had no problem counseling gay and lesbian clients, so long as the university did not require her to affirm their sexual orientation. Because her professors taught her that counselors dealing with such clients “cannot talk about anything other than affirming [their same-sex] relationships,” R. 1–5 at 18—a message Ward's religious beliefs prohibited her from delivering—Ward asked that she be allowed to refer gay and lesbian clients seeking relationship advice to another counselor.

Two days later, the university sent Ward a letter conveying the committee's unanimous opinion that she violated the code of ethics. Because Ward was “unwilling to change [her] behavior,” the committee expelled her from the counseling program, effective that day. R. 1–7. Ward appealed the committee's decision to the Dean of the College of Education, Dr. Vernon Polite. He denied the appeal.

Ward...