Yesterday in Morrison v. Board of Education of Boyd County, (6th Cir., Oct. 26, 2007), the U.S. 6th Circuit Court of Appeals rejected mootness and standing challenges to a claim brought by Christian high school students and their parents who argued that Boyd County (KY) High School students’ First Amendment speech rights were “chilled” by the school’s anti-harassment/ discrimination policy. More specifically, plaintiffs alleged that the speech codes in effect during the 2004-05 school year (and later changed) prevented Christian students from expressing their views that homosexuality is sinful, and that the speech codes and related anti-harassment training undermined students’ ability to practice their Christian faith.
In a 2-1 decision, the majority held that “an allegation of a past chill of First Amendment-protected activity is sufficient to confer standing to a plaintiff seeking retrospective relief, even when that relief comes in the form of nominal damages…. [T]o establish such a claim, a plaintiff must show that the defendant’s actions or policy would deter a person of ordinary firmness from exercising his or her First Amendment liberties in the way that the plaintiff alleges he or she would have, were it not for the defendant’s conduct or policy.”
Judge Cook, dissenting, said: "'This is a case about nothing.' The majority burdens a federal district judge with a full-blown trial to determine whether to award the plaintiff a single dollar if a policy no longer in effect was unconstitutional despite never being enforced against the plaintiff.”
The appeal brought together unusual allies. Both the ACLU and the Alliance Defense Fund praised the 6th Circuit’s result. The AP reported on the decision. (See prior related posting.)
