Free-speech suit continues over policies enacted as settlement in prior case

Student says policies to prevent harassment based on sexual orientation chilled his right to express religious views

KENTUCKY -- A school district might have "chilled" student speech in its efforts to comply with a prior settlement reached with the ACLU by requiring students to participate in anti-harassment training and implementing a policy that forbade language that insults or stigmatizes an individual'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 changed after the 2004-05 school year, violated then-freshman Timothy Morrison's First Amendment rights by forcing him to keep his religious beliefs to himself for fear of punishment. The district court originally dismissed the lawsuit, ruling the case was moot because the policy was already changed. The appeals court ruled that Morrison still could pursue his claim for the alleged violation under the old policy.

"This decision vindicates that Christians are not second-class citizens and the expression of their faith should not be suppressed," said Joel Oster, Morrison's lawyer from the Alliance Defense Fund.

The current lawsuit stems from an agreement the Boyd County Board of Education reached with the American Civil Liberties Union over a separate First Amendment issue. During the 2002-03 school year, students started a chapter of the Gay-Straight Alliance, which was disbanded because of hostility toward the group, according to court records. The ACLU took the school district to court but reached a settlement before trial that required the school to "adopt policies prohibiting harassment on the basis of actual or perceived sexual orientation, and to provide mandatory anti-harassment training to all students," according to court documents.

Morrison, now a senior at Boyd High School, argues in the lawsuit that the school's policies, which defined harassment and discrimination in part as 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," prohibited him from expressing his religious views on homosexuality.

The 2-1 ruling will send the case back to the district court, where Morrison must show that the school's "policy would deter a person of ordinary firmness from exercising his or her First Amendment liberties."

Winter Huff, the Boyd County School District's lawyer, said she was disappointed with the decision and tends to view the case as Judge Deborah Cook did in her dissent. Cook wrote that the student chose to silence his opinions and that the school was not responsible for the perception that he could not voice his religious ideas.

"We cannot find a school district constitutionally liable for chilling student speech every time a student chooses caution over risking possible discipline," Cook wrote.

Morrison's lawyer, however, said his client's speech was chilled because he was afraid of the consequences.

"One of the consequences described not only expulsion, but also possible referral to the police," said Oster. "I know when I was a high school student, I would be afraid to say something if I thought I would get into trouble with the police."

The student also points to the anti-harassment training video, in which a clinical psychologist says that "you believe 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 ... There is not permission for you to point it out to them," according to court documents.

Huff said the school board since has changed the training video. The school also changed the wording of its policies and student code of conduct after Morrison filed his lawsuit.

The board will consider its legal options and will consider asking for a rehearing before the entire appeals court, Huff said. It has 14 days to file a response.

The ACLU's lawsuit was filed in April 2005, when Morrison was a freshman. As a current senior, his lawyer said he has been able to express his opinions since the policy was changed.

"He has been able to share his faith with others and indeed there has been no disruption," Oster said.

For More Information:

Morrison v. Bd. of Educ. of Boyd County, No. 06-5380, 2007 WL 3119480 (6th Cir. Oct. 26, 2007).

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