1 

 UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN 

 SOUTHERN DIVISION 

JULEA WARD, 

Plaintiff, 

Case No. 09-CV-11237 

vs. HON. GEORGE CARAM STEEH 

ROY WILBANKS, et al., 

Defendants. 

_____________________________/ 

OPINION AND ORDER DENYING PLAINTIFF’S MOTION 

FOR SUMMARY JUDGMENT [DOC. # 79] AND GRANTING 

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DOC # 82]

This matter is before the court on motions for summary judgment filed by plaintiff, 

Julea Ward, and defendants, Eastern Michigan University officials. The court held oral 

argument on the motions on June 24, 2010. For the reasons stated in this opinion and 

order, plaintiff’s motion for summary judgment is DENIED and defendants’ motion for 

summary judgment is GRANTED. 

FACTUAL BACKGROUND

In 2006, plaintiff applied and was admitted to the Master’s Degree program (the 

“Program”) in counseling at Eastern Michigan University (“EMU” or “University”), 

endeavoring to pursue a degree that would allow her to become a high school 

counselor. The Program requires that students complete not only traditional 

lecture/discussion courses, but also a “Practicum” course, which involves actual 

counseling of real clients in a clinic operated by the University and supervised by 

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University faculty. The Practicum course and Student Handbook require that all 

students in the Program abide by the American Counseling Association (“ACA”) Code of 

Ethics and Standards of Practice and the American School Counselor Association 

(“ASCA”) Ethical Standards for School Counselors. In order to maintain its accreditation 

through the Council for Accreditation of Counseling and Related Educational Programs 

(“CACREP”), the students must have “curricular experiences and demonstrated 

knowledge” in the ACA and ASCA Ethics Codes. Defendants assert that CACREP 

accreditation is integral to maintaining the Program’s status as a respected postsecondary counseling program. Moreover, the State of Michigan approves CACREP 

accreditation standards and requires professional counselors and school counselors to 

be trained in ethics. M.C.L.A. §§ 338.1753(4), 333.18107(1)(b). 

 Plaintiff strictly adheres to orthodox Christian beliefs, a fact which she shared in 

her application to the Program. Prior to the events instigating this litigation, plaintiff 

openly shared her view of homosexuality as being morally wrong during classroom 

discussion and in her coursework. For example, plaintiff turned in a paper for a class 

involving the potential for religion-based values conflicts with clients for which she 

received a perfect score. Specifically, she wrote, “[i]n situations were [sic] the value 

differences between a counselor and client are not amenable, ‘standard practice’ 

requires that the counselor refer his/her client to someone capable of meeting their 

needs.” Although plaintiff claims that her professors’ “disagreeable” reactions to her 

opinions “shut down” her point of view, she nonetheless received A’s in all of her 

classes. 

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Plaintiff enrolled in the Practicum in January 2009. The controversy arose when 

plaintiff encountered a client who sought counseling regarding depression, but who had 

previously been counseled about his homosexual relationship. After plaintiff reviewed 

the file approximately two hours before the scheduled appointment, she asked her 

supervisor, Dr. Callaway, under whose license she was practicing, whether she should 

refer the client to another counselor because she could not affirm the client's 

homosexual behavior. Time constraints precluded a full discussion of the conflict, but 

given her desire not to harm the client, Dr. Callaway opted to cancel the appointment 

and reschedule it for a later date with a different counselor. 

Dr. Callaway later informed plaintiff that she would not be assigned any more 

clients, and that she, Callaway, would be requesting an informal review before herself 

and plaintiff's advisor, Professor Dugger, as to whether she had violated University and 

ACA policies prohibiting "unethical, threatening, or unprofessional conduct," an "inability 

to tolerate different points of view," "imposing values that are inconsistent with 

counseling goals," and "discrimination based on . . . sexual orientation." Defendants 

stated that this informal review was scheduled due to plaintiff’s performance in Praticum 

and in order to discuss her obligation to provide counseling based on the client’s values 

and not those of the counselor. (Tr. of Formal Review, 4:19-5:17). Dr. Dugger insists 

that during the review, she repeatedly assured plaintiff that she was “not incompetent.” 

(Feb. 4 Email String Among Callaway, Dugger, & Tracy). A letter dated February 2, 

2009 documents the informal review: 

During the meeting, Dr. Callaway expressed a serious concern about 

your performance in practicum. Specifically, she indicated that you 

have communicated bias against clients who identify as lesbian, gay 

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or bisexual and that you have refused to accept a gay person as a 

client in practicum with the explanation that counseling gay people 

about relationship issues violates your religious beliefs. Dr. Callaway 

explained that the EMU counseling program, in accordance with the 

ethical standards of the counseling profession (American Counseling 

Association, 2005), requires that students demonstrate in practicum 

the ability to consistently set aside their personal values or beliefs 

systems and work with the value system of the client. She stated that 

your refusal to see a client presenting with concerns about his gay 

relationship signified an unwillingness or inability on your part to meet 

this expectation. 

At the end of the informal review, plaintiff was given the choices of: (1) completing a 

"remediation program" directed; (2) voluntarily leaving the Counseling Program; or (3) 

requesting a formal hearing. The remediation program was contingent on “Ms. Ward’s 

recognition that she needed to make some changes.” (Tr. of Formal Review, 8:4-7). 

Plaintiff “communicated an attempt to maintain this belief system and those behaviors,” 

refused to participate in the remediation program, and instead chose to have a formal 

hearing. Id. 

A formal hearing was held on March 10, 2009 and was attended by Professors 

Callaway and Dugger. Others serving on the hearing panel were Professors Ametrano, 

Francis, and Marx, and student representative Stanifer. During the review, plaintiff said 

that while she objected to counseling homosexual clients on their same-sex 

relationships, she would counsel them on any other issue; moreover, she refused to 

affirm any behavior that “goes against what the Bible says.” In addition, plaintiff stated 

that she disagreed with the ACA’s prohibition on reparative therapy (viz., therapy 

targeted at changing a homosexual individual’s sexual orientation), but that she would 

comply with such rules. Also during the review, Dr. Francis engaged plaintiff in the 

following “theological bout”: 

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Francis: [I]s anyone more righteous than another before God? 

Ward: Is anyone more righteous than another before God? 

Francis: Yeah. 

Ward: God says that we’re all the same. 

Francis: Yeah. 

Ward: That’s what God says. 

Francis: OK, so, if that’s your direction . . . how does that then fit with 

your belief that . . . and I understand that you’re not, because the 

word you keep using is affirming, you’re not, which comes across as 

I’m not going to condone that behavior, I’m not going to affirm it, so 

I’m not going to go that way. 

Ward: OK. 

Francis: If that’s true, then aren’t you on equal footing with [persons 

engaging in homosexual behavior]? With, with everyone? 

Ward: Absolutely, Dr. Francis. 

Francis: OK. Then doesn’t that mean that you’re all in the same 

boat and shouldn’t [persons engaging in homosexual behavior] be 

accorded the same respect and honor that God would give them? 

Ward: Well, what I would say is, again, I’m not making a 

distinguishable difference with the person . . . . I’m addressing the 

behavior. 

Francis: Okay, so it’s love the saint, condemn the sinner, or 

condemn the sinCI’m sorry. 

Ward: If that’s the wording you want to use. 

Francis: What wording would you use? 

Ward: What I’ve just said. I’m not opposed to any person . . . . I 

believe that we are all, um, God loves us all, is what I believe. 

Id. at 29:1-30:5. The panel also asked plaintiff whether she viewed her “‘brand of 

Christianity’ as superior to that of other Christians who may not agree with her, like Dr. 

Francis [a formerly ordained minister].” Id. at 28:6-14. 

Plaintiff was informed in a March 12, 2009 letter that the panel unanimously 

concluded that she should be dismissed from the counseling program. A portion of the 

letter reads: 

I am writing to convey to you the decision of the Formal Review 

Committee [] regarding the concerns about your behavior in COUN 

686 Counseling Practicum . . . . It was the unanimous opinion of the 

committee that clear and convincing evidence was presented that, by 

your behavior, you have violated the ACA Code of Ethics . . . . 

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Additionally, by your own testimony, you declared that you are 

unwilling to change this behavior. Your stance is firm despite 

information provided directly to you throughout your program and 

discussions you acknowledge having with faculty regarding the 

conflict between your values that motivate your behavior and those 

behaviors expected by the profession. 

Plaintiff, however, believes that defendants dismissed her in part because of her 

expressions of her religious beliefs regarding homosexuality, as the University identified 

in its letter scheduling the formal review “your statements and responses to feedback 

about working with individual clients who identify as gay, lesbian, bisexual or 

transgendered delivered in COUN 571CCross Cultural Counseling (Fall 2007 

Semester); individual supervisions meetings (1/20/09 and 1/27/09); and the informal 

review meeting” as issues “of concern.” (Feb. 19 Letter from Dugger to Ward). 

Although plaintiff appealed the panel's decision to Dean Polite in a March 20, 2009 

letter, arguing that she complied with the ACA Code of Ethics, the dismissal was 

affirmed. 

 As discussed supra, the Student Handbook requires students to conduct 

themselves in a manner that is consistent with University policies, including the ACA 

Code of Ethics. (Handbook at 13). Moreover, the Handbook outlines various behaviors 

that result in disciplinary action: 

Academic disciplinary action may be initiated when a student exhibits 

the following behavior in one discrete episode that is a violation of 

law or of the ACA Code of Ethics and/or when a student exhibits a 

documented pattern of recurring behavior which may include, but is 

not limited to . . . [u]nethical, threatening, or unprofessional conduct; . 

