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Supreme Court of the United States

How to Repeal the First Amendment . . .

October 17, 2017

In five easy steps.

Step 1:  Launch a debate within key private professional organizations (such as the National Association of Social Workers or the American Counseling Association) about the need for "social justice" within the profession.  Argue stridently that social workers and/or counselors should be leading advocates for "equality" or "diversity."

Step 2:  Incorporate this view within extraordinarily broad rules of ethics.  For example, the American Counseling Association rules of ethics say that a counselor cannot "condone" (whatever that means) discrimination on the basis of:

[A]ge, culture, disability, ethnicity, race, religion/ spirituality, gender, gender identity, sexual orientation, marital status/ partnership, language preference,socioeconomic status, or any basis pro-scribed by law.

The NASW code of ethics is even more broad:

Social workers should not practice, condone, facilitate, or collaborate with any form of discrimination on the basis of race, ethnicity, national origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status, or mental or physical disability.

Rules of this breadth can mean literally anything.  They can even be interpreted as an ethical requirement to "speak out" against (subjectively defined) injustice or discrimination and have been interpreted to reach even discriminatory thoughts that may cross a person's mind when viewing a client file.

Step 3: Convince public entities (like colleges or state licensing boards) that they must teach and apply these privately-generated ethical rules to students and members of the profession.  Apply the rules of ethics to expel or punish students who deviate from the ideological norms of the profession.

Step 4:  When challenged, argue that conventional First Amendment analysis doesn't apply because you're merely "teaching professional standards" or applying the "rules of ethics."  Appeal to a Court's often innate desire not to interfere with university curriculum or professional ethics.  Do everything you can to avoid talking about the text of the actual rules themselves.

Step 5:  Celebrate your victory.

Celebrate for now, anyway.  It is only a matter of time before federal courts begin to see through the ethical/curricular smokescreen and examine the ethical rules themselves.  Can a state entity -- such as a graduate school or a licensing board -- actually prohibit a person from "condoning" discrimination?  Can the state even define what that means?  Is a state licensing board or state faculty truly subordinate to the ideological whims of a private professional association?

In the coming months and years, this issue will become even more sharply defined and then -- eventually -- settled by the courts.  As private professional associations, groups like the ACA and NASW derive their cultural/legal power not from the force of law but from their longstanding reputation as dispassionate professional regulators.  But how long will that reputation last as they increasingly abandon themselves to explicit ideological advocacy?  Will courts continue to defer to them and the public professional schools they functionally control?

We shall see.

Alliance Defending Freedom

Alliance Defending Freedom

Non-profit organization

Alliance Defending Freedom advocates for your right to freely live out your faith

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