Date: 11-06-2007

Case Style: Timothy Morrison, et al. v. Board of Education of Boyd County

Case Number: 06-5380/5406/5407

Judge: Karen Nelson Moore

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Eastern District of Kentucky (Boyd County)

Plaintiff's Attorney:

Joel L. Oster, ALLIANCE DEFENSE FUND, Leawood, Kansas, for Plaintiffs.

Defendant's Attorney:

Sharon McGowan, AMERICAN CIVIL LIBERTIES UNION, New York, New York, Winter R. Huff, LAW OFFICES OF JOHN G. PRATHER, Somerset, Kentucky, for Defendants.

Description:

Timothy Morrison ("Morrison") was a student at Boyd County High School ("BCHS"). He is a Christian, and he believes that homosexuality is a sin. He further believes that part of his responsibility as a Christian is to tell others when their conduct does not comport with his understanding of Christian morality. During the 2004-05 academic year, BCHS had a written policy prohibiting students from making stigmatizing or insulting comments regarding another student's sexual orientation. Morrison did not want to be punished, so he kept to himself his beliefs regarding homosexuality.

After Morrison filed this lawsuit, the Board of Education of Boyd County ("Board") changed the BCHS policy, but the litigation did not end. We must now decide whether Morrison's claim for nominal damages premised upon the "chill" on Morrison's speech during the 2004-05 school year presents a justiciable controversy. We conclude that it does and accordingly REVERSE the district court's grant of summary judgment to the school board on this claim. Because genuine issues of material fact prevent us from determining the merits of Morrison's free-speech claim, we REMAND the case to the district court for further proceedings.

I. BACKGROUND

A. Factual Background

In 2002, some students at Boyd County High School ("BCHS") petitioned to start a chapter of the Gay Straight Alliance ("GSA"). Boyd County High Sch. Gay Straight Alliance v. Bd. of Educ. of Boyd County, 258 F. Supp. 2d 667, 670 (E.D. Ky. 2003). Their efforts were met with hostility, which was not very surprising given BCHS students' history of intolerance toward homosexuality. Id. at 670-74. To quell the hostility, within two months of approving the GSA, the school banned the GSA, as well as purported to ban all other student organizations for the 2002-03 school year. Id. at 675.

In response, a group of students who had attempted to spearhead the GSA chapter and their parents sued the school district in federal court. After the district court issued a preliminary injunction requiring the school board to give the GSA chapter equal access to that afforded other student groups, id. at 693, the suit ended in a consent decree. One provision in the consent decree required the school district to adopt policies prohibiting harassment on the basis of actual or perceived sexual orientation, and to provide mandatory anti-harassment training to all students.

Prior to the 2004-05 school year, in attempting to comply with the consent decree, the school district adopted Policy 09.42811 as the district-wide anti-harassment policy. Policy 09.42811 prohibited "Harassment/ Discrimination," which it defined as

unlawful behavior based on race, color, national origin, age, religion, sex[,] actual or perceived sexual orientation or gender identity, or disability that is sufficiently severe, pervasive, or objectively offensive that it adversely affects a student's education or creates a hostile or abusive educational environment.

The provisions in this policy shall not be interpreted as applying to speech otherwise protected under the state or federal constitutions where the speech does not otherwise materially or substantially disrupt the educational process . . . .

Joint Appendix ("J.A.") at 120. BCHS's 2004-05 Code of Conduct repeated the first paragraph of Policy 09.42811, J.A. at 270 (BCHS Code at 3) but later stated:

Harassment/discrimination is intimidation by threats of or actual physical violence; the creation by whatever means, of a climate of hostility or intimidation, or the use of language, conduct, or symbols in such manner as to be commonly understood to convey hatred, contempt, or prejudice or to have the effect of insulting or stigmatizing an individual.

J.A. at 277 (BCHS Code at 16).

Additionally, the school district created two training videos - one for Boyd County Middle School ("BCMS") and one for BCHS - to fulfill the anti-harassment training provisions of the consent decree. As relevant here, the high school training video included a lengthy discussion of the ills of bullying and name-calling. The participants included a BCHS social studies teacher,1 some students, an "ADL Facilitator,"2 and a clinical psychologist. Additionally, the BCHS training video contained a passage discussing sexual orientation. Near the end of this passage, the clinical psychologist stated,

. . . . We all get self-centered and start to think that our way is the right way and our way is the correct way. We all want to believe that we have evidence that our way is the correct way. . . .

So . . . no matter where you go, no matter what you do, no matter who you meet, you are going to find people that you don't like. You're going to find people that you disagree with. You're going to find people that you don't like the way they act. It can't be avoided, not, not anywhere in the world, it can't be avoided. You're going to find people that you believe are absolutely wrong. You're going to think[, W]hat are they thinking? That, that is so wrong, it[']s obvious to everybody[." B]ut not to them. Because they believe you are wrong. You can't avoid meeting people that you believe are wrong. But here is the kicker, just because you believe, just because you don't like them, just because you disagree with them, just because you believe they are wrong, whole heartedly, absolutely, they are wrong. Just because you believe that does not give you permission to say anything about it. It doesn't require that you do anything. You just respect, you just exist, you continue, you leave it alone. There is not permission for you to point it out to them.