. . [c]onsistent inability or unwillingness to carry out academic or field 

placement responsibilities; . . . inability to tolerate different points of 

view, constructive feedback or supervision. 

(Id. at 14). 

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 The ACA Code of Ethics provides that a counselor’s primary responsibility . . . is 

to respect the dignity and to promote the welfare of clients.” (ACA Code of Ethics, 

A.1.a). The Code continues, “[c]ounselors are aware of their own values, attitudes, 

beliefs, and behaviors and avoid imposing values that are inconsistent with counseling 

goals. Counselors respect the diversity of clients . . . .” (Id. at A.4.b). Indeed, 

counselors are required to “actively attempt to understand the diverse cultural 

backgrounds of the clients they serve,” (id. at Introduction) and counselor educators are 

encouraged to infuse multicultural/diversity competency in their training programs (id. at 

E.11.c). The ACA also binds counselors to comply with a nondiscrimination policy, 

which prohibits them from “condon[ing] or engag[ing] in discrimination based on age, 

culture, . . . sexual orientation, marital status/partnership . . . . Counselors do not 

discriminate against clients . . . in a manner that has a negative impact . . . .” (id. at 

C.5). 

 Regarding referrals, the ACA recommends that “[i]f counselors determine an 

inability to be of professional assistance to clients, they avoid entering or continuing 

counseling relationships.” (Id. at A.11.b). This excerpt is consistent with the opinion of 

ACA Chief Professional Officer David Kaplan that “[t]here is no statement in the ACA 

Code of Ethics that referral can be made on the basis of counselor values” unless they 

are counseling “terminally ill clients who wish to explore options for hastening their 

death.” Moreover, Kaplan submitted an expert report in which he agreed with the 

review committee’s decision that plaintiff had violated the ACA Code of Ethics by 

imposing her own values on a client, which is “inconsistent with the counseling goal of 

nondiscrimination on the basis of sexual orientation.” (Kaplan Expert Report, 6). 

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 The ACA also contemplates the supervisor-counseling student relationship. 

Firstly, “[c]ounselors-in-training have a responsibility to understand and follow the ACA 

Code of Ethics and adhere to applicable laws [and] regulatory policies . . . . Students 

have the same obligation to clients as those required by professional counselors.” 

(ACA Code of Ethics F.8.a). Secondly, supervisors are required to provide counseling 

students with feedback and appraisals of their work (id. at F.5.a); if the supervisor 

becomes aware of a limitation impeding the supervisee’s performance, she must “assist 

supervisees in securing remedial assistance when needed.” (Id. at F.5.b). Similarly, 

“[c]ounselor educators may require trainees to seek professional help to address any 

personal concerns that may be affecting their competency.” (Id. at F.7.b). Dismissal 

from a training program is appropriate “when those supervisees are unable to provide 

competent professional services.” (Id. at F.5.b).

Course textbooks offer commentary on counselor imposition of values, how to 

handle a values conflict, and the propriety of referrals: 

[A]void sharing a particular value you hold as a way to steer your 

client toward embracing your value . . . . [I]t is essential that you 

respect the rights of your clients to hold a different set of values . . . . 

We hope that there would be very few instances where you would 

have to tell clients that you could not work with them because you do 

not agree with their value system. Your job is not to judge clients’ 

values, but to help them explore and clarify their beliefs and apply 

their values to solving their own problems . . . . If you find yourself 

struggling with an ethical dilemma over value differences, we 

encourage you to seek consultation. Supervision is often a useful 

way to explore value conflicts with clients. After exploring the issue 

in supervision, if you are still not able to work with a client, the ethical 

course of action might be to refer the client to another professional. 

Yarhouse and VanOrman (1999) contend that value conflicts in the 

therapeutic relationship are inevitable. Merely having a conflict of 

values does not necessarily imply the need for a referral, for it is 

possible to work through a conflict successfully. Challenge yourself 

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to determine what it is about a client or a particular value difference 

that prompts you to want to make the referral . . . . We hope that you 

would not be too quick to refer and that you would consider a referral 

only as the last resort. 

Marianne Schneider Corey & Gerald Corey, Becoming a Helper 222-24 (2007). The 

textbook then further contemplates how counselors should handle issues related to 

homosexuality and bisexuality: 

If you hope to work effectively with these [homosexual] clients, it is 

absolutely essential that you begin by becoming aware of and 

challenging your own attitudes and assumptions about homosexuality 

and bisexuality. It is also essential that you identify your own biases, 

challenge any myths and misconceptions that you might hold, and 

that you be open to understanding how your values regarding sexual 

orientation are likely to affect your work . . . . Helpers who may work 

with lesbian, gay, and bisexual people are ethically obligated not to 

allow their personal values to intrude into their professional work. 

Note that the ethics codes of the ACA (2005), the APA (2002) . . . 

clearly state that discrimination, or behaving differently and usually 

unfairly toward a specific group of people, is unethical and 

unacceptable. 

Id. at 224, 226. 

 On the other hand, this textbook also contains the following excerpt citing to one 

2003 empirical study: 

Although helping professionals have personal values about sexual 

practices, the study found that when practitioners’ beliefs conflict with 

those of clients, they appear to be able to avoid imposing their 

personal values on clients. However, 40% had to refer a client 

because of a value conflict. This research supports previous 

conclusions that the practice of therapy is not value free, particularly 

where sexual values are concerned. 

Id. at 235-36. A different textbook reads: 

In interactions with clients, it is impossible to be “value free” . . . . 

[V]alues that reflect our ideas about morality, ethics, lifestyle, “the 

good life,” roles, interpersonal living, and so forth have a greater 

chance of entering the helping process. . . . There may be times 

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when a referral is necessary because of an unresolved and interfering 

value conflict with a client. . . . If you have a major reservation about 

pursuing selected goals, a referral might be more helpful to the client. 

. . . Referral may be appropriate in any of the following cases: if the 

client wants to pursue a goal that is incompatible with your value 

system; if you are unable to be objective about the client’s concern. 

Sherry Cormier & Paula S. Nurius, Interviewing and Change Strategies for Helpers: 

Fundamental Skills and Cognitive Behavioral Interventions 22, 266 (2003). 

 Plaintiff filed her Complaint on April 2, 2009, alleging that (1) defendants’ 

disciplinary policies and codes of conduct are unconstitutional “speech codes” and 

infringements upon her Fourteenth Amendment Due Process rights; (2) defendants 

violated her First Amendment Free Speech and Free Exercise rights and retaliated 

against her for exercising such rights; (3) defendants violated her First Amendment right 

to be free of compelled speech; (4) defendants engaged in viewpoint discrimination, (5) 

defendants violated the Establishment Clause of the First Amendment; and (6) 

defendants violated her Fourteenth Amendment Equal Protection rights by dismissing 

her from the Program for her Christian beliefs and expressions opposing homosexual 

conduct. Plaintiff asserts that she did not violate any ethical codes in referring a client 

and that defendants required her to affirm homosexual behavior contrary to her religious 

beliefs, thereafter wrongfully dismissing her when she refused to comply. Defendants, 

on the other hand, allege that they did not dismiss plaintiff based on her religious 

beliefs, but rather that she violated the ethical codes the University decided to adopt 

pursuant to its broad powers to determine its curriculum. The parties have filed cross 

motions for summary judgment, which are presently before the court. 

STANDARD FOR SUMMARY JUDGMENT

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 Federal Rule of Civil Procedure 56(c) empowers the court to render summary 

judgment "forthwith if the pleadings, depositions, answers to interrogatories and 

admissions on file, together with the affidavits, if any, show that there is no genuine 

issue as to any material fact and that the moving party is entitled to judgment as a 

matter of law." See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The 

Supreme Court has affirmed the court's use of summary judgment as an integral part of 

the fair and efficient administration of justice. The procedure is not a disfavored 

procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox 

v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir. 1995). 

 The standard for determining whether summary judgment is appropriate is 

"'whether the evidence presents a sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail as a matter of law.'" 

Amway Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 

2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The 

evidence and all reasonable inferences must be construed in the light most favorable to 

the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 

574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he mere existence of 

some alleged factual dispute between the parties will not defeat an otherwise properly 

supported motion for summary judgment; the requirement is that there be no genuine

issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) 

(emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 

900, 907 (6th Cir. 2001). 

If the movant establishes by use of the material specified in Rule 56(c) that there 

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is no genuine issue of material fact and that it is entitled to judgment as a matter of law, 

the opposing party must come forward with "specific facts showing that there is a 

genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); 

see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere 

allegations or denials in the non-movant's pleadings will not meet this burden, nor will a 

mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 

252. Rather, there must be evidence on which a jury could reasonably find for the nonmovant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252). 

ANALYSIS

I. Fourteenth Amendment Due Process Claim

 Plaintiff characterizes defendants’ disciplinary policy as a “speech code”, 

describing it as a tool used by the University to silence unpopular, or compel favored, 

speech. She then challenges the disciplinary policy on its face due to overbreadth and 

vagueness, arguing, among other things, that the policy fails to give notice that a 

referral in Practicum could result in dismissal from the Program. Plaintiff’s due process 

claim fails because the University’s disciplinary policy is not a speech code but is an 

integral part of the curriculum. 

 The policy at issue, which appears in the Student Handbook, incorporates the 

ACA Code of Ethics, and applies to all students in the Counseling Program. In addition 

to being taught in counseling courses, the ACA Code of Ethics, with its 

nondiscrimination section, applies to students enrolled in the Program during their 

academic counseling activities. (Handbook Chapter 5, Departmental Student 

Disciplinary Policy). Contrary to plaintiff’s argument, the Code of Ethics does not apply 

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to non-academic student behaviors, to which only the University Student Conduct Code, 

which is not at issue in this case, applies. 

