counseling

Eastern Michigan settles Julea Ward case

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The university settled in December and will pay Ward $75,000, according to AnnArbor.com.

JudgesTools IconJulea Ward’s lawsuit against her graduate program in counseling at Eastern Michigan University took several interesting turns last year. The case started when Ward refused to counsel a gay client as part of her training; the university determined this was discrimination, and expelled Ward from the program. She sued, claiming she was being singled out for her religious beliefs. I’ve previously discussed the case here and here.

Ward’s case is often discussed in the same breath as Jennifer Keeton’s. Keeton sued Augusta State University, where she had been a graduate student in counseling, after the university expelled her for clearly stating her refusal to counsel gay and lesbian clients and her unwillingness to complete a university-mandated remediation plan.

While Keeton lost her case, Ward appeared to at least have some chance of winning hers. In a footnote within his ruling in favor of Augusta State University in the Keeton case, United States District Judge J. Randal Hall made it clear that the two cases had similar themes but very different specifics (citations removed, and paragraph breaks and emphasis added, for clarity):

This case is distinguishable. In Ward, the plaintiff, a student enrolled in Eastern Michigan University’s graduate counseling program, asked to refer a gay client during her practicum course because she claimed that her faith prevented her from affirming a client’s same-sex relationships. No remediation plan was issued; instead, the plaintiff was promptly dismissed from the program following a formal review. […] The plaintiff in Ward was disciplined after she asked to refer a client, but evidence showed that the university may not have had a policy prohibiting such referrals; indeed, there was evidence that referrals had been permitted for others in the past. […] The Sixth Circuit held that a juror could find that the plaintiff was dismissed because of her religious views.

This case presents a stark contrast: Keeton was cited by faculty for statements which evinced an intent to clearly violate program policies, i.e., according to the remediation plan, faculty believed that Keeton had expressed an interest in conversion therapy. Moreover, Keeton later stated definitively, and without mention of referral, that she would not withhold open judgment of a client’s sexual choices in a counseling session, action also in violation of program policies. One final set of facts serves to
distinguish the two cases – Keeton was not, like the plaintiff in Ward, summarily dismissed. Instead, she was subjected to a remediation plan, the details and import of which was painstakingly explained by faculty members through meetings, written plans, emails, and face-to-face discussions. […]

In sum, the patience and measure exhibited by faculty members during the course of Keeton’s protracted remediation proceedings, coupled with the nature and content of their efforts to ensure that Keeton understood how her actions violated professional ethics and could harm future clients, mark this case as different from Ward.

Eastern Michigan, apparently seeing the writing on the wall, chose to settle with Ward and has agreed to pay her $75,000. Notably, the university is neither admitting any wrongdoing nor changing any of its policies as a result of the ruling, according to AnnArbor.com. In the meantime, Michigan’s legislature debated the “Julea Ward Freedom of Conscience Act” — which would have allowed graduate students in mental health to refuse to treat gay and lesbian clients if providing treatment would conflict with the student’s religious beliefs.

I’ve written about that and a similar “conscience clause” bill that did become law in Arizona. A similar bill has now been proposed in Tennessee, which I’ll tackle in a separate post.

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Your comments are welcomed in the comments section below, by email at ben[at]bencaldwell[dot]com, or in the conversation on my Twitter feed.

Universities win two discrimination lawsuits brought by student therapists

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Jennifer Keeton had refused to treat gay clients, and Maria Salcido alleged that racial bias kept her from finishing her family therapy degree.
                                                                                                                                                                                                                                                                                                           

JudgesTools IconThere have been at least three recent lawsuits involving students in the mental health professions and allegations of discrimination. In recent rulings, universities prevailed in two of those suits: Jennifer Keeton’s case against Augusta State University, and Maria Salcido’s case against Southern Miss University. The third case, in which Julea Ward sued Eastern Michigan University, remains in court.

In 2010, Jennifer Keeton sued Augusta State. The school had expelled her from its counseling program after she had said many times over in classes and in meetings with school officials that she would not counsel gay or lesbian clients. The university offered Keeton a remediation plan, with the hope of aiding her in not imposing her values on clients. Keeton claimed the university was trying to force her to change her religious beliefs. The university insisted that the intent of the remediation was in keeping with the ACA Code of Ethics. The ACA Code requires that counselors not impose their values on clients, regardless of what the counselor’s personal values may be.

