Morrison v. Boyd Cnty Bd Ed

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0431p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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No. 06-5380

Plaintiffs-Appellants, -

TIMOTHY MORRISON et al.,

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Nos. 06-5380/5406/5407

v.

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BOARD OF EDUCATION OF BOYD COUNTY et al., -

Defendants-Appellees. -

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Nos. 06-5406/5407

Plaintiffs-Appellants (06-5406)/ -

TIMOTHY MORRISON et al.,

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Cross-Appellees, -

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v.

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Defendant-Appellee, --

BOARD OF EDUCATION OF BOYD COUNTY,

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Intervenors-Defendants-Appellees/ -

WILLIAM CARTER et al.,

Cross-Appellants (06-5407). -

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Appeal from the United States District Court

for the Eastern District of Kentucky at Ashland.

No. 05-00038—David L. Bunning, District Judge.

Argued: July 25, 2007

Decided and Filed: October 26, 2007

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

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COUNSEL

ARGUED: Joel L. Oster, ALLIANCE DEFENSE FUND, Leawood, Kansas, for Plaintiffs. Sharon

McGowan, AMERICAN CIVIL LIBERTIES UNION, New York, New York, Winter R. Huff, LAW

*

The Honorable John R. Adams, United States District Judge for the Northern District of Ohio, sitting by

designation.

1

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of Boyd County et al.

OFFICES OF JOHN G. PRATHER, Somerset, Kentucky, for Defendants. 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. Sharon

McGowan, Kenneth Y. Choe, AMERICAN CIVIL LIBERTIES UNION, New York, New York,

Winter R. Huff, LAW OFFICES OF JOHN G. PRATHER, Somerset, Kentucky, Kimberly S.

McCann, VAN ANTWERP, MONGE, JONES & EDWARDS, Ashland, Kentucky, David A.

Friedman, FERNANDEZ, FRIEDMAN, HAYNES & KOHN, Louisville, Kentucky, for Defendants.

MOORE, J., delivered the opinion of the court, in which ADAMS, D. J., joined. COOK, J.

(p. 12), delivered a separate dissenting opinion.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. Timothy Morrison (“Morrison”) was a student

at Boyd County High School (“BCHS”). He is a Christian, and he 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. Morrison did not want to be

punished, so he kept to himself his beliefs regarding homosexuality.

After Morrison filed this lawsuit, the Board of Education of Boyd County (“Board”) changed

the BCHS policy, but the litigation did not end. We must now decide whether Morrison’s claim for

nominal damages premised upon the “chill” on Morrison’s speech during the 2004-05 school year

presents a justiciable controversy. We conclude that it does and accordingly REVERSE the district

court’s grant of summary judgment to the school board on this claim. Because genuine issues of

material fact prevent us from determining the merits of Morrison’s free-speech claim, we REMAND

the case to the district court for further proceedings.

I. BACKGROUND

A. Factual Background

In 2002, some students at Boyd County High School (“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.

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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 of1

the ills of bullying and name-calling.2 The participants included a BCHS social studies teacher,

some students, an “ADL Facilitator,” 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

1

This teacher was also the “compliance coordinator” under the consent decree.

2

Although the record is unclear, it appears that “ADL” stands for “Anti-Defamation League.”

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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) (emphasis 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 their complaint in the United States District

Court for the Eastern District of Kentucky. They named the Boyd County Board of Education

(“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 (styled as the “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 speaking

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

had 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 and substantially disrupts the educational process.” J.A. at 655

(2005-06 BCHS Code of Conduct at 40).

After these revisions, the parties filed cross-motions for summary judgment. On February

17, 2006, the district court issued its opinion and judgment granting the Board’s motion and denying

both the plaintiffs’ and the intervenors’ motions. Noting the changes that had been made to the

3

The only plaintiff whose claim is relevant at this point of the litigation is Timothy Allen Morrison II

(“Morrison”). At the time the complaint was filed, Morrison was a student at BCHS. The other plaintiffs are his parents

Timothy and Mary Morrison, Brian Nolen, and Debora Jones. Both Nolen and Jones are parents of students who

attended Boyd County Middle School at some time relevant to this case.

4

Later, the intervenors changed their position and argued that the 2004-05 BCHS speech code was

unconstitutional.