 The Handbook sets out the Program goals and objectives in Chapter 3. As part 

of developing a professional identity, students are expected to gain an understanding of 

the ACA ethical code. (Handbook at 3.I.C). Another goal is social and cultural diversity, 

where “[s]tudents will be trained through coursework and experiential activities to 

understand the cultural context of relationships, issues and trends in a multicultural and 

diverse society related to the following: . .. sexual orientation, . . . counselors’ roles in . . 

. unintentional oppression and discrimination . . .” (Handbook at 3.II). 

 The University, of course, did not author the ACA Code of Ethics, but in 

incorporating it into the Handbook, it states: 

This material will provide you with information about the principles and 

values upon which the counseling profession is based and about the 

ethics that guide our decision-making. Discussion of ethical issues will be 

infused throughout the COUN curriculum. It is important that you refer 

back to these materials frequently over the course of your studies. 

(Handbook at 13). The ACA is a professional organization, and its Code of Ethics 

defines ethical behavior and best practices in governing the profession of counseling. 

 Plaintiff does not dispute that the Code of Ethics was taught in most courses, 

agreeing at oral argument that it was “pervasive” in the curriculum. The University is 

required to teach the Code of Ethics as part of its accreditation, as required by CACREP 

and the State of Michigan. While agreeing that the University was justified in teaching 

the Code of Ethics to its counseling students, plaintiff objects that the code was 

enforced against students in the program. However, the Code of Ethics itself states that 

it applies to counselors-in-training. (ACA Code of Ethics F.8.a).

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 It was Ms. Ward’s understanding that referrals were permitted and even 

supported by the counseling profession. The ACA Code of Ethics permits referrals if a 

counselor determines they are not able to be of professional assistance to a client in 

Section A.II.B. The required textbooks provide many examples where referral is 

described as an appropriate option. Plaintiff wrote about instances where referral would 

be the proper course of action in her papers. Having learned that referral is acceptable, 

plaintiff contends that she should not have been disciplined for making the referral that 

underlies this case. The facts do not support plaintiff’s argument. 

 The Handbook explicitly provides that an informal review is not disciplinary 

action: 

When a faculty member . . . has a concern about a student’s academic 

behavior or performance . . ., the faculty member will notify the student’s 

advisor who will then convene an informal review conference. The 

purpose of this meeting is not to be interpreted as disciplinary but rather 

as an effort to assist the student in finding ways to improve his/her 

performance or to explore the option of the student voluntarily leaving the 

program. 

(Handbook at 5.B.2). Plaintiff was asked to come before a concerned faculty to discuss 

her behavior. However, instead of exploring options which might allow her to counsel 

homosexuals about their relationships, plaintiff stated that she would not engage in gay 

affirming counseling, which she viewed as helping a homosexual client engage in an 

immoral lifestyle. It was the uncompromising stance taken by plaintiff during the 

informal review that resulted in disciplinary action, in the form of the formal review. 

 The formal charges brought against plaintiff stem from the “violation and your 

stated intention to continue violating the ACA Code of Ethics.” Plaintiff’s “stated 

unwillingness to intentionally and competently provide counseling services to individual 

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clients who identify as gay, lesbian, bisexual or transgendered is not only of grave 

concern, but also a violation of ethical code A.1.” Also referenced were statements and 

responses to feedback in class, supervisory meetings and during the informal review. 

Clearly, it was not one referral, but rather plaintiff’s refusal to counsel an entire class of 

people that resulted in her discipline. 

 Statutes regulating First Amendment activities must be narrowly drawn to 

address only the precise evil at hand. Broadrick v. Oklahoma, 413 U.S. 601, 611 

(1973). A law regulating speech is overbroad if it “sweeps within its ambit a substantial 

amount of protected speech along with that which it may legitimately regulate.” Doe v. 

University of Michigan, 721 F.Supp. 852, 864 (E.D. Mich. 1989). 

 The caselaw propounded by plaintiff addresses campus-wide speech codes, as 

opposed to decisions by university administrators that a student’s behavior violated 

curricular standards. For example, this court examined the University of Michigan’s 

Policy on Discrimination and Discriminatory Harassment in Doe. The policy applied 

specifically to “[e]ducational and academic centers, such as classroom buildings, 

libraries, research laboratories, recreation and study centers”. Id. at 856. The policy 

subjected people to discipline for: 

Any behavior . . . that stigmatizes or victimizes an individual on the basis 

of race, ethnicity, religion, sex, sexual orientation, creed, national origin, 

ancestry, age, marital status, handicap or Vietnam-era veteran status, and 

that . . . [i]nvolves an express or implied threat to an individual’s academic 

efforts . . . or personal safety; or . . . [h]as the purpose . . . of interfering 

with an individual’s academic efforts . . . or . . . [c]reates an intimidating, 

hostile, or demeaning environment for educational pursuits . . . . 

Id. The anti-harassment policy was challenged in court after a student feared he could 

be punished for statements he wanted to make in class, and after another student was 

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accused of violating the policy for saying that “homosexuality was a disease” and that 

he was developing “a counseling plan for changing gay clients to straight.” 

 The court stressed the constitutional protections provided to the public 

expression of ideas, especially in the university setting, “where the free and unfettered 

interplay of competing views is essential to the institution’s educational mission.” Id. at 

863 (citations omitted). The students in Doe were threatened with punishment under the 

policy based on statements they made in class about their personal views. The court 

ultimately found that the policy was unconstitutional because it was overbroad and 

vague. 

 The Sixth Circuit analyzed the anti-discriminatory harassment policy of Central 

Michigan University (“CMU”) in Dambrot v. Central Michigan Univ., 55 F.3d 1177 (6th 

Cir. 1995). The policy defined racial and ethnic harassment as: 

any intentional, unintentional, physical, verbal, or nonverbal behavior that 

subjects an individual to an intimidating, hostile or offensive educational, 

employment or living environment by . . . (c) demeaning or slurring 

individuals through . . . written literature because of their racial or ethnic 

affiliation; or (d) using symbols, [epithets] or slogans that infer negative 

connotations about the individual’s racial or ethnic affiliation. 

The court concluded that, on its face, the policy reached ‘a substantial amount of 

constitutionally protected speech.” Id. at 1182. The court was not persuaded by a 

statement in the policy itself that the university would not apply it in such a way as to 

interfere with individuals’ rights to free speech. The court next considered whether the 

policy was “substantially overbroad and constitutionally invalid under the void for 

vagueness doctrine.” Id. at 1183-84 (quoting Leonardson v. City of East Lansing, 896 

F.2d 190, 195-96 (6th Cir. 1990)). The court concluded that the CMU policy did not 

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provide fair notice of what speech violated the policy, and delegated the duty to define 

the policy terms to university officials, and was therefore void for vagueness. 

 The Third Circuit permanently enjoined Temple University’s sexual harassment 

policy as overbroad in DeJohn v. Temple Univ., 537 F.3d 301 (3rd Cir. 2008). The 

policy was part of Temple University’s Student Code of Conduct, and provided: 

For all individuals who are part of the Temple community, all forms of 

sexual harassment are prohibited, including . . . expressive, visual, or 

physical conduct of a sexual or gender-motivated nature, when . . . (c) 

such conduct has the purpose or effect of unreasonably interfering with an 

individual’s work, educational performance, or status; or (d) such conduct 

has the purpose or effect of creating an intimidating, hostile, or offensive 

environment. 

Id. at 305. The policy was challenged by a history graduate student who felt inhibited in 

expressing his opinions in class concerning women in combat and women in the 

military. The court analyzed the policy as a student free speech case, to which the 

overbreadth doctrine is applicable. Id. at 314. 

 In analyzing the EMU policy at issue, the court must assess whether it concerns 

speech, or, as argued by defendants, an academic curriculum requirement. The court 

must consider the University’s disciplinary policy to determine if it reaches a “substantial 

amount of constitutionally protected speech.” First, the court notes that the policy only 

applies to students in the counseling program. It is significant that the policy at issue is 

not so encompassing that it applies to all students at the University. The policy is 

already more narrow than those involved in DeJohn, Doe and Dambrot. 

 In the ACA Code of Ethics itself, which is incorporated into the disciplinary policy, 

counselors are told to “avoid imposing values that are inconsistent with counseling 

goals.” (ACA Code of Ethics A.4.b). This is not a prohibition on a counselor making 

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statements about their values and beliefs in a setting other than with a client. This 

section is quite narrowly drawn to avoid imposing harm on clients. The section of the 

Code of Ethics addressing “Nondiscrimination” provides: 

Counselors do not condone or engage in discrimination based on age, 

culture, disability, ethnicity, race, religion/spirituality, gender, gender 

identity, sexual orientation, marital status/partnership, language 

preference, socioeconomic status, or any basis proscribed by law. 

Counselors do not discriminate against clients, students, employees, 

supervisees, or research participants in a manner that has a negative 

impact on these persons. 

(ACA Code of Ethics C.5). 

 Plaintiff argues that the scope of defendants’ nondiscrimination policy is so 

broad, it not only includes forcing values on a client, but also judgmental thoughts, 

viewing a person negatively, remaining silent in the face of discrimination, and agreeing 

with something “discriminatory.” Plaintiff attacks the use of the word “condone” in the 

Code of Ethics and cites to Dr. Francis’ deposition testimony to show that “condone” is 

interpreted by the University to include agreeing with a discriminatory opinion. 

