The recent case of Ward v. Polite illustrates the difficulty journalists and bloggers have in reporting on the law. Here are a few headlines you might find on a web search:
The first headline is pretty much wrong. The second and third are misleading and the fourth, while correct as far as it goes, isn’t very informative.
Here’s the nucleus of the case: a graduate counseling student was doing a practicum for Eastern Michigan University. Based on her Christian convictions on homosexuality, she requested an assignment to counsel a homosexual be referred to another counselor lest she be put in a position in which she would have to approve of the client’s homosexuality. The university responded by expelling her from the program.
And here’s why Johnny can’t read legal opinions: they aren’t essays on rights and they aren’t (with some exceptions) culture warmongering. A proper understanding of a legal opinion must account for the procedural setting and be fact-sensitive.
Procedure was especially important here. This case was primarily an appeal of the lower court’s summary judgment against Julea Ward. Don’t let your eyes glaze over yet because that can be fairly easily translated: the lower court said that, given the acknowledged facts of the case and the law, a jury would have to rule in favor of the university so there was no point in allowing a jury trial. This procedural posture tells us two important things: 1) this appellate court’s decision is ultimately going to be about whether Ms. Ward can go back to the lower court to get a jury trial, and 2) this appellate court will now bend over backwards to come up with possible facts which could support Ms. Ward and could cause a jury to decide in her favor.
And now we see the interdependency of procedure and facts. This court must now review what the facts could be. Here, the facts could include that the university didn’t apply its alleged rule against client referrals on an evenhanded basis among religious and nonreligious referral requests. A fact could include that the university allowed referrals for other reasons, but specifically singled out Ms. Ward’s religious reason as one worthy of expulsion, thereby infringing on both her freedom of speech and religious rights without sufficient justification. So the facts were hypothetical, but still, the court conveyed a tone of disapproval toward the university: “What exactly did Ward do wrong in making the referral request?… Here too, what did Ward do wrong?… Tolerance is a two-way street.”
But there was also some language that universities could use as a guideline for future expulsion of students in similar circumstances:
On its face, the ACA code of ethics [the alleged justification for expelling Ms. Ward] sets forth neutral and generally applicable policies, and the university has ample authority to adopt these policies, including the anti-discrimination provisions, for the school’s graduate counseling program. What poses a problem is not the adoption of an anti-discrimination policy; it is the implementation of the policy, permitting secular exemptions but not religious ones and failing to apply the policy in an even-handed, much less a faith-neutral, manner to Ward.
So what should Johnny understand about this case? Narrowly, Ms. Ward simply has the right to have a jury decide the matter. More broadly, the university might conclude that it’s on the wrong side of the law and reinstate Ms. Ward without going to trial. Then universities might plan to develop no-exception discrimination policies, apply them evenhandedly, and expel a student with religious scruples in a legally permissible way.