A federal district court last month ruled in favor of the university. Importantly, the judge in the case also reinforced the importance of professional ethical codes, noting

[W]hen someone voluntarily chooses to enter a profession, he or she must comply with its rules and ethical requirements. […] The ACA and ASCA Codes, with their emphasis on the counselor’s role in facilitating personal client growth and self-determination, both expressly proscribe the imposition of a counselor’s personal views in counseling situations.

The AAMFT Code of Ethics, like most professional codes, includes a non-discrimination statement. Interestingly, the AAMFT Code does not include the kind of clear prohibition against professionals imposing their own personal values that is found in the codes of other organizations. At best, it is implied in the AAMFT Code. That could become important if an MFT program is ever challenged in court over similar issues.

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In a separate case last year, Maria Salcido filed a claim against Southern Miss, alleging that racial bias kept her from completing her MFT degree there. She had withdrawn after being unable to find a placement site for her required externship experience. Her suit accused the university of preventing her from getting a placement because of her race.

She not only lost her case, the language of the court ruling against her suggests frustration that she wasted everyone’s time:

[Salcido’s] bare factual allegations are seasoned with healthy doses of legal conclusions and fall far short of plausibly suggesting a discriminatory state of mind on the part of any defendant.

That was how the court reacted to her discrimination claim; she didn’t fare any better on the other claims she made against the university. The entirety of her suit was dismissed with prejudice.

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Together, these rulings appear to suggest that students cannot use accusations of discrimination to get what they want from graduate programs in mental health, particularly when (as in Keeton’s case) they are asking to overrule academic decisions tied to the ethical standards of the profession the student is trying to get into. Unfortunately, it is too early to say the question is settled: the Julea Ward case is still out there, and it bears more than a few things in common with Keeton’s. (The judge in Keeton’s case uses a lengthy footnote to discuss what is different between the Ward and Keeton cases [pages 49-50], one of many reasons that ruling is worth reading.) I’ve previously written about the Ward lawsuit, a recent ruling that keeps the Ward case alive, and “conscience clause” legislation proposed as a direct result of Ward’s experience.

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It’s time for national licensure laws in mental health

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State differences in license requirements are small and serve no meaningful purpose. Considering mental health care as interstate commerce would improve access to care for those in need.
                                                                                                                                                                                                                                                                                                           

Blank USA, w territoriesMarriage and family therapy students and interns today see similar steps on their career path no matter where they live in the US. Most states require a masters degree based on COAMFTE requirements, roughly 3,000 hours of supervised experience, and a passing score on the National MFT Exam to be licensed. The rules from state to state are not identical, though: As just a quick sampling, Delaware requires 3,200 hours. New Jersey separates out requirements for general counseling experience and MFT experience. And California doesn’t recognize the national exam. (It’s now a few years out of date, but go to page 258 of this PDF for a very well-done table of 2007 state MFT licensure requirements around the country, put together by California’s Board of Behavioral Sciences.)

There is no real need for these differences. In theory, having states determine their own licensure standards should ensure that each state is preparing professionals to meet the unique needs of that state’s population; in practice, though, that isn’t what happens. The development and refining of licensure laws has been about balancing national standards with political compromise. Neither the public nor the professions are demonstrably better-served by an MFT who passed the California exams as opposed to the National MFT Exam (or by 3,200 hours of experience versus 3,000, or any of the other minute differences between states). The state differences in mental health licensing do little more than create headaches for those professionals trying to move from one state to another.

The time has come for national licensing laws, for family therapists as well as the rest of the mental health professions.

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The professions understand that license portability is a problem. Each of the national mental health organizations has a model licensure law that they use as an ideal example for state legislatures around the country. (The American Psychological Association recently amended theirs to allow states to forgo a postdoctoral internship requirement.) These model acts promote the standardization of requirements from one state to the next, easing license portability for professionals and helping ensure to the public that the meaning of a professional title will not dramatically change when one crosses a state line. Those are both worthy aims. Unfortunately, they have not been especially successful.