Q. . . . [T]he [nondiscrimination] provision states that counselors cannot condone 

any of these forms of discrimination. What does condone mean, within the 

context of this provision? 

A. To agree and/or promote. 

Q. Can you give me an example of improper condoning of discrimination? 

A. That I would believe that persons involved in an interracial marriage to be 

improper, immoral, and contrary to the human condition. 

Q. So if you believe that, that’s an improper condoning of discrimination under 

this policy? 

A. Yes 

(Francis dep. 55-56). Plaintiff argues that she did not even speak to the potential client, 

yet the University concluded she violated its policies against condoning discrimination 

and imposing values. 

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 Courts have traditionally given public colleges and graduate schools wide latitude 

"to create curricula that fit schools' understandings of their educational missions." 

Kissinger v. Board of Trustees of Ohio State University, 5 F.3d 177, 181 (6th Cir. 1993) 

(citing Doherty v. Southern College of Optometry, 862 F.2d 570, 576-66 (6th Cir. 1988)). 

"This judicial deference to educators in their curriculum decisions is no less applicable in 

a clinical setting because evaluation in a clinical course 'is no less an 'academic' 

judgment because it involves observation of . . . skills and techniques in actual 

conditions of practice, rather than assigning a grade to . . . written answers on an essay 

question.'" Doherty, 862 F.2d at 576-77 (quoting Board of Curators of Univ. of Missouri 

v. Horowitz, 435 U.S. 78, 95 (1978) (Powell, J., concurring)). A federal court should not 

override a "'genuinely academic decision' . . . unless it is such a substantial departure 

from accepted academic norms as to demonstrate that the person or committee 

responsible did not actually exercise professional judgment." Regents of the University 

of Michigan v. Ewing, 474 U.S. 214, 225 (1985). 

 Counseling, by its very nature, relies on a uniquely personal and intimate 

relationship between the counselor and client to assist in delivering the objectives 

sought by the client. Educating counselors to provide such services is clearly within the 

expertise of the universities that provide such programs. Plaintiff was taught the Code 

of Ethics in class, and cannot claim she was unaware of its requirements. Her papers 

demonstrate she struggled with the issue of referral due to value conflicts, particularly 

when the value conflicts were due to her religious beliefs. She knew the University’s 

curricular goal of teaching students to counsel without imposing their personal values on 

their clients by setting up boundaries so as not to be judgmental. 

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 Plaintiff points to two other counseling students disciplined under the 

nondiscrimination policy. One student targeted because of her religious beliefs was 

subjected to an informal review conference because “the work she submitted” in the 

University’s cross-cultural counseling class raised the “concern[] that this student would 

not be able to keep her religious beliefs out of her behavior with students, and that’s 

what boundaries means, that she would not be able to keep from imposing those on the 

client.” (Ametrano dep. 5-6). After accepting a remediation plan, the student voluntarily 

discontinued her studies, but she was not dismissed from the Program. 

 Plaintiff also refers to a third-party affidavit from former University student M.H., 

who plaintiff claims was punished for having a difference of opinion with Dr. Callaway 

regarding race. There was an informal review conference and a remediation plan 

involving Ms. H.: 

I suggested that your quick objections in class might reflect reliance on 

assimilation and that, when ideas presented do not fit in your current 

cognitive schema, you may reject them outright rather than explore 

whether you need to accommodate the new ideas by changing your 

cognitive schemas. Dr. Callaway suggested that you take a week to 

reflect upon ideas that initially seem incorrect before you assertively 

challenge them in class. To assist this process, Dr. Callaway suggested 

that you may benefit from using the strategies for disconfirming 

unconscious racism that are presented in the Ridley text used for the 

COUN 571 class. 

Plaintiff argues that defendants imposed a limit on Ms. H.’s speech relative to race, 

causing her to self-censor her speech. 

 Neither of the counseling students was subjected to “discipline” for protected 

speech. The informal review process is not discipline under the terms of the Handbook. 

It is undisputed that plaintiff would not have been dismissed from the Program had she 

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agreed to work with the faculty to learn how to respect the boundaries between her 

values and her clients’ values, and to counsel all clients regardless of sexual orientation: 

 Q: Is there anything that Ms. Ward could have said or done, during the formal 

review, that would have led you to not vote to dismiss her from the 

program? 

 A: Most certainly, yes. 

 Q: What is that? 

 A: That Ms. Ward was willing to work with us on a remediation plan, that 

would help her deal with the behavior, to learn how to deal with conflicting 

values and providing appropriate clinical services to people whose values 

she may not agree with. 

(Francis dep. 100). Furthermore, plaintiff’s statement that she would counsel 

homosexuals on non-relationship issues demonstrates her lack of understanding of the 

nature of counseling. Counseling is unpredictable, especially in a school setting where 

problems are not always apparent on their face. A counselor’s job is to facilitate 

answers that are right for the client. Choosing particular issues that a counselor will 

agree to discuss with a client is not practical in the real world. 

 The evidence in this case supports the University’s claim that the Policy is part of 

the curriculum. Students have notice of the Policy, both in the Handbook and as taught 

in most counseling classes. It is the University’s prerogative to define its own 

curriculum, and it has given sufficient rational reasons for including the ACA Code of 

Ethics in its curriculum. 

 During the process that followed the referral in this case, plaintiff’s position 

hardened and she expressed her unwillingness to bend. The decision to dismiss 

plaintiff was made after multiple attempts at testing her ability to build a barrier in values 

between the client and counselor. The dismissal was entirely due to plaintiff’s refusal to 

change her behavior, not her beliefs. 

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 The ACA Code of Ethics is the industry standard in the field of counseling. EMU 

did not write the nondiscrimination policy that it adopted into its counseling student 

handbook. Rather, the University is using the ACA Code of Ethics to govern its 

counseling students in exactly the same way they will be governed when they are 

practicing counselors. The court gives universities broad latitude when it comes to 

matters of pedagogy. In addition, the court should avoid entering into the role of 

regulating counseling industry standards. 

 Rather than lacking notice as she claims, plaintiff was taught counseling goals in 

class, they appeared in the Handbook, she wrote papers which demonstrated that she 

understood the issue of value differences. The classroom is where it is appropriate for 

students to debate and challenge issues they find difficult. Once in Practicum, students 

must learn, take direction, and demonstrate skills, which is impossible if they refuse to 

participate. The Policy in this case is part of the University’s curriculum; it is not a 

speech code and it does not violate the Due Process Clause of the Constitution. 

II. Free Speech

Plaintiff claims that defendants violated the Free Speech Clause of the First 

Amendment by requiring her to change her beliefs regarding homosexuality and by 

requiring her to express a particular viewpoint. “The First Amendment protects the right 

of individuals to hold a point of view different from the majority and to refuse to foster . . 

. an idea they find morally objectionable.” Wooley v. Maynard, 430 U.S. 705, 715 

(1977). The “government must abstain from regulating speech when the specific 

motivating ideology or the opinion or perspective of the speaker is the rationale for the 

restrictions.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 

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(1995). Plaintiff contends that defendants require their counseling students to affirm 

and validate homosexual relationships and behavior, and prohibit reparative therapy. 

Plaintiff=s religious beliefs come from the Bible, and she believes that homosexual 

conduct is immoral. As she explains it, “she cannot counsel a client seeking assistance 

with a homosexual relationship because EMU’s requirement that she affirm and validate 

the homosexual relationship and behavior would violate her beliefs and require her to 

express a view that contravenes her convictions.” Furthermore, when she exercised 

her First Amendment right not to speak a message with which she disagreed, 

defendants cross-examined her and tried to change her religious beliefs. When plaintiff 

did not relent, she was dismissed from the Program. 

Defendants move for summary judgment, pointing out that plaintiff received “A” 

grades despite expressing her opposition to homosexuality; plaintiff could not identify 

any instance when any defendant told her they wanted her to change her beliefs; and 

the dismissal letter referred to plaintiff’s behavior in refusing to adhere to the ACA Code 

of Ethics, and not her religious beliefs. 

 The Supreme Court considered a free speech challenge brought by high school 

students who were staff members of the school’s newspaper, which was written and 

edited by a journalism class, as part of the school’s curriculum. The students objected 

to the deletion of several articles, based on their content, by the school principal. The 

Court first recognized that “[a] school need not tolerate student speech that is 

inconsistent with its ‘basic educational mission,’ even though the government could not 

censor similar speech outside the school.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 

260, 266 (1988) (citations omitted). The Court held that “educators do not offend the 

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First Amendment by exercising editorial control over the style and content of student 

speech in school-sponsored expressive activities so long as their actions are 

reasonably related to legitimate pedagogical concerns.” Id. at 273. 

"[T]he Hazelwood framework is applicable in a university setting for speech that 

occurs in a classroom as part of a class curriculum." Axson-Flynn v. Johnson, 356 F.3d 

1277, 1289 (10th Cir. 2004) (citing inter alia as persuasive Settle v. Dickinson County 

Sch. Bd., 53 F.3d 152 (6th Cir. 1995)). In such context, a university's decision to 

compel speech will be upheld as long as the decision was "reasonably related to 

legitimate pedagogical concerns." Axson-Flynn, 356 F.3d at 1290 (quoting Fleming v. 

