Court procedures in Texas allow for one final appeal of the court’s decision not to hear a case. The AAMFT filed an appeal on June 13. In a rare move, the court granted that appeal. Later this year, the Texas Supreme Court will hear arguments about whether MFTs should be allowed to independently diagnose mental illness.
Update, February 24, 2017 – The Texas Supreme Court agreed to rehear the case, and ruled that MFTs *are* allowed to independently diagnose. More on the ruling can be found here.
Original post, published June 6, 2016 – Ten days ago, the Texas Supreme Court refused a petition for rehearing from marriage and family therapists (MFTs) seeking to preserve their ability to independently diagnose mental illness. The refusal brings at least a temporary close to a years-long fight between MFTs and the Texas Medical Association, with TMA winning. It could impact other master’s-level professionals not just in Texas but around the country.
Jennifer Keeton had refused to treat gay clients, and Maria Salcido alleged that racial bias kept her from finishing her family therapy degree.
There 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.
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.
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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I’ve previously written about the issue here and here, the first of which offers a better review of the details.
Today’s ruling is mixed, siding with the BBS on two key questions and with CAMFT on one:
The BBS was within its authority in determining that “the profession” and “the practice of the profession” mean effectively the same thing.
The BBS was within its authority (and reading the law reasonably) in determining that those seeking grandparenting into LPCC licensure must be tested on any differences between the professions.
The BBS went beyond its authority by determining that a “gap exam” was necessary without adequate consultation with the state’s Office of Professional Examination Services (OPES), as required by law.
Ultimately, the court orders that the decision to require a “gap exam” be set aside until the OPES consultation has taken place (which must be within 60 days) and the BBS makes a determination based in part upon the results of that consultation. Since the BBS and its contracted consultant both previously concluded that there were meaningful differences between the professions, the court ruling on the first two questions above suggests a strong likelihood that the BBS will go forward with an exam, but it is not fully certain.
Updated 1-30-2011: The court heard oral argument on Friday, to no effect — it adopted what had been the tentative ruling. The BBS now has 60 days to consult with OPES and make a final determination on the need for a gap exam.
Update 2-6-2011: CAMFT has released their spin on the Gap Exam ruling, which seems sure to mislead at least some readers. There’s nothing there that’s technically incorrect, but it takes a fair amount of reading to get the full picture. People who just read the headline, or even the headline and the first couple of paragraphs, will likely come away believing there will be no Gap Exam. Since CAMFT lost on the two substantive arguments that would suggest the exam is unnecessary, it still seems likely that an exam will be given.
Also updated the headline, as the court adopted its tentative ruling.