AVOIDING LIABILITY BLOG

Discrimination And Ethics

June 2011

… A suggestion was made for me to write about a case where Eastern Michigan University (a public institution) dismissed a Christian student from its master’s degree program in school counseling for refusing to counsel a homosexual client during the practicum course. The practicum course and student handbook required, among other things, that all students in the program adhere to the American Counseling Association’s Code of Ethics and Standards of Practice, which, among other things, binds counselors to respect the diversity of clients, to not impose values upon clients inconsistent with counseling goals, and to adhere to a nondiscrimination policy in the delivery of counseling services to consumers. The student refused to provide relationship counseling services to the client because she believes that homosexuality is morally wrong and that it conflicts with her orthodox Christian beliefs. She would not engage in gay affirming counseling, and was dismissed from the program following an informal review and formal hearing process.

The graduate student sued the school in U.S. District Court (Eastern District of Michigan, Southern Division) claiming, among other things, that her dismissal from the program was wrong and that it violated her religious freedom. She claimed that her civil rights (e.g. the “free speech” and “free exercise of religion” clauses of the First Amendment) were violated by the dismissal from graduate school. This case (Ward v. Wilbanks, et al.) pits religious freedom principles against the rights of public universities to run their institutions as they deem appropriate – that is, in a manner that is best for the education of professionals, and ultimately, best for the public. Both the graduate student and Eastern Michigan University moved for summary judgment. The Court granted summary judgment in favor of the University and ruled against the student’s motion for summary judgment. A motion for summary judgment is a procedural maneuver to promptly dispose of civil litigation without the necessity of a trial. Usually, there is no dispute as to the material facts of the case.

The District Court (the trial court) essentially ruled that the University was justified in removing the graduate student from the program and based its decision, in significant part, on the American Counseling Association’s Code of Ethics provisions related to the prohibitions against discrimination in providing services to clients (the public). Most professional mental health associations have codes of ethics or standards that prohibit discrimination in the provision of professional services based upon race, religion, national origin, age, sexual orientation, gender, gender identity, disability, marital status, or disability. Other ACA standards were cited by the Court, such as, but not limited to, the more general duty to respect the dignity of clients and the duty to actively attempt to understand the diverse cultural backgrounds of clients.

The judge also ruled that EMU had a rational basis for requiring students to counsel clients without imposing their own personal values. The Court also found that the University had good reason to adopt the ACA Code of Ethics as the standards applicable to its counseling degree program.

The decision states, in pertinent part:

“In sum, plaintiff unequivocally demonstrated her unwillingness to make any effort at working within the clients’ value systems when they are not in accordance with hers. By insisting on undifferentiated referral of an entire class of clients, plaintiff violates the ACA Code of Ethics….”

The Court points out that the graduate student (the plaintiff):

“… was not required to change her views or religious beliefs; she was required to set them aside in the counselor-client relationship – a neutral, generally applicable expectation of all counselors-to be under the ACA standard.”

The student’s attorney asserts that this decision can result in Christian students across the country being expelled from public universities based upon their moral/legal beliefs. The trial court’s decision is on appeal. I will again write about the lawsuit when I am aware of a decision from the United States Sixth Circuit Court of Appeals.

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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