Jefferson County Sch. Dist. R-1, 298 F.3d 918, 926 (10th Cir, 2002) (quoting 

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)). "So long as the teacher 

limits speech or grades speech in the classroom in the name of learning and not as a 

pretext for punishing the student for her . . . religion . . . , the federal courts should not 

interfere." Axson-Flynn, 356 F.3d at 1293 (quoting Settle v. Dickson County School Bd., 

53 F.3d at 155-56). 

The Sixth Circuit held that a public school did not violate the First Amendment by 

refusing to allow a student to write a paper about Jesus Christ. Settle, 53 F.3d 152 (6th 

Cir. 1995). Concurring with the decision, Judge Batchelder wrote, “[t]his case is not 

about [the student’s] First Amendment right to express her views, opinions or beliefs, 

religious or otherwise, in the classroom. This case is about whether [her] teacher may 

determine what topic is appropriate to satisfy a research paper assignment in that class. 

. . . The bottom line is that when a teacher makes an assignment, even if she does it 

poorly, the student has no constitutional right to do something other than that 

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assignment and receive credit for it.” Id. 

The Ninth Circuit held that a public university can require that a student comply 

with the terms of an academic assignment, without violating the First Amendment. 

Brown v. Li, 308 F.3d 939 (9th Cir. 2002). The University refused to include a copy of a 

graduate student=s thesis in its library because it contained a “Disacknowledgment” 

section. The court held: 

. . . under the Supreme Court’s precedents, the curriculum of a public educational 

institution is one means by which the institution itself expresses its policy, a 

policy with which others do not have a constitutional right to interfere. The 

Supreme Court’s jurisdiction does not hold that an institution’s interest in 

mandating its curriculum and in limiting a student’s speech to that which is 

germane to a particular academic assignment diminishes as students age. 

Indeed, arguably the need for academic discipline and editorial rigor increases as 

a student’s learning progresses. 

Id. at 951. Brown supports the University’s position that plaintiff does not have a 

constitutional right to interfere with its curriculum by demanding that she be allowed to 

set her own standards for counseling clients under the faculty’s State licensure in the 

University’s clinic. 

The Tenth Circuit is consistent, applying the Hazelwood principles in a university 

setting for speech that occurs in a classroom as part of a class curriculum. “[W]e will 

uphold the [university’s] decision to restrict (or compel) that speech as long as [its] 

decision was ‘reasonably related to legitimate pedagogical concerns.’ We give 

‘substantial deference’ to ‘educators’ stated pedagogical concerns.’ . . . That schools 

must be empowered at times to restrict the speech of their students for pedagogical 

purposes is not a controversial proposition. . . . By the same token, schools also 

routinely require students to express a viewpoint that is not their own in order to teach 

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the students to think critically. . . .” Axson-Flynn, 356 F.3d at 1290. 

The judiciary’s review of academic decisions is limited. Bell v. Ohio State Univ., 

351 F.3d 240, 251 (6th Cir. 2003). “When judges are asked to review the substance of 

a genuinely academic decision . . . they should show great respect for the faculty’s 

professional judgment.” Ewing, 474 U.S. at 225-26. To the extent EMU’s decision to 

dismiss plaintiff was on the basis of her academic performance, the court is constrained 

in its review of that decision. 

The University had a rational basis for adopting the ACA Code of Ethics into its 

counseling program, not the least of which was the desire to offer an accredited 

program. Furthermore, the University had a rational basis for requiring its students to 

counsel clients without imposing their personal values. In the case of Ms. Ward, the 

University determined that she would never change her behavior and would consistently 

refuse to counsel clients on matters with which she was personally opposed due to her 

religious beliefs - including homosexual relationships. The University offered Ms. Ward 

the opportunity for a remediation plan, which she rejected. Her refusal to attempt 

learning to counsel all clients within their own value systems is a failure to complete an 

academic requirement of the program. 

Ms. Ward was enrolled in the school counseling program. In a high school 

setting, a counselor can expect to be presented with all sorts of issues, including 

homosexuality. Counseling is not an exact science; rather it is unpredictable and 

personal at its core. A client may seek counseling for depression, or issues with their 

parents, and end up discussing a homosexual relationship. A counselor who cannot 

keep their personal values out of the interaction has great potential to harm her client. 

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Referrals are taught to be a last resort because the nature of issues and topics 

confronting individual clients are often unforeseen. A counselor may hold himself out to 

specialize in a particular issue, like eating disorders, but that disorder may be due to 

underlying issues including, perhaps, coming to terms with their homosexuality. 

All of this supports defendant’s position that a counselor needs clinical 

educational experiences to draw upon in order to deal with situations in a non-harmful, 

ethically appropriate manner. Providing such skills to its graduates is the legitimate 

pedagogical concern of the University. EMU could not confer a counseling degree on a 

student who said she would categorically refer all clients who sought counseling on 

topics with which she had contrary moral convictions. 

Having demonstrated that its Policy is reasonably related to legitimate 

pedagogical concerns, the University did not violate plaintiff’s First Amendment free 

speech rights. 

III. Free Exercise Clause

The Free Exercise Clause provides that “Congress shall make no law respecting 

an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. CONST. 

amend. I. Courts consider whether the challenged government policy (1) is generally 

applicable, (2) was intended to prohibit any particular religious practice or belief, and (3) 

whether there exists a particularized system of exemptions. Kissinger, 5 F.3d 177. 

Plaintiff contends that EMU discriminated against her because of the religious 

beliefs she holds. According to plaintiff, when she expressed her views in class, 

defendants labeled her a “homophobe” and told her she ought to consider whether EMU 

is a “good fit” for her. When she expressed her views in supervision session, defendant 

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Callaway told her that her religious views “were incompatible with the profession.” 

When she expressed her views at the informal review conference, defendants told her 

that she needed to accept “remediation” to see “the error of her ways” and explained at 

the formal review meeting that the purpose of “remediation” was for Ms. Ward to 

“change[]” her “belief system”. When she expressed her religious views at the formal 

review, defendants reiterated that her “attitudes would not be condoned” in professional 

counseling, questioned whether she believed homosexuality was a choice, stated that 

her beliefs would jeopardize client safety and comfort, inquired whether she viewed 

herself as “superior” to other Christians, and engaged her in a “theological bout” 

regarding her religious beliefs. 

Plaintiff has distorted the facts in this case to support her position that defendants 

dismissed her due to her religious beliefs. While defendants may have been indelicate 

in their inquiry into Ms. Ward’s beliefs, they never demonstrated a purpose to change 

her religious beliefs. Defendants were at all times concerned with plaintiff’s refusal to 

counsel an entire class of people whose values she did not share. Defendants 

acknowledged that plaintiff’s beliefs motivated her behaviors, but always made the 

distinction between the two, and in no way attacked her beliefs. Even plaintiff is forced 

to agree that Drs. Callaway and Dugger never told her she needed to change her 

religious beliefs. (Ward dep. 223). Still, plaintiff argues that defendants’ policies are not 

neutral or generally applicable, and therefore they violate the Free Exercise Clause 

unless they can be justified by a compelling governmental interest and are narrowly 

tailored to advance that interest. Church of the Lukumi Babalu Aye, Inc. v. City of 

Hialeah, 508 U.S. 520, 531-32 (1993). 

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In Kissinger, the Sixth Circuit held that a university graduate student’s free 

exercise rights were not violated after the student refused to follow the university’s 

graduate school curriculum. The plaintiff was enrolled in the veterinary graduate 

program and was required to complete a course in which she would be forced to 

operate on healthy animals. Plaintiff objected based on religious grounds and 

requested an alternative way to complete the course. The parties settled plaintiff’s 

constitutional claims, and plaintiff sought attorney fees. Under §1983, a plaintiff is only 

entitled to attorney fees if she proves that she is “legally entitled to the redress” sought 

in the lawsuit. 5 F.3d at 179. The court had to decide the merits of plaintiff’s free 

exercise claim against the university. The Sixth Circuit affirmed the district court’s 

rejection of the plaintiff’s claim because the program’s curriculum “was generally 

applicable, was not aimed at particular religious practices, and did not contain a system 

of particularized exemptions.” Id. 

[The plaintiff] was not compelled to attend Ohio State for her veterinary 

training. She matriculated there knowing that operations on live animals 

were part of the curriculum established by the College. She cannot now 

come forward and demand that the college change its curriculum to suit 

her desires. Courts have traditionally given public educational institutions, 

especially colleges and graduate schools, wide latitude to create curricula 

that fit schools= understandings of their educational missions. We would 

defeat that longstanding restraint if we ruled for [the plaintiff] today. 

Id. at 180-81. 

As in Kissinger, the Program=s requirement that counseling students adhere to 

the ACA Code of Ethics is generally applicable because it applies equally to all students 

enrolled in the Program, and because it is a core component of the Practicum course. 

The Program’s requirements apply to everyone equally, regardless of religion, and are 

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“not aimed at particular religious practices.” There is no system of “particularized 

exemptions” by which students enrolled in the Program would be allowed to deviate 

from the ACA Code of Ethics in order to refer all clients whose behavior or sexual 

orientation they found objectionable. No students were allowed to refer clients based 

on their protected class, nor would they graduate without successfully completing 

Practicum. 

Though EMU has allowed referral of clients on a limited basis, it does not have a 

particularized system of exemptions that allows students to graduate without meeting 

the curriculum requirements. Plaintiff points out that certain students were given 

exemptions from counseling a particular client in circumstances not involving religion. 

For example, a student who had recently suffered the loss of a significant person in their 

life was not assigned clients who were Acoming in to deal with grief issues.@ By refusing 

to extend this individualized exemption to plaintiff in a case of Areligious hardship@, EMU 

is allegedly violating plaintiff’s free exercise rights. However, a limited-time referral to 

accommodate a counselor coming to terms with personal issues is not analogous to Ms. 

