Morrison v. Bd. of Educ. of Boyd County, No. 06-5380, Nos. 06-5406/5407 (6th Cir. Apr. 9, 2008)
The U.S. Court of Appeals for the Sixth Circuit (KY, MI, OH, TN) has reversed itself and ruled that a student’s free speech claim for nominal damages based on a Kentucky school district’s previous anti-harassment policy was not justiciable. In a 2-1 panel decision in October 2007, the Sixth Circuit had ruled that the student stated a valid First Amendment claim that the policy had a "chilling effect" on his expressing his religious views about homosexuality. The suit had its roots in a 2003 consent decree the Boyd County Board of Education entered into as a result of a federal Equal Access Act lawsuit by a group of Boyd County High School (BCHS) students 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’s compliance provoked a new lawsuit in 2005 from the other direction when some parents claimed the policies would infringe on the right to express religious objections to homosexuality. In August 2005, while this new suit was pending, the school board revised its policies 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. 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 court identified the threshold issues as (1) whether a past chill on a student’s speech was a sufficient injury to confer legal standing for a lawsuit, and, if so, (2) whether nominal damages would be sufficient to redress such an injury. For this inquiry the court applied a three-part test examining 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, citing case law from the Second, Fifth, Ninth, and Tenth Circuits. Finding that the second and third prongs of the test also were satisfied, the court ruled that the claim could proceed. The school board petitioned the court to reconsider its decision en banc, i.e., with all judges participating.
After reviewing the record and the briefs for purposes of the en banc petition, the panel, again in a 2-1 split, ruled that the claim for nominal damages did not present a justiciable controversy, affirming the lower court on this point. Addressing Timothy’s legal standing to bring his claim, the appeals court focused on two questions: (1) whether the chill on his speech constituted a sufficient injury to confer standing; and (2) whether the federal district court had the capacity to redress such a harm. As to the first question of injury-in-fact, the court noted that a plaintiff must provide some proof that a defendant took specific action to suppress potential speech. “[A]bsent proof of a concrete harm,” the court found, “where a First Amendment plaintiff only alleges inhibition of speech, the federal courts routinely hold that no standing exists.” Timothy’s claim was speculative because the record was silent as to whether the district threatened to punish or would have punished him for protected speech in violation of its policy. Having disposed of the claim on the first question, the court nonetheless addressed the question of redressability. Because the policy had been revised, the court held, nominal damages would have no effect on the parties’ rights and would only have declaratory effect on a past policy now abandoned. The judge who authored the prior decision, now in dissent, restated her opinion that would have upheld Timothy’s claim.
Morrison v. Bd. of Educ. of Boyd County, No. 06-5380, Nos. 06-5406/5407 (6th Cir. Apr. 9, 2008)
[Editor’s Note: Background on the case is on the NSBA website, starting with the summary below of the Sixth Circuit’s previous opinion.]
NSBA School Law pages on Morrison v. Bd. of Educ. of Boyd County