Morrison v. Board of Educ. of Boyd County

Decision Date09 April 2008
Docket NumberNo. 06-5380.,No. 06-5407.,No. 06-5406.,06-5380.,06-5406.,06-5407.
PartiesTimothy MORRISON et al., Plaintiffs-Appellants (06-5380; 06-5406)/Cross-Appellees, v. BOARD OF EDUCATION OF BOYD COUNTY, Defendant-Appellee, William Carter et al., Intervenors-Defendants-Appellees/Cross-Appellants (06-5407).
CourtU.S. Court of Appeals — Sixth Circuit

Joel L. Oster, Alliance Defense Fund, Leawood, Kansas, for Plaintiffs. Winter R. Huff, Law Offices of John G. Prather, Somerset, Kentucky, for Defendants. Sharon McGowan, American Civil Liberties Union, New York, New York, for Intervenors.

ON BRIEF:

Joel L. Oster, Kevin H. Theriot, Alliance Defense Fund, Leawood, Kansas, Benjamin W. Bull, Gary McCaleb, Alliance Defense Fund, Scottsdale, Arizona, for Plaintiffs. Winter R. Huff, LAW Offices of John G. Prather, Somerset, Kentucky, Kimberly S. McCann, VanAntwerp, Monge, Jones & Edwards, LLP, Ashland, Kentucky, for Defendants. Sharon McGowan, Kenneth Y. Choe, American Civil Liberties Union, New York, New York, David A. Friedman, Fernandez, Friedman, Haynes & Kohn, Louisville, Kentucky, for Intervenors.

Before: MOORE and COOK, Circuit Judges; and ADAMS, District Judge.*

COOK, J., delivered the opinion of the court, in which ADAMS, D. J., joined. MOORE, J. (pp. 611-25), delivered a separate dissenting opinion.

AMENDED OPINION

COOK, Circuit Judge.

This panel heard arguments in the matter before us on July 25, 2007, after which we filed an opinion, Morrison v. Board of Education of Boyd County, 507 F.3d 494 (6th Cir.2007), reversing the judgment of the district court and remanding for further proceedings. Subsequently, the Board of Education of Boyd County (the "Board") filed a petition for rehearing en banc. Review of the briefs and record counsels us to reconsider our previous holding, and as a result we vacate and amend Sections III and IV of the prior opinion. We now affirm the district court's decision and set forth our opinion, as amended, below.

In this appeal, Timothy Morrison ("Morrison") challenges the district court's grant of summary judgment in favor of the Board. Morrison is a student at Boyd County High School ("BCHS"). He is a Christian who believes that homosexuality is a sin. He further believes that part of his responsibility as a Christian is to tell others when their conduct does not comport with his understanding of Christian morality. During the 2004-05 academic year, BCHS had a written policy prohibiting students from making stigmatizing or insulting comments regarding another student's sexual orientation. Wary of potential punishment, Morrison remained silent with respect to his personal beliefs, but challenged in federal court the Board's right to stifle his speech.

After Morrison filed this lawsuit, the Board changed the BCHS policy, but Morrison's litigation did not end. We must now decide whether Morrison's claim for nominal damages premised upon a "chill" on his speech during the 2004-05 school year presents a justiciable controversy. We conclude that it does not, and accordingly AFFIRM the district court's grant of summary judgment to the Board.

I. BACKGROUND
A. Factual Background

In 2002, some students at BCHS petitioned to start a chapter of the Gay Straight Alliance ("GSA"). Boyd County High Sch. Gay Straight Alliance v. Bd. of Educ. of Boyd County, 258 F.Supp.2d 667, 670 (E.D.Ky.2003). Their efforts were met with hostility, which was not very surprising given BCHS students' history of intolerance toward homosexuality. Id. at 670-74. To quell the hostility, within two months of approving the GSA, the school banned the GSA, as well as purported to ban all other student organizations for the 2002-03 school year. Id. at 675.

In response, a group of students who had attempted to spearhead the GSA chapter and their parents sued the school district in federal court. After the district court issued a preliminary injunction requiring the school board to give the GSA chapter equal access to that afforded other student groups, id. at 693, the suit ended in a consent decree. One provision in the consent decree required the school district to adopt policies prohibiting harassment on the basis of actual or perceived sexual orientation, and to provide mandatory anti-harassment training to all students.

