Eastern Michigan University is asking a Cincinnati-based federal appeals court to take the rare step of convening all 16 active-duty judges to rehear the case of a college student who claims EMU punished her for expressing religious-based opposition to homsexuality.
In a motion filed Feb. 10 with the 6th U.S. Circuit Court of Appeals, Eastern Michigan seeks en banc rehearing of the court’s Jan. 27 ruling in Ward v. Polite. In that ruling, a three-judge panel allowed former student Julea Ward to proceed to trial on her claim that EMU wrongfully removed her from a counseling-studies program after she asked to be relieved of an assignment to counsel a gay client.
The university’s move is somewhat surprising, because — other than refusing to dismiss Ward’s claims entirely — the panel’s ruling was highly favorable to EMU and damaging to Ward. Those favorable rulings would be placed at risk if the full circuit agrees to take the case.
In its ruling, the panel decided that Ward’s free speech claims should be governed by the minimal First Amendment protections that the U.S. Supreme Court recognized for “curricular” speech in Hazelwood School District v. Kuhlmeier. That ruling has been sharply questioned, because Hazelwood involved speech in a class-produced high school newspaper, and its reasoning — that schools need censorship authority to keep the public from mistaking students’ articles for the official opinion of the school — does not seem applicable to a graduate student’s complaints made in private conversation with a professor.
In the Feb. 10 motion, EMU attorneys argue that the panel should have treated Ward’s speech as the speech of a teacher rather than that of a student, since she was enrolled in a counseling practicum program. As a teacher, Ward had no First Amendment right whatsoever to dispute the college’s curriculum decisions, the university argues.
The college also argues that the panel misunderstood professional standards as to whether it is an accepted practice for a counselor who lacks objectivity to assign a patient to a different counselor — which is the central issue that was sent back to the district court for trial. The university’s interpretation of those professional standards should have been deferentially accepted by the court, EMU argues.
Ward’s attorneys have until Feb. 24 to decide whether to oppose the rehearing. Rehearing is an extraordinary step that is granted only in rare instances where the court believes that a ruling conflicts with binding legal precedent or is otherwise grossly erroneous.