In recent days, I’ve heard stories about two different students, both expressing anti-gay sentiments in a school setting and both being penalized for that expression. They each filed suit after their respective penalties were imposed, so they should each get the same result, right?

I don’t think so.

First: Jennifer Keeton was a graduate student in counseling at Augusta State University and made no secret of her belief that homosexuality is a choice (and a morally wrong one at that). According to Keeton, faculty members confronted her about those beliefs — how could she properly counsel GLBT individuals if she believed there was something inherently wrong with them? — and required her to complete a “remediation plan” that included reading articles on homosexuality, attending workshops, and increasing her exposure to the GLBT community.

The University informed Keeton that if she refused to comply, she would be expelled. Keeton didn’t want to participate in the plan, so she sued the University, claiming that the University violated her First Amendment rights to free speech and freedom of religion with its enforcement of this remediation plan.

The court denied Keeton’s request for a temporary order prohibiting the University from expelling her, noting that she was not likely to win her case when it went to trial. (Note: Keeton wanted what is called a “preliminary injunction.” When a party loses their request for such an injunction, they often don’t take their case to trial, since the court denying the injunction has found that they would be unlikely to win at trial.)

The court of appeals later affirmed that decision, explaining that the University could lose its accreditation if it allowed Ms. Keeton to sidestep the requirements of a counseling degree. The court compared the rules for counselors to the rules for judges: you have to apply the law even if you don’t agree with it. If you can’t do that, then don’t become a judge (or counselor, in this case).

I whole-heartedly agree with the court’s decision here. If Keeton is so hung up on telling gay people there’s something wrong with them, then she can get a degree from a non-accredited university or open some terrible conversion therapy office of her own. But under no circumstances should Augusta State have to tolerate that behavior from one of their counseling graduate students.

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Second: Daniel Glowacki is a high school student in Michigan. On October 20th, 2010, his school district observed an anti-bullying day to raise awareness of the negative impact of bullying, specifically the bullying of members of the LGBT community. In one of Daniel’s classes, his teacher, Johnson McDowell, asked a student with a Confederate flag belt buckle to remove it, telling her it was offensive. Daniel then asked why it was permissible to wear a rainbow flag, which some people found offensive, but not a Confederate flag, which other people found offensive. McDowell asked Daniel if he supported gay rights, and when Daniel responded that his Catholicism prohibited him from doing so, McDowell asked him to leave the room. Daniel’s mother, with help from the Thomas More Law Center, is now suing the school district and McDowell, claiming that Daniel’s rights to free speech and equal protection were violated. The suit also requests that a religious exception be added to the school’s definition of “harassment speech,” meaning that expression of moral opposition to homosexuality would not be considered harassment.

This case has not been argued or decided yet, so what follows are just my opinions:

First of all, it sounds like McDowell handled this whole situation pretty poorly. I’ve never been a teacher, and it’s easy to play Monday-morning quarterback, but doesn’t this seem like the definition of a “teachable moment”? The story I’ve heard so far doesn’t indicate that Daniel was being belligerent, but rather like he was being a teenager who’s been taught one thing his whole life and is parroting it to whomever asks. What would have happened if McDowell had engaged the class in a discussion on the different symbolism and connotations of the Confederate flag versus the rainbow flag? Teenagers are young in some ways, but aren’t they old enough to be thinking critically about these things, and to discuss different viewpoints respectfully? I certainly think so. And if they have trouble with respectful discussion, then isn’t an anti-bullying day the perfect opportunity to improve upon those skills?

Legally, there are facts about this case that both help and hurt Daniel’s claim. The big issue is that all of this took place in a school setting. If it had been a town council meeting, for example, and Daniel had been asked to leave the meeting because he said that his Catholicism informs his disapproval of homosexuality, the council would be in trouble. But this is a school. Teachers and administrators have a lot more leeway to regulate speech because they need to be able to maintain order.

Courts usually balance the speech rights of the individual against the school’s need to maintain discipline: here, it seems like that balance favors Daniel. As I said, it doesn’t seem to me, based on the facts I’ve seen, that Daniel said anything that would have caused a major disruption. In fact, it seems his comment could have, if handled differently, promoted a worthwhile discussion.

One final note on Daniel’s mother’s request for a religious exemption to the definition of harassment speech: First, this has already been addressed by the legislature, at least as it pertains to a similar proposed state law, and they agreed that one’s faith shouldn’t give anyone a free pass to harass others. Second, even if a law does impede someone’s ability to practice their religion, that law is often still valid if it is a “neutral law of general applicability.” The definition of harassment speech seems to fit the bill: religion isn’t specifically targeted in any way, and everyone has to abide by the same rules.

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Alright. That about sums it up. Do you think that’s a fair assessment of the two cases?