J.A. at 229 (BCHS Training Video Tr. at 29) (emphasis added).

The new policies and the mandatory training sparked further acrimony in Boyd County. This time, some parents feared that the training would discourage, and the policies would prohibit, their children from speaking about their religious beliefs regarding homosexuality. Some parents withheld their children from the mandatory training. Eventually, a group of parents and students sued.

B. Procedural Background

On February 15, 2005, a group of plaintiffs3 filed their complaint in the United States District Court for the Eastern District of Kentucky. They named the Boyd County Board of Education ("Board") as the sole defendant and pursued claims under 42 U.S.C. § 1983 for violations of various constitutional rights, specifically, their rights to free speech (styled as the "FIRST CAUSE OF ACTION"), due process (second cause of action), equal protection (third cause of action), and free exercise of religion (fourth cause of action). The crux of the plaintiffs' complaint is that the speech codes in effect during the 2004-05 school year prevented students in Boyd County from speaking their convictions that homosexuality is sinful, and the speech codes and training together undermined their ability to practice their Christian faith. For these asserted violations, the plaintiffs sought declaratory relief, injunctive relief, actual damages, nominal damages, costs, and attorney fees.

On April 18, 2005, the district court permitted the plaintiffs from the earlier action to intervene. The intervenors filed their Answer in Intervention that day, denying that the plaintiffs had suffered any constitutional violations.4

In August 2005, the Board revised its policy, as well as the BCMS and BCHS student codes of conduct. Under the revised codes, anti-homosexual speech would not be prohibited unless it was "sufficiently severe or pervasive that it adversely affects a student's education or creates a climate of hostility or intimidation for that student, both from the perspective of an objective educator and from the perspective of the student at whom the harassment is directed." J.A. at 655 (2005-06 BCHS Code of Conduct at 40); accord J.A. at 642 (2005-06 BCMS Discipline Code at 16). Additionally, the BCHS Code of Conduct stated, "The civil exchange of opinions or debate does not constitute harassment. Students may not, however, engage in behavior that interferes with the rights of another student or materially and substantially disrupts the educational process." J.A. at 655 (2005-06 BCHS Code of Conduct at 40).

After these revisions, the parties filed cross-motions for summary judgment. On February 17, 2006, the district court issued its opinion and judgment granting the Board's motion and denying both the plaintiffs' and the intervenors' motions. Noting the changes that had been made to the policies that were initially challenged, the district court indicated that it was "not inclined to adjudge the constitutionality of policies no longer in effect," and rejected all of the Plaintiffs' challenges to the written policies on this basis. J.A. at 672 (Dist. Ct. Mem. Op. at 7). Additionally, the district court determined that the Plaintiffs' claim for damages failed because "Plaintiffs were unable to specify the measure and amount of their alleged damages." J.A. at 680 (Dist. Ct. Mem. Op. at 15). The district court further stated that "even their request for nominal damages remains unsupported by any factual allegations," and that "Plaintiffs have made no specific plea" for damages incurred prior to the Board's change in policies. Id.

After the district court entered a corrected judgment for reasons not relevant to this appeal, both the plaintiffs and the intervenors timely appealed.

* * *

Generally, concerns regarding "chilled" speech are forward-looking. For example, the doctrine of overbreadth constitutes an exception to prudential standing requirements and permits a party with constitutional standing to raise First Amendment claims of third parties who are not present, but whose speech may be chilled in the future if the regulation stands. Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 349 (6th Cir. 2007); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1367 (10th Cir. 2000). Similarly, a statute may be void for vagueness if it would deter would-be speakers from speaking because they cannot tell whether their intended speech falls within the statute's prohibitions. See, e.g., Reno v. ACLU, 521 U.S. 844, 871-72 (1997) ("The vagueness of [a content-based speech] regulation raises special First Amendment concerns because of its obvious chilling effect on free speech."); Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (noting that a vague statute "operates to inhibit the exercise of [First Amendment] freedoms" (citation omitted)). Here, however, Morrison focuses on a past chill, rather than a future chill, arguing that he would have spoken during the 2004-05 school year, but that the speech code then in effect prevented him from doing so.

To determine whether such a chill confers standing, we apply a three-part test. A plaintiff has constitutional standing when he or she can show: (1) an injury-in-fact that; (2) was "fairly traceable to the defendant's allegedly unlawful conduct"; and (3) is "likely to be redressed" via a favorable decision. Prime Media, 485 F.3d at 349 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). We consider these parts in turn.

* * *

Morrison easily satisfies the causation part of the standing inquiry. The Complaint alleges that "[t]he named student plaintiff has refrained from conveying his views on homosexuality to his classmates because the School District policies restricting speech prohibit him from doing so." J.A. at 26 (Compl. 34). Further, Morrison testified through affidavit that he held his tongue because of the policy. This testimony is uncontroverted.

