The "Conscience Clause" in Professional Training

Updated April 2015

An Emerging Area of State Legislation of Concern to Psychology

The American Psychological Association is concerned about state legislation that applies the “conscience clause” to professional training programs in psychology and other mental health professions. Such legislation was enacted in Arizona. Conscience clause legislation was introduced but not passed in the Michigan legislature. In Tennessee, conscience clause legislation was introduced and eventually passed in a modified form that restates existing law. Reintroduction of conscience clause legislation early 2015 was not enacted. 

In this briefing paper, APA provides information about this legislation and raises concerns about the role of state legislatures in defining the parameters of competence for training in the mental health professions, most notably for psychology doctoral and internship programs in clinical, counseling and school psychology.

Arizona Statute

In April 2011, Arizona Governor Jan Brewer signed an education bill (H.B. 2565) into law that includes the following provision in the “Rights of students at universities and community colleges” section:

“A university or community college shall not discipline or discriminate against a student in a counseling, social work or psychology program because the student refuses to counsel a client about goals that conflict with the student's sincerely held religious belief if the student consults with the supervising instructor or professor to determine the proper course of action to avoid harm to the client.” 

Michigan Legislation

In June 2011, a bill was introduced in Michigan (H.B. 5040/S.B. 518) that stipulates the following:

“A public or private degree or certificate granting college, university, junior college or community college of this state shall not discipline or discriminate against a student in a counseling, social work or psychology program because the student refuses to counsel or serve a client as to goals that conflict with a sincerely held religious belief or moral conviction of the student, if the student refers the client to a counselor who will provide the counseling or services.”

It is noteworthy that, in contrast to the Arizona law, the Michigan bill requires only referral (rather than consultation) and permits students to bring a civil action for injunctive relief and seek damages as a remedy for a violation. This bill passed in the House in June 2012 but has not been addressed by the Senate. Lack of action may suggest the bill has died.

Tennessee Legislation

In March 2013, a bill was passed in the Tennessee Senate (S.B. 514), although it was not passed in the House. The bill:

"Prohibits public institutions of higher education from disciplining or discriminating against a student in a counseling, social work, or psychology program because the student refuses to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the student, if the student refers the client to a counselor who will provide the counseling or services." 

In May 2014, a bill was enacted in the Tennessee Senate (SB 2423/2115), stating:

"The governing board of a public institution of higher education operating under chapter 8 or 9 of this title shall not adopt policies that substantially burden students' free exercise of religion, but shall comply with the requirements of § 4-1-407(b)."

In February 2015, a bill was introduced in the Tennessee House of Representatives that:

"Prohibits public institutions of higher education from disciplining or discriminating against a student in a counseling, social work, or psychology program because the student refuses to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the student. — Amends TCA Title 4 and Title 49, Chapter 7, Part 1."

The bill was taken off notice in March of 2015.

Reducing discrimination in all spheres, including access to compassionate and competent mental health services, is an important goal of APA. Another goal is the academic freedom of professional education and training programs in psychology to determine what knowledge and skills students need to acquire to meet the responsibilities of a practicing psychologist. We share these goals with the other mental health professions whose training programs are also targeted by such legislation.

The intrusion of state legislatures into the education and training of mental health professionals is very troubling to us. We see no justification for this action and are concerned about where it might lead. In this regard, it should be noted that there are already government regulatory bodies at the state level, such as Psychology Boards, that provide the interface between the profession and state government. The legislation in question places a barrier in the way of training students to fulfill what will ultimately be their ethical obligations regarding non-discrimination.

The Guidelines and Principles for Accreditation, as endorsed by the discipline of psychology, require psychology training programs to ensure that all students attain an understanding of cultural and individual diversity as related to both the science and practice of psychology (as well as their integration), along with the relevant skills and competencies to provide services to all segments of the general public. Students need to be trained in all aspects of diversity prior to receiving their degree because they may grow and change in their beliefs, preferences in populations with whom they would like to work, geographic region, etc. They need to receive broad exposure to populations and issues while in training. It is through supervised training that they learn most about their own abilities and begin to understand their strengths and limitations. Although referral to other providers is desirable, appropriate and/or even called for in certain circumstances, there are significant limits on the practicality of referral when professionals are serving in certain settings, such as schools and rural communities.

APA and the Arizona Psychological Association sent a letter to the Arizona governor (with follow-up outreach to her education and legislative staff) requesting that the bill be vetoed due to the concerns noted above. Psychology’s advocacy efforts also included legislative action alerts sent by APA to Arizona psychology training directors and by the American Psychological Association of Graduate Students to psychology graduate students in Arizona. We have consulted with the Michigan Psychological Association and are awaiting further guidance about how we might provide additional assistance. Similarly we consulted with the Tennessee Psychological Association each time that conscience clause legislation was introduced.

APA continues to monitor state and federal legislation through a bill tracking service to identify “conscience clause” provisions related to psychology and/or other mental health professions. In so doing, APA strives to keep abreast of proposed legislation that threatens the profession of psychology in terms of training, practice, ethics and accreditation. We monitor the legal cases in states (including Georgia and Michigan) where students enrolled in other mental health training programs have sued institutions of higher education related to refusal to counsel clients on religious grounds. These cases are just beginning to reach the federal courts. Although the rulings so far are in favor of the universities’ requirements over students’ refusal to counsel clients on religious grounds, they are under appeal.

We carefully monitored the legal cases in states where students enrolled in other mental health training programs have sued institutions of higher education related to refusal to counsel clients on religious grounds. In two separate cases (Keeton v. Anderson-Wiley, 2012; Ward v. Wilbanks, 2010) judges upheld the rights of a university to dismiss a trainee who is unable to attain competence. Both cases were subsequently appealed. In Keeton, the ruling was for the university. In Ward, the court raised questions about presence of written program policies about referral and the conduct of the formal disciplinary review hearing. The case was then remanded back to the district court. A private settlement was later reached between the university and Ward.