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

KENTUCKY -- Six months after ruling a high school student could continue a lawsuit challenging his district's former anti-discrimination policy, a federal appellate court panel reversed itself Wednesday and decided his case should be dismissed.

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

The district-wide policy at the time defined harassment and discrimination as "unlawful behavior" based on characteristics such as race or 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." It also specifically noted that the definition did not include speech protected by the state or federal constitutions.

But the high school Code of Conduct did not include that caveat and used broader language, banning, among other things, "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." And an anti-harassment training video shown to high school students included a statement from a clinical psychologist that even if students strongly believe some of their classmates' beliefs are wrong, "that does not give you permission to say anything about it."

The board revised its policy, as well as the high school and middle school codes of conduct, in August 2005. The new high school code, for example, stated that "the civil exchange of opinions or debate does not constitute harassment" as long as it does not materially and substantially disrupt the educational process or violate other students' rights.

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

A federal district court dismissed the suit in February 2006 after concluding it was no longer necessary to rule on the constitutionality of policies 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 ruled 2-1 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 of ending Morrison's case. He did not write a separate opinion either time.

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

"The claim at stake here involves Morrison's choice to chill his own speech based on his perception that he would be disciplined for speaking," she wrote. "But whether he would have been so punished, we can only speculate."

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 the constitutionality of an abandoned policy--in the hope of awarding the plaintiff a single dollar--vindicates no interest and trivializes the important business of the federal courts."

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

"Furthermore, the majority's peevish sense that the instant action is a waste of the federal courts' time minimizes the federal courts'

essential role in protecting free expression under the First Amendment," Moore wrote.

Winter Huff, an attorney representing the school board, said the district is pleased with the panel's new ruling. The district's policies have always respected First Amendment rights, Huff said. And although some portions of the individual school codes might originally have been "questionable" when read in isolation, she said, "I don't think even the school code provisions were inappropriate in context ... The Boyd County School District is not in any way, shape or form trying to constrain the First Amendment as it applies to students or staff or anyone 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 he is confident the court will rule in Morrison's favor in light of the conflicting precedents Moore cited in her dissent.

"We believe the First Amendment rights of school age children are important and should be respected," he said.

Boyd County High School, Kentucky, news