* * *

Finally, we conclude that Morrison satisfies the third part - redressability - of the standing inquiry. Although a favorable decision cannot provide Morrison an opportunity to travel back in time and utter the speech he withheld, it can provide him with nominal damages. Even though these damages amount to little, they serve to vindicate his rights

* * *

The Board asks us to affirm the district court's grant of summary judgment on the merits, arguing that the policies in effect during the 2004-05 school year were consistent with the standard set out in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). At the same time, Morrison asks us to grant him summary judgment on his nominal damages claim because his affidavit testimony that he withheld his speech because of the policy was uncontradicted, and because the policy, he claims, fails to comport with Tinker. We decline both parties' entreaties and instead REVERSE the district court's judgment insofar as it pertains to Morrison's free-speech claim seeking nominal damages, and REMAND for further proceedings. We do so for two reasons.

First, there remains a genuine issue of material fact regarding the policy applicable to Morrison during the 2004-05 school year. The Board contends that Morrison could not have been disciplined because the school district's speech policy contained a savings clause preventing it from "apply[ing] to speech otherwise protected under the state or federal constitutions . . . ." J.A. at 120 (2004-05 Sch. Dist. Policy 09.42811). The BCHS Code, by contrast, contains no such savings clause in either of its definitions of harassment. The first definition restricted harassment to "unlawful behavior based on" a protected characteristic, including sexual orientation, "that is sufficiently severe, pervasive, or objectively offensive that it adversely affects a student's education or creates a hostile or abusive educational environment." J.A. at 270 (2004-05 BCHS Student Code at 3). This definition tacks quite closely to the Tinker standard. See Tinker, 393 U.S. at 513 (holding that schools cannot restrict student speech that neither "materially and substantially interfer[es] with the requirements of appropriate discipline in the operation of the school" nor "collid[es] with the rights of others"). The other definition, by contrast, does not. Under the heading "DISCIPLINARY INFRACTIONS," the 2004-05 BCHS Code defined harassment to include "the use of language . . . in such manner as to be commonly understood to convey hatred, contempt, or prejudice or to have the effect of insulting or stigmatizing an individual." J.A. at 277 (2004-05 BCHS Student Code at 16). Immediately following this definition, the BCHS Code listed a series of consequences for violating the prohibition on harassment, which could be read as implying that this represents the operative definition of harassment.

If these inconsistencies were not enough, it is also unclear to what extent the statements in the training video represented the school's policy. The video's prohibition appears to have been even broader than the latter definition of harassment in the Student Code, as the video informed students that "[t]here is not permission for you to point . . . out" areas in which they disagree with other students. J.A. at 229 (BCHS Training Video Tr. at 29). Because the district court did not address the merits of Morrison's free-speech claim, it did not have occasion to determine which policy governed Morrison's conduct at school during the 2004-05 academic year. We decline to address this issue in the first instance, concluding that the more prudent course of action is to remand the case to the district court for appropriate factual development.

Second, even if we were certain that the policy violated Tinker, we do not believe this alone would be sufficient for Morrison to establish a First Amendment claim premised entirely upon a past chill. Such a holding would permit anyone who had, at one time, operated under an unconstitutional speech policy to sue (within the applicable statute of limitations) and win merely by filing an affidavit claiming that the policy prevented him or her from saying something that he or she wished to say. This would be so even if the speech policy were no longer in existence. The problem with such a scenario is that, because the potential plaintiff never spoke and the regulation in question was never affirmatively applied against him or her, courts would be unable to tell whether the plaintiff actually suffered the alleged harm, i.e., the past chill. Rather than allowing a plaintiff to premise such a claim on purely subjective allegations, we believe that a more objective inquiry is also necessary.

We find support for such a requirement in our case law, specifically in our jurisprudence regarding First Amendment retaliation claims. Plaintiffs alleging such claims must prove that "an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in [First Amendment-protected] conduct." Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). This element introduces an objective component into the First Amendment inquiry by requiring that the adverse action "would deter a person of ordinary firmness from" exercising First Amendment rights. Along these lines, we hold that when a plaintiff seeks to prove under the First Amendment a damages claim premised upon a past chill, he or she must establish that the policy or action of the defendant would deter a person of ordinary firmness from exercising his or her First Amendment rights in the way the plaintiff alleges he or she would have, but for the defendant's action or policy.8 We are not alone in this holding, as the Ninth Circuit requires plaintiffs in similar cases to establish this element. See White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000).

As the parties have not had occasion to address this element, we do not do so either, but instead leave it for the district court to do so on remand.

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For the full text of this opinion, go to: http://www.ca6.uscourts.gov/opinions.pdf/07a0431p-06.pdf

Outcome: For the reasons described above, we hold that an allegation of a past chill of First Amendment-protected activity is sufficient to confer standing to a plaintiff seeking retrospective relief, even when that relief comes in the form of nominal damages. We further hold that to establish such a claim, a plaintiff must show that the defendant’s actions or policy would deter a person of ordinary firmness from exercising his or her First Amendment liberties in the way that the plaintiff alleges he or she would have, were it not for the defendant’s conduct or policy. Consequently, we REVERSE the district court’s grant of summary judgment to the Board, but only insofar as it pertains to Morrison’s free-speech claim seeking nominal damages. We also REMAND this case to the district court for further proceedings consistent with this opinion.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None