Prior to the 2004-05 school year, in attempting to comply with the consent decree, the school district adopted Policy 09.42811 as the district-wide anti-harassment policy. Policy 09.42811 prohibited "Harassment/Discrimination," which it defined as:

unlawful behavior based on race, color, national origin, age, religion, sex[,] actual or perceived sexual orientation or gender identity, or disability that is sufficiently severe, pervasive, or objectively offensive that it adversely affects a student's education or creates a hostile or abusive educational environment.

The provisions in this policy shall not be interpreted as applying to speech otherwise protected under the state or federal constitutions where the speech does not otherwise materially or substantially disrupt the educational process....

Joint Appendix ("J.A.") at 120. BCHS's 2004-05 Code of Conduct repeated the first paragraph of Policy 09.42811, J.A. at 270 (BCHS Code at 3), but later stated:

Harassment/discrimination is intimidation by threats of or actual physical violence; the creation by whatever means, of a climate of hostility or intimidation, or 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.

J.A. at 277 (BCHS Code at 16).

Additionally, the school district created two training videos — one for Boyd County Middle School ("BCMS") and one for BCHS — to fulfill the anti-harassment training provisions of the consent decree. As relevant here, the high school training video included a lengthy discussion of the ills of bullying and name-calling. The participants included a BCHS social studies teacher,1 some students, an "ADL Facilitator,"2 and a clinical psychologist. Additionally, the BCHS training video contained a passage discussing sexual orientation. Near the end of this passage, the clinical psychologist stated:

....We all get self-centered and start to think that our way is the right way and our way is the correct way. We all want to believe that we have evidence that our way is the correct way....

So ... no matter where you go, no matter what you do, no matter who you meet, you are going to find people that you don't like. You're going to find people that you disagree with. You're going to find people that you don't like the way they act. It can't be avoided, not, not anywhere in the world, it can't be avoided. You're going to find people that you believe are absolutely wrong. You're going to think[, "W]hat are they thinking? That, that is so wrong, it[']s obvious to everybody[." B]ut not to them. Because they believe you are wrong. You can't avoid meeting people that you believe are wrong. But here is the kicker, just because 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. It doesn't require that you do anything. You just respect, you just exist, you continue, you leave it alone. There is not permission for you to point it out to them.

J.A. at 229 (BCHS Training Video Tr. at 29) (emphases added).

The new policies and the mandatory training sparked further acrimony in Boyd County. This time, some parents feared that the training would discourage, and the policies would prohibit, their children from speaking about their religious beliefs regarding homosexuality. Some parents withheld their children from the mandatory training. Eventually, a group of parents and students sued.

B. Procedural Background

On February 15, 2005, a group of plaintiffs3 filed a complaint in the United States District Court for the Eastern District of Kentucky. They named the Board as the sole defendant and pursued claims under 42 U.S.C. § 1983 for violations of various constitutional rights, specifically, their rights to free speech (first cause of action), due process (second cause of action), equal protection (third cause of action) and free exercise of religion (fourth cause of action). The crux of the plaintiffs' complaint is that the speech codes in effect during the 2004-05 school year prevented students in Boyd County from voicing their convictions that homosexuality is sinful, and the speech codes and training together undermined their ability to practice their Christian faith. For these asserted violations, the plaintiffs sought declaratory relief, injunctive relief, actual damages, nominal damages, costs, and attorney fees.

On April 18, 2005, the district court permitted the plaintiffs from the earlier action to intervene. The intervenors filed their Answer in Intervention that day, denying that the plaintiffs suffered any constitutional violations.4

In August 2005, the Board revised its policy, as well as the BCMS and BCHS student codes of conduct. Under the revised codes, anti-homosexual speech would not be prohibited unless it was "sufficiently severe or pervasive that it adversely affects a student's education or creates a climate of hostility or intimidation for that student, both from the perspective of an objective educator and from the perspective of the student at whom the harassment is directed." J.A. at 655 (2005-06 BCHS Code of Conduct at 40); accord J.A. at 642 (2005-06 BCMS Discipline Code at 16). Additionally, the BCHS Code of Conduct stated, "The civil exchange of opinions or debate does not constitute harassment. Students may not, however, engage in behavior that interferes with the rights of another student or materially...

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