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

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.

* * *

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