National licensure has not been pursued in mental health because of concerns about the U.S. Constitution, which leaves to the states any powers not expressly given to the federal government. Since the licensing of professions is not a federal power in the Constitution, the states have needed to take it on themselves. The result has been our patchwork of state laws for each profession.

Two things have changed in the past decade to create the right conditions for national licensure to emerge. One has been the completion of a nation of licensure for MFTs and LPCs. The other has been the rapid growth of telemedicine.

  1. A nation of licensure. In 2009, Montana became the 50th state to license MFTs and my great state of California became the 50th state to license counselors. This fact alone does not justify a single, national standard for licensure, but it is vital to the context of the discussion.

  2. Growth of telemedicine. The internet has hastened the development of remote services, but did not create it. Therapists have been working with clients by phone since the early days of psychotherapy. Today, through secure videoconference connections, a therapist in his or her office in a major city could easily work with clients anywhere in the world where the technological means exist for such a connection. The American Counseling Association’s Code of Ethics has outlined clear and specific guidelines for therapists providing services by phone or internet. While there is limited data on the effectiveness of technology-assisted therapy, for many people who are in rural communities, have specific language needs, or simply lack the means to go to a therapist’s office, the alternative to phone- or internet-based treatment is no treatment at all. This point is where the Constitutional argument would seem to shift: The internet can make psychotherapy a form of interstate commerce. Regulating interstate commerce is squarely within the federal government’s powers under the Commerce Clause.

It has been repeatedly well-documented that rural areas face a severe shortage of mental health providers. At the same time, early-career practitioners in mental health — often living in urban areas — regularly fret about whether they can make a living in their chosen fields. A national licensure standard would go a great distance toward easing both concerns.

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Of course, I am a family therapist, not a constitutional lawyer. So I could be way, way off-base here in my reasoning when it comes to the law. If so, please say so in the comments! As the old quotation goes, I never learned anything from anyone who agreed with me. So send your disagreeable emails to ben[at]bencaldwell[dot]com, post in the comments below, or be pithy with a message to my Twitter feed.

Julea Ward wins court ruling, while legislation bearing her name advances

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Her religious discrimination suit is returned to a federal jury. Meanwhile, a proposed law in Michigan would allow students to refuse to treat any client they chose, out of any genuine religious or moral belief.
                                                                                                                                                                                                                                                                                                           

EMUstudentCenterYpsilantiMIJulea Ward has enjoyed two big victories so far this year.

For the first time, she won a court ruling in her case against Eastern Michigan University, which had disciplined her for refusing to provide counseling services to a gay client as part of her graduate practicum training. Just weeks later, legislation bearing her name moved forward in the Michigan legislature despite protests from universities and professional associations that the Julea Ward Freedom of Conscience Act would make it harder to effectively train mental health professionals.

In the court case, Ward’s victory was limited but it does keep her case alive. While not making a determination of the merits of the case, the 6th Circuit Court of Appeals ruled that Ward should have the opportunity to argue that her religious beliefs were used against her, according to the Associated Press. The case will be returned to a Detroit-based federal jury.

In the Michigan legislature, the House Education Committee advanced HB5040, the bill bearing Ward’s name. According to the Holland Sentinel, the bill would “prohibit religious discrimination against students who are studying counseling, social work, and psychology.” That description seems a bit narrower to me than the bill itself, which goes beyond just prohibiting discrimination: it actually prohibits universities from any disciplinary actions against students who refuse to treat clients based on “a sincerely held religious belief or moral conviction of the student, if the student refers the client to a counselor who will provide the counseling or services.”
You can keep up with the bill’s progress here: HB5040.

I wrote about Ward’s case for Family Therapy Magazine a couple of months ago (full article: Can a religious therapist refuse to treat gay and lesbian clients?). She described the events that led to her lawsuit in this video for the Christian-based legal organization that is defending her:

I’ll be writing more about HB5040 and other “conscience clause” legislation in the near future. In the meantime, the Pew Research Center offers a fascinating legal history of conscience issues in health care.

Update: About a week after this post was initially published, I posted another piece about conscience clause legislation.

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