Yesterday in Morrison v. Board of Education of Boyd County, (6th Cir., April 9, 2008), a 3-judge panel reversed itelf, issuing an amended opinion in a case it originally decided last October. (See prior posting.) In an unusual move, the panel decided to reconsider its prior ruling after defendants petitioned for an en banc rehearing. Also unusual, the deciding vote in granting the rehearing and changing the result was that of a district court judge sitting by designation on the Court of Appeals.
The case involved a challenge by a Christian high school student and his parents to the Boyd County (KY) High School's anti-harassment/ discrimination policy. 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. The majority, adopting the reasoning of the dissent in the original decision, held that since all that is at issue is nominal damages for a policy no longer in existence, plaintiffs lack standing. It concluded: "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."
Judge Moore dissenting reiterated the position taken in her former majority opinion. She argued that plaintiffs have standing and that their claim is not moot. She would remand the case for a determination of whether the school's policy would have had a chilling effect on a "person of ordinary firmness."
The AP yesterday reported on the decision, noting that both the ACLU and the Alliance Defense Fund had supported plaintiff in the case.