Ward=s situation. Ms. Ward wants to always refer all clients who seek counseling for 

sexual relationship issues she believes to be against the teachings of the Bible. This is 

not a limited accommodation; rather it involves the referral of all clients seeking 

counseling services based on the client=s protected status. 

Plaintiff also points out that a referral may be made if the parents of a 

homosexual child seek counseling and set the counseling goal as helping their child not 

engage in homosexual relationships or behavior because of their religion. Plaintiff 

questions why the counselor may refer a client who wants to abstain from homosexual 

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desires/behaviors, but does not permit referral to those like plaintiff who do not want to 

partake in gay-affirmative therapy. Dr. Francis= testimony is that reparative therapy is 

not the standard of care in the profession. However, if that is the goal the client 

ultimately sets, the counselor may try to help them (by referral) find someone who can 

help them. Reparative therapy is not the standard of care, is not part of EMU=s 

curriculum, and does not qualify as a particularized exemption under the Free Exercise 

Clause. 

The ACA=s Chief Professional Officer, Dr. Michael Kaplan, explained in his expert 

report that plaintiff=s request to refer clients based on their protected status (sexual 

orientation) Awas a clear and major violation of the ACA Code of Ethics as it also would 

have been if she had refused to counsel an assigned African American client on the 

basis that her values would not allow her to provide services to people of color.@ 

Additionally, Dr. Kaplan explained that the provision in the ACA Code of Ethics allowing 

referrals of clients seeking end-of-life counseling is Athe exception that proves the rule@

that values-based referrals based on a client=s protected status are not appropriate. 

That is because the Code of Ethics permits all counselors, regardless of religious faith, 

to refer clients seeking counseling for end-of-life issues. 

With regard to the Muslim student who was permitted to complete a required 

performance in front of a different group of students due to religious concerns, that 

student completed the academic curricular requirement. In contrast, plaintiff made it 

clear that she will not perform as required going forward because she will not, under any 

circumstances, counsel any homosexual client about relationship issues. Essentially, 

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she stated her refusal to make any effort to work with faculty to establish boundaries 

between her own values and the counseling relationship. 

Defendants concede that the assigned text in Counseling 580 course provides 

that referrals based on value conflicts are permissible and sometimes in the client=s best 

interest. Sherry Cormier & Paula S. Nurius, Interviewing and Change Strategies for 

Helpers: Fundamental Skills and Cognitive Behavioral Interventions 22 (2003). The text 

states that Avalue judgments by both the helper and the client may be inevitable during@

the goal setting process, and that A[i]f the client selects goals that severely conflict with 

the helper=s values or exceed the helper=s level of competence, the helper may decide 

to refer the client . . . .@ (Id. at 297). 

Plaintiff wrote a paper based on the Cormier and Nurius text, wherein, with 

regard to referrals, she stated: 

To prevent a breakdown in the counselor client relationship, Cormer and 

Nurius (2003) suggest that helpers expand their awareness of clients=

lifestyle choices, or belief systems that are different from their own. While 

this might work with less controversial issues, there are some beliefs that 

are not only values but convictions. For me, compromising my strong 

convictions for the betterment of the client would stifle my own spiritual 

relationship with God and prove to be a disingenuous attempt at hiding my 

true feelings. In situations were [sic] the value differences between a 

counselor and client are not amenable Astandard practice= requires that 

the counselor refer his/her client to someone capable of meeting their 

needs.@ 

Plaintiff received a perfect score on this paper. Plaintiff argues that because defendants 

teach that value-based referrals are permissible, it is plaintiff=s religious beliefs, and not 

her behavior, that resulted in her dismissal from the Program. 

There are excerpts from the required texts supporting both sides regarding the 

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referrals. The Corey and Corey text teaches that a counselor needs to respect the 

values of their clients, even if they do not share them or agree with them. Marianne 

Schneider Corey & Gerald Corey, Becoming a Helper 222 (2007). The text 

acknowledges that Athe therapeutic endeavor is a value-laden process and that all 

counselors, to some degree, communicate their values to clients.@ Id. However, the 

text cautions counseling students that in exposing the client to different values they 

need to be aware of how they do it so as not to influence their clients to adopt their own 

values. Id. at 222-23. The text acknowledges that all counselors have their own values, 

which will often differ from those of their clients. The text supports EMU=s curricular 

goal of teaching student counselors to avoid imposing their values on the client, who will 

often seeks approval of the counselor and pick up on non-verbal clues from the 

counselor. Id. 

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 that has been incorporated “for purely pedagogical purposes”. 

Kissinger, 5 F.3d at 179. Therefore, plaintiff violated EMU’s curriculum requirement that 

was not intended to prohibit any particular religious practice or belief. It is true that 

EMU’s curriculum does require plaintiff to make an effort to counsel homosexual clients, 

but, contrary to plaintiff’s assertion, this requirement is not a requirement to endorse or 

advocate homosexuality, hence infringing her free exercise rights. 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 

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counselors-to-be under the ACA standard. 

Clearly, the nondiscrimination policy is generally applicable and does not apply 

differently to different categories of students. There is no evidence that the purpose of 

the policy is to discriminate against any particular religious practice or belief. To the 

contrary, all evidence supports a conclusion that the purpose of the policy is to foster a 

positive counseling relationship, free of value judgments by the counselor. Finally, there 

is no Aparticularized system of exemptions@ in place. The few exceptions, including endof-life counseling, and a temporary exception due to grief issues, have a rational basis 

and do not obliterate the rule. Summary judgment is granted to defendants on plaintiff’s 

Fee Exercise Clause claim. 

IV. First Amendment Retaliation

To establish a First Amendment retaliation claim, plaintiff must demonstrate that 

(i) she engaged in protected conduct; (ii) an adverse action was taken against her that 

would deter a person of ordinary firmness from continuing to engage in that conduct; 

and (iii) the adverse action was motivated at least in part by her protected conduct. 

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). 

Defendants seek summary judgment for the reason that plaintiff has failed to 

demonstrate the first element of a retaliation claim, that being that she engaged in 

protected conduct. Once again, plaintiff argues that the protected activity in this case 

was making a referral, because providing “gay-affirmative” counseling would have 

violated her religious beliefs. As the court has found, Ms. Ward=s refusal to counsel the 

client in question constitutes a refusal to complete a curriculum requirement, and 

defendants’ reasons for dismissing plaintiff are academically legitimate, rather than a 

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mere pretext to retaliate against her for expressing her religious beliefs. Plaintiff was 

never asked to change her beliefs, only her behavior in order to complete reasonable 

academic requirements. 

Plaintiff has failed to establish a claim for First Amendment retaliation. 

V. Rights Under the Establishment Clause

 Pursuant to the First Amendment, “Congress shall make no law respecting an 

establishment of religion . . . .” U.S. Const. amend. I. The Supreme Court has given the 

following broad interpretation of the Establishment Clause: 

The “establishment of religion” clause of the First Amendment means 

at least this: Neither a state nor the Federal Government can set up a 

church. Neither can pass laws which aid one religion, aid all 

religions, or prefer one religion over another. Neither can . . . force 

him [a person] to profess a belief or disbelief in any religion. No 

person can be punished for entertaining or professing religious 

beliefs or disbeliefs . . . . [T]he [Establishment] [C]lause . . . was 

intended to erect a “wall of separation between church and State.” 

 

Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15-16 (1947) (citation omitted). However, 

subsequent cases have tempered Everson by acknowledging that church and State 

cannot be separate in all respects, as religion is a deeply embedded part of American 

life and culture. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 614 (1971); Sch. Dist. of 

Abington Twp. v. Schempp, 374 U.S. 203, 220 (1963) (citing Zorach v. Clauson, 343 

U.S. 306, 312 (1952)). Instead, “the touchstone for the Court’s analysis is the principle 

that the ‘First Amendment mandates governmental neutrality between religion and 

religion, and between religion and nonreligion.’” McCreary County, Ky. v. ACLU, 545 

U.S. 844, 860 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). 

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Establishment Clause violations are determined according to the three-pronged 

Lemon test. See 403 U.S. at 612-13. In order to abide by the Establishment Clause, 

(1) the statute must have a secular legislative purpose, (2) its principal or primary effect 

must be one that neither advances nor inhibits religion, and (3) it must not foster “an 

excessive government entanglement with religion,” see id. (citations omitted). This 

standard has been adopted in the Sixth Circuit. See, e.g., Kunselman v. W. Reserve 

Local Sch. Dist., 70 F.3d 931, 932 (6th Cir. 1995); ACLU v. City of Birmingham, 791 

F.2d 1561, 1563 (6th Cir. 1986); Curry v. Sch. Dist. of Saginaw, 452 F. Supp. 2d 723, 

739 (E.D. Mich. 2006). 

Plaintiff alleges that defendants violated the Establishment Clause by failing to 

maintain neutrality toward religion, by punishing plaintiff for professing her beliefs, and 

by failing to provide “accommodation . . . of all religions, [while] forbid[ding] hostility 

toward any.” See Lynch v. Donnelly, 465 U.S. 668, 673 (1974). Plaintiff supports this 

claim by asserting that the University officials, including Drs. Francis, Callaway, and 

Dugger, attacked her religious beliefs, instructed her to hide her religious beliefs from 

her clients, and dismissed her from the Program when she refused to change her belief 

system. 

Conversely, defendants assert that the Program comports with the Lemon test, 

does not favor one religion over another, and instead maintains a policy prohibiting 

discrimination; furthermore, they assert that plaintiff, not the defendants, seeks to inject 

religious concerns into the Program. 

