Morrison v. Board of Educ. of Boyd County, No. 06-5380 (6th Cir. Oct. 26, 2007)
The U.S. Court of Appeals for the Sixth Circuit (KY, MI, OH, TN), in 2-1 panel decision, has ruled that a student stated a valid First Amendment free speech claim that a school district’s anti-harassment policy had a "chilling effect" on his expressing his religious views about homosexuality. The suit has its roots in a 2003 consent decree the Boyd County school district entered into as a result of a federal Equal Access Act lawsuit by a group of Boyd County High School (BCHS) students who had been denied permission to start a Gay Straight Alliance (GSA). The consent decree required the district to adopt policies prohibiting harassment based on sexual orientation and to provide mandatory anti-harassment training to all students. The school board adopted the anti-harassment policy, and BCHS implemented a student code of conduct based on the policy. In addition, the district created two training videos, one for middle school students and one for high school students. In response, in 2005 parents of some students filed a new lawsuit, claiming the policies and the mandatory training would infringe on their right to express their religious beliefs regarding homosexuality. In August 2005, while the suit was still pending, the school board revised its policy and the BCHS code to make clear that there was no outright ban on anti-homosexual speech. In February 2006, the U.S. district court upheld these revisions, declining to address the constitutionality of the previous policy and code on the ground they were no longer in effect. The court also rejected the plaintiffs’ claim for nominal damages, finding the claim "unsupported by any factual allegations."
On appeal to the Sixth Circuit, the plaintiffs’ claim for nominal damages was premised on BCHS student Timothy Morrison’s speech having been "chilled" during the 2004-05 school year. The appeals court limited its review to Timothy’s free speech claim for nominal damages and identified the threshold issues as whether a past "chill" on a student’s speech was sufficient injury to confer legal standing for a suit and, if so, whether nominal damages would be sufficient to redress such this harm. For this inquiry the court applied a three-part test: whether there was (1) an injury-in-fact; (2) that was fairly traceable to the defendant’s allegedly unlawful conduct; and (3) that was likely to be redressed by a favorable decision. The court found ample support for the notion that a past "chill" constitutes an injury in fact in the case law from the Second, Fifth, Ninth, and Tenth Circuits. Finding that the second and third prongs of the test were also satisfied by the case, the court held that the claim for nominal damages based on a past chill on speech could proceed.
Moving to the merits of the claim, the court remanded the case to the lower court for further proceedings to resolve two factual questions. First, there was a question about which policy applied to Timothy during the 2004-05 school year. Although the school board insisted that the student could not have been disciplined under its new policy because the policy contained a clause that it did not "apply to speech otherwise protected under the state or federal constitutions," the BCHS student code conduct contained no such clause. In addition, it was unclear to what extent the training video represented BCHS policy; the video’s prohibition appeared broader than the one in the code. Second, even if the board’s policy violated the First Amendment on its face, that fact alone would be insufficient to establish a past chill on the student’s speech without any proof that the policy had been applied to him.
The dissent took issue with the majority’s reasoning that a past chill based on a policy that had been revised and had never been applied to the student was worthy of litigation. Whether Timothy would have been disciplined was speculative and, as such, did not constitute an injury in fact. The dissent failed to see "how nominal damages would redress an injury of ‘past chill’" and characterized the relief sought as nothing more than a declaratory judgment, which the dissent said was rendered unnecessary when the school board revised the policy and the student conduct code.
Morrison v. Board of Educ. of Boyd County, No. 06-5380 (6th Cir. Oct. 26, 2007)
[Editor’s Note: The past developments in this saga are summarized starting below.]
NSBA School Law pages on Morrison v. Board of Educ. of Boyd County