KENTUCKY — A school district might have “chilled” student speech in its efforts to comply with a prior settlement reached with theACLU by requiring students to participate in anti-harassment training andimplementing a policy that forbade language that insults or stigmatizes anindividual’s sexual orientation, a federal appeals court ruled Oct.26.
The ruling sends the case back to the U.S. District Court in Ashland, Ky.,where the judge must determine if the district’s policy, which was changedafter the 2004-05 school year, violated then-freshman Timothy Morrison’sFirst Amendment rights by forcing him to keep his religious beliefs to himselffor fear of punishment. The district court originally dismissed the lawsuit,ruling the case was moot because the policy was already changed. The appealscourt ruled that Morrison still could pursue his claim for the alleged violationunder the old policy.
“This decision vindicates that Christians are not second-classcitizens and the expression of their faith should not be suppressed,” saidJoel Oster, Morrison’s lawyer from the Alliance Defense Fund.
The current lawsuit stems from an agreement the Boyd County Board ofEducation reached with the American Civil Liberties Union over a separate FirstAmendment issue. During the 2002-03 school year, students started a chapter ofthe Gay-Straight Alliance, which was disbanded because of hostility toward thegroup, according to court records. The ACLU took the school district to courtbut reached a settlement before trial that required the school to “adoptpolicies prohibiting harassment on the basis of actual or perceived sexualorientation, and to provide mandatory anti-harassment training to allstudents,” according to court documents.
Morrison, now a senior at Boyd High School, argues in the lawsuit that theschool’s policies, which defined harassment and discrimination in part asthe “use of language, conduct, or symbols in such manner as to be commonlyunderstood to convey hatred, contempt, or prejudice or to have the effect ofinsulting or stigmatizing an individual,” prohibited him from expressinghis religious views on homosexuality.
The 2-1 ruling will send the case back to the district court, whereMorrison must show that the school’s “policy would deter a person ofordinary firmness from exercising his or her First Amendment liberties.”
Winter Huff, the Boyd County School District’s lawyer, said she wasdisappointed with the decision and tends to view the case as Judge Deborah Cookdid in her dissent. Cook wrote that the student chose to silence his opinionsand that the school was not responsible for the perception that he could notvoice his religious ideas.
“We cannot find a school district constitutionally liable forchilling student speech every time a student chooses caution over riskingpossible discipline,” Cook wrote.
Morrison’s lawyer, however, said his client’s speech waschilled because he was afraid of the consequences.
“One of the consequences described not only expulsion, but alsopossible referral to the police,” said Oster. “I know when I wasa high school student, I would be afraid to say something if I thought I wouldget into trouble with the police.”
The student also points to the anti-harassment training video, in which aclinical psychologist says that “you believe you believe, just because youdon’t like them, just because you disagree with them, just because youbelieve they are wrong, whole heartedly, absolutely, they are wrong … Justbecause you believe that does not give you permission to say anything about it… There is not permission for you to point it out to them,” according tocourt documents.
Huff said the school board since has changed the training video. The schoolalso changed the wording of its policies and student code of conduct afterMorrison filed his lawsuit.
The board will consider its legal options and will consider asking for arehearing before the entire appeals court, Huff said. It has 14 days to file aresponse.
The ACLU’s lawsuit was filed in April 2005, when Morrison was afreshman. As a current senior, his lawyer said he has been able to express hisopinions since the policy was changed.
“He has been able to share his faith with others and indeed there hasbeen no disruption,” Oster said.
For More Information:
Morrison v. Bd. of Educ. of Boyd County, No. 06-5380, 2007 WL3119480 (6th Cir. Oct. 26, 2007).