A. Secular Legislative Purpose

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The purpose prong of the Lemon test inquires into the government’s actual 

motivation underlying the regulation in question—that is, whether it was intended to 

advance or inhibit religion. See Edwards v. Aguillard, 482 U.S. 578, 585 (1987). The 

laws or regulations must conform to “that central Establishment Clause value of official 

religious neutrality.” See McCreary, 545 U.S. at 860 (citation omitted). However, while 

a “totally secular purpose is not required,” see City of Birmingham, 791 F.2d at 1565, 

there must be more than “the mere existence of some secular purpose,” see Lynch, 465 

U.S. at 690-91 (O’Connor, J., concurring) (emphasis added). For example, the stated 

legislative purpose of “remind[ing] Kentuckians of the Biblical foundations of the laws of 

the Commonwealth” was insufficient to justify the erection of a six-foot monument 

bearing an inscription of the Ten Commandments on Capitol grounds. See Adland v. 

Russ, 307 F.3d 471, 480-81 (6th Cir. 2002). 

Defendants’ curriculum has a secular purpose, as it is based upon national 

accreditation standards, professional codes of ethics, and State licensing requirements. 

Indeed, such proscribed behaviors as “[u]nethical, threatening, or unprofessional 

conduct” or “[i]nability to tolerate different points of view, constructive feedback, or 

supervision” are certainly targeted at ensuring that students conduct themselves in a 

professional manner rather than at inhibiting the practice of religion. Moreover, the 

Program’s primary goals are threefold: (1) to promote student development, (2) to 

protect clients who utilize the Program’s services, and (3) to serve as gatekeepers for 

the counseling profession, thus ensuring that its graduates have the skills and 

professional disposition to become licensed counselors. (Dugger decl. ¶¶ 9-10). In light 

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of the fact that the court typically gives great deference to the government’s stated and 

sincere secular purposes, see Aguillard, 482 U.S. at 586-87 (1987), defendants’ efforts 

to maintain such curricular policies and goals undoubtedly indicate a secular purpose, 

especially when compared with case law, see Lynch, 465 U.S. at 680-81 (finding a 

district court’s decision that a creche display has no secular purpose clearly erroneous); 

City of Birmingham, 791 F.2d at 1565 (finding that a holiday display including a creche 

was not devoid of all secular purpose). 

B. The Principle Effect of Advancing or Inhibiting Religion

Justice O’Connor clarified the “effect prong” of the Lemon test as being an inquiry 

into “whether, irrespective of government’s actual purpose, the practice under review in 

fact conveys a message of endorsement or approval.” See Lynch, 465 U.S. at 690 

(O’Connor, J., concurring). O’Connor reasoned that “[e]ndorsement sends a message 

to nonadherents that they are outsiders, not full members of the political community, 

and an accompanying message to adherents that they are insiders, favored members of 

the political community. Disapproval sends the opposite message.” Id. at 688. The 

court must assess, given the particular context of the situation, see id. at 690, whether 

the government regulation is likely to be perceived as an endorsement or disapproval of 

religion by adherents or nonadherents to a particular religion, see County of Allegheny 

v. ACLU, 492 U.S. 573, 597 (1989) (quoting Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 

373, 390 (1985)) (emphasis added), and by a reasonable observer, see id. at 620. The 

endorsement test has been adopted in the Sixth Circuit. See Kunselman 70 F.3d at 

932; City of Birmingham, 791 F.2d at 1563; Curry, 452 F. Supp. 2d at 740. 

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The court finds that no reasonable person could conclude that the Program 

curriculum, as written or as enforced, conveys a message endorsing or disapproving of 

religion. Counseling program requirements that advance professionalism, tolerance, 

and non-discrimination, whether or not the University officials adopted an arrogant or 

hostile demeanor during disciplinary reviews, cannot reasonably convey a message of 

disapproval of religion to the public. As noted supra, counseling is a helping profession 

that seeks to assist in resolving delicate and personal issues; thus, a counselor’s 

attitude of nonjudgment and nondiscrimination is of foremost importance. A reasonable 

member of the community would understand that defendants, in preparing students for 

the counseling profession, had a right and a duty to enforce compliance with such 

ethical rules. The fact that plaintiff would have to complete a remediation program to 

work through her values conflict in order to comply with Program requirements has no 

impact on the court’s conclusions. The endorsement test is not violated by a 

government regulation that actually advances or inhibits religion, regardless of whether 

this is a primary or incidental effect; rather, the court must determine whether the 

regulation simply communicates a message of governmental endorsement or 

disapproval of religion. See Lynch, 465 U.S. at 691-92 (O’Connor, concurring). 

Plaintiff argues that defendants’ actions conveyed a hostile attitude toward 

religion and that the Establishment Clause prohibits such hostility. While she is correct 

in her reading of the law that hostility toward religion is prohibited, the cases she cites in 

support of this statement are inapposite to the instant action. See Rosenberger, 515 

U.S. at 845-6; McDaniel v. Paty, 435 U.S. 618, 636 (1978) (Brennan, J., concurring). 

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First, these cases dealt with hostile laws and regulations violating the Establishment 

Clause, see Rosenberger, 515 U.S. at 822; McDaniel, 435 U.S. at 620; here, however, 

plaintiff claims that defendants’ hostile attitudes during enforcement of Program policies 

are unconstitutional. Second, in both Rosenberger and McDaniel, the regulations at 

issue facially discriminated on the basis of religion, see Rosenberger, 515 U.S. at 822; 

McDaniel, 435 U.S. at 620, while the regulation in the instant case is facially neutral 

regarding religion. 

C. Excessive Entanglement With Religion

In determining whether there is an excessive entanglement with religion, the 

court must analyze “the character and purpose of the institutions that are benefited, the 

nature of the aid that the State provides, and the resulting relationship between the 

government and the religious authority.” See Lemon, 403 U.S. at 615. First, the court 

looks to whether there is any administrative relationship or interaction between church 

and State. See Lynch, 465 U.S. at 684; City of Birmingham, 791 F.2d at 1565-66. 

Second, the court must assess the degree of political divisiveness legislation or 

regulations may cause, as “political division along religious lines was one of the 

principal evils against which the First Amendment was intended to protect.” See

Lemon, 403 U.S. at 622-23. Political divisiveness alone, however, is insufficient to 

invalidate otherwise permissible government conduct. Lynch, 465 U.S. at 684; City of 

Birmingham, 751 F.2d at 1565. Moreover, the lawsuit in question cannot be exploited 

to create the appearance of political dissention and, consequently, entanglement. 

Lynch, 465 U.S. at 685-86. 

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Given that the curriculum requirements and codes of professional behavior are 

undoubtedly secular in nature, defendants are unlikely to be compelled to have any 

administrative relationship or interactions with representatives of religious organizations. 

Indeed, the University’s curriculum is far more secular and neutral toward religion than a 

holiday display that includes a creche. See id. at 684 (holding there to be no religions 

entanglement since no evidence existed that there had been contact between the 

government and church authorities regarding the content or design of the exhibit). A 

finding of excessive entanglement is more appropriate in situations, for example, where 

the government provides salary supplements to teachers of secular subjects in schools 

with religious affiliations. See Lemon, 403 U.S. at 617-19 (reasoning that the 

government’s duty to ensure that the teachers receiving salary supplements refrained 

from injecting religion into their lessons would create an unacceptable degree of 

administrative interaction with the church). 

Likewise, there is no evidence that the curriculum or enforcement of the 

curriculum has caused any political divisiveness. Defendants have never experienced a 

similar dispute regarding their curriculum; indeed, Dr. Ametrano stated in her twentynine years of teaching, no student has ever refused to counsel a client. (Ametrano dep. 

45:2-6). In fact, Dugger has stated that “the Program has educated and graduated 

many students with strong religious (including Christian) backgrounds and beliefs.” 

(Dugger decl. ¶ 22). In another example, a former counseling student who expressed 

racially discriminatory comments during class accepted a remediation plan in order to 

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work through these conflicts. (H. Aff. ¶¶ 36-37). Thus, the curriculum requirements at 

issue here do not require excessive entanglement with religion for enforcement. 

D. Religion of Secularism

Where a plaintiff challenges religiously neutral laws and regulations on 

Establishment Clause grounds, the claim is better characterized as an allegation that 

the defendants have established a “religion of secularism.” See Schempp, 374 U.S. at 

225 (holding that the State may not establish a “religion of secularism”); Torcaso v. 

Watkins, 367 U.S. 488, 495 n.11 (1961) (assuming without deciding that non-theistic 

beliefs such as secular humanism are “religions” for purposes of the First Amendment). 

Although plaintiff did not specifically allege that defendants have established a religion 

of secularism, their argument may be read to imply this claim, and so it will be 

addressed by the court. 

A regulation may be found to establish a “‘religion of secularism’ in the sense . . . 

[that it] affirmatively oppos[es] or show[s] hostility to religion, thus ‘preferring those who 

believe in no religion over those who do believe.’” Schempp, 374 U.S. at 225 (quoting 

Zorach, 343 U.S. at 314). The Ninth Circuit has defined “secular humanism” in such a 

way that a religion of secularism is not established unless the government (1) actively 

demonstrates hostility toward religion, consistent with Schempp, see 374 U.S. at 225, or 

(2) lends support to particular secular humanist organizations, see Grove v. Mead Sch. 

