Appeals panel reverses itself, dismisses Ky. student's free-speech lawsuit

KENTUCKY — Six months after ruling a high schoolstudent could continue a lawsuit challenging his district’s formeranti-discrimination policy, a federal appellate court panel reversed itself Wednesday anddecided his case should be dismissed.

Timothy Morrison, a student at Boyd County High School, filed suit againstthe county school district in February 2005, alleging the school’s and thedistrict’s anti-discrimination policies adopted for the 2004-05 school yearinfringed on his free-speech right to express his religious opposition tohomosexuality. The policies had been adopted to settle a previous lawsuit,backed by the American Civil Liberties Union, filed by several students afterthe district shut down the high school’s newly formed Gay StraightAlliance.

The district-wide policy at the time defined harassment and discriminationas “unlawful behavior” based on characteristics such as race or sexualorientation “that is sufficiently severe, pervasive, or objectively offensivethat it adversely affects a student’s education or creates a hostile orabusive educational environment.” It also specifically noted that the definitiondid not include speech protected by the state or federal constitutions.

But the high school Code of Conduct did not include that caveat and usedbroader language, banning, among other things, “the use of language, conduct, orsymbols 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.”And an anti-harassment training video shown to high school students included astatement from a clinical psychologist that even if students strongly believesome of their classmates’ beliefs are wrong, “that does not give you permissionto say anything about it.”

The board revised its policy, as well as the high school and middle schoolcodes of conduct, in August 2005. The new high school code, for example, statedthat “the civil exchange of opinions or debate does not constitute harassment”as long as it does not materially and substantially disrupt the educationalprocess or violate other students’ rights.

But the lawsuit continued. Morrison argued the now-defunct policy hadchilled his speech, preventing him from expressing constitutionally protectedviews. He asked for $1 in damages and a ruling that the district had violatedhis rights.

A federal district court dismissed the suit in February 2006 afterconcluding it was no longer necessary to rule on the constitutionality ofpolicies that were no longer in force. But a three-judge panel of the 6th U.S.Circuit Court of Appeals reversed that decision in October 2007. The panel ruled2-1 that “an allegation of a past chill of First Amendment-protected activity”was enough to allow Morrison’s case to proceed.

The school district asked for a rehearing before the full 6th Circuit.Ultimately, one of the original panel judges — U.S. District Judge John R.Adams — changed his vote to form a new 2-1 majority in favor ofending Morrison’s case. He did not write a separate opinion either time.

Circuit Judge Deborah L. Cook, in the new majority opinion, emphasized thatthe school board — not the high school or individual administrators– was the only defendant in the case. Thus, she concluded, only thedistrict-wide policy was relevant to Morrison’s claim, and that policyexplicitly exempted Constitutionally protected speech. Morrison lacked standingto continue his case, she wrote, because he could not show the board’s policyhad caused him actual harm.

“The claim at stake here involves Morrison’s choice to chill his ownspeech based on his perception that he would be disciplined for speaking,” shewrote. “But whether he would have been so punished, we can onlyspeculate.”

And because the district and school policies already had been changed,further proceedings would have no practical effect, she wrote.

“This case should be over. Allowing it to proceed to determine theconstitutionality of an abandoned policy–in the hope of awarding theplaintiff a single dollar–vindicates no interest and trivializes theimportant business of the federal courts.”

But Circuit Judge Karen Nelson Moore, in a dissent refashioned from heroriginal majority opinion, said the new decision conflicts with precedents in the 6thCircuit and other circuit courts, which have held that chilled speech sometimescan constitute enough of an injury to grant plaintiffs standing.

“Furthermore, the majority’s peevish sense that the instant action isa waste of the federal courts’ time minimizes the federal courts’

essential role in protecting free expression under the First Amendment,” Moorewrote.

Winter Huff, an attorney representing the school board, said the districtis pleased with the panel’s new ruling. The district’s policies have alwaysrespected First Amendment rights, Huff said. And although some portions of theindividual school codes might originally have been “questionable” when read in isolation,she said, “I don’t think even the school code provisions were inappropriate incontext … The Boyd County School District is not in any way, shape or formtrying to constrain the First Amendment as it applies to students or staff oranyone else.”

Joel Oster, an Alliance Defense Fund attorney representing the Morrisons,said they would ask for a rehearing before the full 6th Circuit. Oster said heis confident the court will rule in Morrison’s favor in light of the conflictingprecedents Moore cited in her dissent.

“We believe the First Amendment rights of school age children are importantand should be respected,” he said.