Schoolhouse Rock: Lessons of Homosexual Tolerance in Keeton v. Anderson-wiley from the Classroom to the Constitution - Billie Pritchard

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2011
• Citation: Vol. 62 No. 3

Casenote

Schoolhouse Rock: Lessons of Homosexual Tolerance in Keeton v. Anderson-Wiley from the Classroom to the Constitution

I. Introduction

The public educational system is charged with more than the academic success of America's youth. Educators are responsible for "nurtur[ing] students' social and moral development by transmitting to them an official dogma of community values."¹ As Keeton v. Anderson-Wiley² demonstrates, community values are rapidly changing to acknowledge new constructions of homosexual identity and constitutional interests relative to historically marginalized attributes.³ In Keeton the United States District Court for the Southern District of Georgia denied a

1. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 278 (1988) (Brennan, J., dissenting) (quoting Bd. of Educ. v. Pico, 457 U.S. 853, 864 (1982)) (internal quotation marks omitted).

2. 733 F. Supp. 2d 1368 (S.D. Ga. 2010).

3. Compare id. at 1381 (upholding college curriculum requiring counselors-in-training to set aside religious reservations to acknowledge clients' homosexual life choices), with Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (refusing to protect an individual's right to engage in same-sex sexual activity).

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preliminary injunction to a student asserting various First Amendment⁴ claims against her university for requiring her to complete remedial training for counseling gay, lesbian, bisexual, transgender, and queer/questioning (GLBTQ) clients.⁵ The district court followed the Supreme Court of the United States's analysis of school-sponsored speech in Hazelwood School District v. Kuhlmeier.⁶ But more significantly, the district court's straightforward acceptance of homosexuality remained a pervasive theme in Keeton.⁷ As such, Keeton represents a growing culmination of homosexual rights, emphasizing the readiness of modern courts to both reflect and shape public opinion with a positive acknowledgement of the homosexual community. As momentum builds toward an evaluation of same-sex marriage by the Supreme Court,⁸ such vital undercurrents of social construction will decidedly bear on the constitutional rights of homosexuals in the United States.

II. Factual Background

In the fall of 2009, Jennifer Keeton enrolled at Augusta State University (ASU) to pursue a master's degree in Counseling Education, hoping to become a school counselor.⁹ In the context of various curricular activities, Jennifer continually voiced her condemnation ofthe homosexual "lifestyle" and her support of "conversion therapy" for GLBTQ clients based on her religious ideals.¹⁰ Alarmed by Jennifer's desire to alter her future clients' sexual orientations, faculty members grew concerned about Jennifer's ability to separate her religious-based moral judgments from her professional role as a counselor. If Jennifer continued to refuse to set aside her viewpoint out of respect for a potential client's sexual identity, she would fail to meet the ASU

4. U.S. Const. amend. I.

5. Keeton, 733 F. Supp. 2d at 1372-73, 1381.

6. 484 U.S. 260 (1988).

7. See 733 F. Supp. 2d at 1375-81.

8. See, e.g., Perry v. Schwarzenegger, 702 F. Supp. 2d 1132 (N.D. Cal. 2010) (addressing the constitutionality of a recent amendment to California's constitution denying marital recognition to same-sex couples); Gill v. Office of Personnel Management, 699 F.

Supp. 2d 374, 376-77 (D. Mass. 2010) (internal quotation marks omitted) (challenging the

constitutionality of the Defense of Marriage Act that defined "marriage" as "a legal union between one man and one woman as husband and wife" and "spouse" as "a person of the opposite sex who is a husband or wife").

9. Keeton v. Anderson-Wiley, 733 F. Supp. 2d 1368, 1371 (S.D. Ga. 2010). 10. Id. at 1371-72.

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curricular requirements, which are based on American Counseling Association (ACA) standards.¹¹

To address Jennifer's potential problems, the faculty created a Remediation Plan in accordance with program policy.¹² Remediation Plans are commonly used by faculty to assist students struggling with multicultural clients and to maintain university accreditation by complying with ACA ethical standards.¹³ Under Jennifer's Remediation Plan, she was required to complete several assignments aimed at increasing her cross-cultural communication skills with members ofthe GLBTQ community, ranging from self-reflective writing to attendance at the Gay Pride Parade in Augusta, Georgia. The faculty assured Jennifer that she would not be required to change her religious beliefs to successfully complete the counseling program.¹⁴ Jennifer expressed growing concern, however, that she would be required "to affirm the pro-[GL]BTQ orthodoxy"¹⁵ in derogation of her First Amendment¹⁶ freedom of speech.¹⁷