Dist. No. 354, 753 F.2d 1528, 1537 (9th Cir. 1985) (citing Malnak v. Yogi, 592 F.2d 197, 

296, 212 (3d Cir. 1979) (Adams, J., concurring)). Moreover, the majority in Schempp

rejected the notion that governmental efforts to maintain neutrality toward religion 

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establish a religion of secularism and thereby violate the Establishment Clause. See

374 U.S. at 225-26. 

Although plaintiff’s complaint that defendants demonstrated hostility, arrogance, 

and offensiveness during the formal and informal reviews is well taken, the court finds 

that neither this behavior nor the curriculum requirements satisfy the level of hostility 

required to establish a religion of secularism under Schempp. Defendants’ disrespectful 

comments were directed at plaintiff, herself, rather than at the practice of religion; there 

was no affirmative or willful denigration of orthodox Christianity, but rather tactless 

questioning assessing whether plaintiff could comply with Program policies. Therefore, 

defendants’ treatment of plaintiff is no doubt insufficient to constitute a religion of 

secularism. The Program curriculum, itself, attempts to foster an atmosphere of 

neutrality through policies that prohibit discrimination “based on age, culture, disability, 

ethnicity, race, religion/spirituality, gender, gender identity, [and] sexual orientation . . .” 

(ACA Code of Ethics C.5 (emphasis added)). Clearly, the Program was designed to 

encourage respect for, not hostility toward, various points of view. Additionally, there is 

no allegation or evidence that defendants support specific organizations dedicated to 

the cause of advancing secularism. 

 It is relevant to note that no case has ever found the government to have violated 

the Establishment Clause by endorsing a religion of secularism. 103 A.L.R. Fed. 538, 

*2 (2008). For example, when individuals have protested teaching evolution, these 

claims, like plaintiff’s, have failed based on the curriculum’s neutrality toward religion. 

See Wright v. Houston Indep. Sch. Dist., 366 F. Supp. 1208, 1210 (S.D. Tex. 1972); see

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also Cornwell v. State Bd. of Educ., 314 F. Supp. 340, 344 (D. Md. 1969) (sex 

education); Smith v. Bd. of Sch. Comm’rs., 827 F.2d 684, 690 (11th Cir. 1987) (history 

without sufficient reference to religion). 

 Plaintiff fails to demonstrate sufficient evidence to meet her burden of proof at 

trial for the Establishment Clause claim. Whatever hostility or inhibition of religion the 

Program curriculum (and University officials) created is far too attenuated to be 

considered Establishment Clause violations. See Estate of Thornton v. Caldor, 472 

U.S. 703, 710 (1985) (holding that in terms of finding Establishment Clause violations, 

courts are unconcerned with Aincidental or remote effects of advancing [or inhibiting] 

religion”). 

VI. Equal Protection

 The Equal Protection Clause of the Fourteenth Amendment commands that no 

State shall Adeny to any person within its jurisdiction the equal protection of the laws,@

meaning that all persons similarly situated should be treated alike. City of Cleburne v. 

Cleburne Living Ctr., 473 U.S. 432, 439 (1985). In general, the initial discretion to 

determine what is Adifferent@ or Asimilar@ resides in the legislative body. Plyler v. Doe, 

457 U.S. 202, 216 (1982). However, the general rule gives way when a statute or 

government regulation classifies people by race, alienage, or national origin. In 

addition, similar oversight by the courts is due when the state impinges on personal 

rights protected by the Constitution. City of Cleburne, 473 U.S. at 440. The Supreme 

Court has found that the following rights are fundamental: the right to vote, the right to 

interstate travel, the rights guaranteed by the First Amendment, and certain rights which 

are uniquely private in nature. Sturgell v. Creasy, 640 F.2d 843, 852 (6th Cir. 1981). 

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When such a fundamental right is substantially infringed, federal courts subject the law 

to strict scrutiny. Id. at 853. Then, the state has the burden to prove its classification is 

precisely tailored to serve a compelling governmental interest. Plyler, 457 U.S. at 216. 

Plaintiff’s argument for strict scrutiny in her equal protection claim hinges largely 

on her underlying Free Exercise Clause claim. Free exercise of religion is a 

fundamental right under the First Amendment, and whether plaintiff succeeds in this 

respect determines the level of scrutiny under the Equal Protection Clause. As 

analyzed in Part III, plaintiff does not succeed on her free exercise claim, because 

EMU=s curriculum regulations are religiously neutral and do not contain a particularized 

system of exemptions. None of the referral cases that the plaintiff has mentioned 

involve the kind of systematic class exclusion plaintiff invoked based on the client=s 

protected status. Because EMU=s policy does not violate plaintiff=s free exercise rights, 

the court applies a rational basis test for plaintiff=s equal protection claim. 

If a law or government regulation simply aims to serve a social or economic 

purpose, the Equal Protection Clause allows the state wide latitude. City of Cleburne, 

473 U.S. at 440. If the plaintiff claims that she has been singled out for discriminatory 

treatment as a Aclass of one@, she has the burden to prove that the state did so without 

rational basis. She may satisfy her burden of proof either by negating Aevery 

conceivable basis@ that might support the government action or by showing that the 

government was motivated by animus or ill will. TriHealth Inc. v. Bd. of Comm=r, 430 

F.3d 783, 788 (6th Cir. 2005). Other circuit courts have phrased the rational basis test 

in slightly different ways, but they all hold that the state should be given wide discretion, 

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unless the law is obviously motivated by malicious intent to discriminate. See, e.g., 

LeClair v. Saunders, 627 F.2d 606, 609 (2nd Cir. 1980). 

Under the rational basis test, distinctions made by the law must be relevant to the 

legislative purpose, and must be material. In City of Cleburne, the Supreme Court held 

that a zoning ban on mental health group homes was unconstitutional because the 

mentally disabled did not pose any special safety threat to the community as compared 

with patients in other nursing homes. The distinction was unconstitutional because it 

lacked any reasonable relationship to the legislative purpose. City of Cleburne, 473 

U.S. at 448. The materiality of the distinction is Aan integral element@ of the rational 

basis inquiry: disparate treatment of persons who are dissimilar only in immaterial 

respects is not rational; conversely, disparate treatment of persons is reasonably 

justified if they are dissimilar in some material respect. TriHealth Inc., 430 F.3d at 788. 

 EMU=s regulation is reasonably related to the legitimate pedagogical goal of 

maintaining a rigorous counseling program, thus it would pass the rational basis test. In 

order to maintain accreditation through CACREP, EMU needs to adhere to the ACA and 

ASCA Ethics Codes. Plaintiff does not dispute EMU’s claim that CACREP accreditation 

is Aintegral@ to maintaining the counseling program=s caliber. As an educational 

institution, setting and maintaining educational standards is a legitimate goal; and 

adherence to the Ethics Codes is a reasonable means to further this goal. Since the 

Ethics Codes require the student to build a boundary between their personal values and 

the conducts of their clients, EMU was acting in accord with its pedagogical goal to 

discipline students who failed to do so. Defendants did offer plaintiff the option of a 

remediation program to change her professional conduct, which, had plaintiff chosen to 

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accept it, would have led to plaintiff obtaining her degree. Defendants correctly point 

out that plaintiff failed to identify a materially similar case: neither the student who was 

permitted a temporary referral due to personal trauma nor the Muslim student who 

completed her academic requirement under accommodation was Asimilarly situated@

with plaintiff in relation to the school=s pedagogical goals, since neither of them failed to 

fulfill academic requirements. 

Though there were some unfriendly and arrogant remarks during the formal 

hearing after plaintiff=s refusal to participate in remediation, there was no evidence that 

the defendants maliciously singled out plaintiff from among other similarly situated 

individuals for discriminatory treatment as a Aclass of one@. Plaintiff has been a student 

with excellent academic credentials, and her work earned repeated approval from the 

faculty members – even when she expressed potential difficulties in following the ACA 

Code of Ethics due to religious reasons in her papers - until she explicitly refused to 

comply with the academic requirements of the Practicum. Both sides’ positions 

eventually hardened due to the confrontational atmosphere, culminating in the 

“theological bout” during the formal hearing. Nevertheless, the court does not perceive 

any maliciousness in defendants’ behavior amounting to a constitutional violation. 

Plaintiff’s Equal Protection Clause claim, analyzed under the rational basis standard is 

without merit. 

This court finds that even if plaintiff succeeded in her free exercise claim, 

resulting in strict scrutiny review of her equal protection claim, defendants have 

demonstrated a compelling interest and narrowly tailored means to achieve the end. 

The Supreme Court has recognized the Afundamental role@ of public education in 

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Amaintaining the fabric of our society@. Plyler, 457 U.S. at 221. Therefore, public 

educational institutions have been given considerable deference by the judiciary in 

determining their own academic standards. Some courts have held that a compelling 

interest in public education includes designing and teaching a curriculum as the State 

sees fit. See, e.g., Fields v. Palmdale Sch. Dist., 427 F.3d 1197 (9th Cir. 2005), Parents 

Involved in Cmty. Sch. v. Seattle Sch. Dist., 285 F.3d 1236 (9th Cir. 2002). EMU has a 

compelling interest to design and maintain a counseling program meeting the CACREP 

accreditation standard, and its measure to enforce this goal is narrowly-tailored: it is not 

so under-inclusive that it only targets plaintiff=s religion, nor is it so over-inclusive that it 

substantially regulates aspects of students’ personal lives outside of their professional 

conduct. Therefore, defendants would still obtain summary judgment on the equal 

protection claim even if plaintiff had succeeded on the free exercise claim. 

CONCLUSION

For the reasons stated in this Opinion and Order, summary judgment is granted 

in favor of defendants and against plaintiff. 

Dated: July 26, 2010 

 S/George Caram Steeh 

 GEORGE CARAM STEEH 

 UNITED STATES DISTRICT JUDGE 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

July 26, 2010, by electronic and/or ordinary mail. 

S/Josephine Chaffee

Deputy Clerk 

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