Hoping to avoid expulsion from ASU for failure to complete the curricular requirements under the Remediation Plan, Jennifer filed a verified complaint and sought a preliminary injunction based on alleged violations of her civil rights. Jennifer's limited brief for injunctive relief included the following First Amendment-based claims: viewpoint discrimination, compelled speech, restriction of free belief on personal choice, and retaliation.¹⁸ Relying on Hazelwood School District v. Kuhlmeier¹⁹ and a recent, nearly identical case from the United States

11. Id.

12. Id. at 1372. All students could be subject to a Remediation Plan outlined in ASU's counseling program handbook:

The student will receive a Remediation Plan from her or his advisor (which has been developed after a personal conference with the advisor and another faculty member(s)) outlining the faculty's concerns and stating that the student has been placed on remediation status. In addition, the Remediation Plan will delineate what conditions the student must meet to be removed from remediation status. The student will also be informed ofthe consequences ofthe failure to comply with the outlined conditions, including the possibility that the student will be dropped from the Program. Id. at 1372 n.4.

13. Id. at 1371 n.1, 1375.

14. Id. at 1372-74.

15. Id. at 1379 (internal quotation marks omitted).

16. U.S. Const. amend. I.

17. Keeton, 733 F. Supp. 2d at 1379.

18. Id. at 1374.

19. 484 U.S. 260 (1988).

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District Court for the Eastern District of Michigan,²⁰ the Southern District of Georgia denied the preliminary injunction.²¹ The district court threw out the case in light of ASU's right to impose reasonable academic standards in its curricular program despite Jennifer's religious

apprehension.²²

III. Legal Background

A. The Broken Moral Compass: Early Discrimination

Although the court in Keeton²³ focused on the constitutional parameters of school-sponsored speech rather than delving into moral and political acceptance of homosexuality, this issue was at the heart of Jennifer's suit.²⁴ Keeton is a fresh voice in a long conversation about the traditional role ofthe teacher and counselor as the representative of social values. Courts have consistently given legal consideration to the social role of educators, asserting that "school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the school[] as a part of ordered society."²⁵ Given the vital role of maintaining the structure of "ordered society" through America's youth,²⁶ teachers and courts must answer the question: what is an ordered society? As the juxtaposition of Keeton and earlier cases suggest, society now includes acknowledgment of the historically marginalized homosexual community.²⁷

Conversations about homosexuality were historically restricted in the classroom,²⁸ largely due to the traditional majoritarian view that homosexuality was wholly immoral.²⁹ This social construction abrogated any discussion about sexual orientation with students, forcing teachers and school officials to conceal their own self-identification as

20. Ward v. Wilbanks, No. 09-CV-11237, 2010 WL 3026428 (E.D. Mich. July 26, 2010).

21. Keeton, 733 F. Supp. 2d at 1376, 1381.

22. Id. at 1379-81.

23. 733 F. Supp. 2d 1368 (S.D. Ga. 2010).

24. See id. at 1375.

25. Alder v. Bd. of Educ., 342 U.S. 485, 493 (1952).

26. See id.

27. See, e.g., Keeton, 733 F. Supp. 2d at 1379-80; Ward v. Wilbanks, No. 09-CV-11237, 2010 WL 3026428, at *18 (E.D. Mich. July 26, 2010).

28. See, e.g., Jason R. Fulmer, Dismissing the "Immoral" Teacher for Conduct Outside the Workplace-Do Current Laws Protect the Interests of Both School Authorities and Teachers?, 31 J.L. & Educ. 271, 274-75 (2002).

29. See, e.g., John D'Emilio, Making and Unmaking Minorities: The Tensions Between Gay Politics and History, 14 N.Y.U. Rev. L. & Soc. Change 915 (1986).

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homosexual.³⁰ This social standard was enshrined with a broader scope in Bowers v. Hardwick,³¹ a case originating in Georgia, in which the Supreme Court held the fundamental right of privacy was restricted to traditionally held institutions including marriage, family, and procre-ative activity, exclusive of homosexual sodomy.³² Although the Court in Bowers did not address other aspects ofhomosexual individuals' lives beyond the act of sodomy,³³ various courts had already established precedent attacking other aspects of homosexual self-identification and parenting.³⁴ These negative perceptions of homosexuality were analogously and strictly brought to bear on school officials and educators in their unique roles as the "exemplar[s]" of American values.³⁵

Social objectives traditionally have required school officials to serve as models of American values while simultaneously fixing those virtues in the nation's youth.³⁶ Teachers have accordingly been held to a higher standard of conduct with accompanying scrutiny: "His habits, his speech, his good name, his cleanliness, the wisdom and propriety of his official utterances, his associations, . . . and the character...