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policies that were initially challenged, the district court indicated that it was “not inclined to adjudge

the constitutionality of policies no longer in effect,” and rejected all of the Plaintiffs’ challenges to

the written policies on this basis. J.A. at 672 (Dist. Ct. Mem. Op. at 7). Additionally, the district

court determined that the Plaintiffs’ claim for damages failed because “Plaintiffs were unable to

specify the measure and amount of their alleged damages.” J.A. at 680 (Dist. Ct. Mem. Op. at 15).

The district court further stated that “even their request for nominal damages remains unsupported

by any factual allegations,” and that “Plaintiffs have made no specific plea” for damages incurred

prior to the Board’s change in policies. Id.

After the district court entered a corrected judgment for reasons not relevant to this appeal,

both the plaintiffs and the intervenors timely appealed.

II. JURISDICTION

The district court had federal-question jurisdiction over this 42 U.S.C. § 1983 action. 28

U.S.C. § 1331. We have jurisdiction over the plaintiffs’ appeal from an adverse final judgment. Id.

§ 1291.

III. ANALYSIS

Our initial task is to determine exactly which claims are, and which are not, presented in this

appeal. First, the plaintiffs do not challenge the district court’s rejection of their free-exercise claim,

which we accordingly do not consider. Next, the district court concluded that once the school

district had revised its policy in a fashion acceptable to the plaintiffs and intervenors, the plaintiffs’

claims seeking forward-looking relief, i.e., declaratory and injunctive relief, became moot. The

plaintiffs do not challenge this conclusion on appeal, so we do not consider their claims seeking such

relief.

The plaintiffs, however, also pursued claims for damages, both nominal and compensatory.

On appeal, the plaintiffs pursue only their claim for nominal damages and seek to premise this claim

on Timothy Morrison’s (the BCHS student plaintiff’s) “chilled” speech during the 2004-05 school

year. Consequently, the only plaintiff who may have a live claim is Timothy Morrison.

Accordingly, Morrison’s free-speech claim seeking nominal damages is the only claim that we

consider on appeal.5

A. Justiciability

1. Mootness

The district court concluded that, because the school district had changed its policy, the case

was moot, notwithstanding Morrison’s claim for nominal damages. It offered two reasons for this

analysis: First, the district court said that the plaintiffs had never requested nominal damages

specifically for the period preceding the Board’s amendment of the offending policies. Second, the

5

The plaintiffs’ briefs also press their equal-protection and due-process claims, but the arguments offered in

support of their equal-protection theory are wholly duplicative of their free-speech arguments. The plaintiffs’ due-

process theory—that the 2004-05 speech code was unconstitutionally vague—similarly presents a First Amendment

argument under a different label. Indeed, the primary case that the plaintiffs’ brief cites in support of their due-process

argument, Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243 (3d Cir. 2002), analyzed the plaintiff’s

void-for-vagueness theory as a First Amendment argument. Id. at 266-67. Because the plaintiffs’ due-process and equal-

protection arguments are essentially First Amendment arguments masquerading as Fourteenth Amendment arguments,

we do not address them separately.

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district court said that the plaintiffs failed to substantiate the nominal-damages claim with factual

allegations.

We believe that the first reason is inaccurate, as the complaint clearly requests “an award of

actual and nominal damages in an amount deemed appropriate by” the district court. J.A. at 34

(Compl. at 14, ¶ d.). Because the offending policy was in effect when the plaintiffs filed their

complaint, their request for nominal damages could have addressed only the period preceding the

Board’s amendment.

The district court’s second reason misapprehends the nature of nominal damages. Nominal

damages are awarded when there is no proof of an actual injury. Carey v. Piphus, 435 U.S. 247,

266-67 (1978) (holding that district court has power to award nominal damages for a denial of

procedural due process when there is no proof of actual injury). As one of our out-of-circuit

colleagues recently recognized, nominal damages “do not purport to compensate for past wrongs.

They are symbolic only.” Utah Animal Rights Coal. v. Salt Lake City Coal., 371 F.3d 1248, 1264

(10th Cir. 2004) (McConnell, J., concurring). We have similarly recognized that nominal damages

are appropriate when a plaintiff proves a constitutional violation but lacks proof of an actual injury.

Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1352 (6th Cir. 1992) (procedural due-process

claim; citing Carey v. Piphus).

Moreover, because nominal damages are a symbolic remedy for past wrongs, a prayer for

nominal damages precludes a finding of mootness, even when the defendant has altered or

abandoned the allegedly unconstitutional policy forming the basis for the plaintiff’s complaint.

Murray v. Bd. of Trs., Univ. of Louisville, 659 F.2d 77, 79 (6th Cir. 1981) (remanding First

Amendment case to district court for adjudication of plaintiff’s nominal-damage claim); see also

Blau v. Ft. Thomas Pub. Sch. Dist., 401 F.3d 381, 387 (6th Cir. 2005) (“[T]he existence of a

damages claim ensures that this dispute is a live one . . . .”); id. at 387-88 (citing cases); Lynch v.

Leis, 382 F.3d 642, 646 n.2 (6th Cir. 2004) ("[A] claim for nominal damages . . . is normally

sufficient to establish standing, defeat mootness, and grant prevailing party status . . . ."); Utah

Animal Rights Coal., 371 F.3d at 1257-58 (following Tenth Circuit precedent holding that claim for

nominal damages is sufficient for justiciability); id. at 1268 (McConnell, J., concurring) (noting that

the Sixth Circuit as well as the Ninth Circuit holds that a nominal-damages claim precludes

mootness, but disagreeing with the rule); id. at 1275 (Henry, J., concurring) (“[T]he Supreme Court

has directly and indirectly indicated that a claim for nominal damages in a constitutional case may

vindicate rights that should be scrupulously observed, and hence, such a case is not, nor should it

be, moot.”). For these reasons, Morrison’s nominal-damages claim is not moot.

2. Morrison’s Standing

We next consider Morrison’s standing to bring his nominal-damages claim. The key

questions here are whether a past “chill” on a plaintiff’s speech is a sufficient injury to confer

standing and whether nominal damages sufficiently redress such a harm.

Generally, concerns regarding “chilled” speech are forward-looking. For example, the

doctrine of overbreadth constitutes an exception to prudential standing requirements and permits a

party with constitutional standing to raise First Amendment claims of third parties who are not

present, but whose speech may be chilled in the future if the regulation stands. Prime Media, Inc.

v. City of Brentwood, 485 F.3d 343, 349 (6th Cir. 2007); West v. Derby Unified Sch. Dist. No. 260,

206 F.3d 1358, 1367 (10th Cir. 2000). Similarly, a statute may be void for vagueness if it would

deter would-be speakers from speaking because they cannot tell whether their intended speech falls

within the statute’s prohibitions. See, e.g., Reno v. ACLU, 521 U.S. 844, 871-72 (1997) (“The

vagueness of [a content-based speech] regulation raises special First Amendment concerns because

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of its obvious chilling effect on free speech.”); Grayned v. City of Rockford, 408 U.S. 104, 109

(1972) (noting that a vague statute “operates to inhibit the exercise of [First Amendment] freedoms”

(citation omitted)). Here, however, Morrison focuses on a past chill, rather than a future chill,

arguing that he would have spoken during the 2004-05 school year, but that the speech code then

in effect prevented him from doing so.

To determine whether such a chill confers standing, we apply a three-part test. A plaintiff

has constitutional standing when he or she can show: (1) an injury-in-fact that; (2) was “fairly

traceable to the defendant’s allegedly unlawful conduct”; and (3) is “likely to be redressed” via a

favorable decision. Prime Media, 485 F.3d at 349 (quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992)). We consider these parts in turn.

a. Injury-In-Fact

The Supreme Court has defined an “injury-in-fact” as “an invasion of a legally protected

interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or

hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted). If a

prospective chilling effect on speech is sufficiently injurious that courts allow parties otherwise

without prudential standing to raise a claim designed to prevent this chill (via an overbreadth

challenge), then a past chill must constitute an injury in fact.

Case law supports this conclusion. Our sister circuits have held, both implicitly and

explicitly, that a past chill is a constitutional injury-in-fact. For instance, in White v. Lee, 227 F.3d

1214 (9th Cir. 2000), the Ninth Circuit held that government officials’ “eight-month investigation

into the plaintiffs’ [associational] activities and beliefs chilled the exercise of their First Amendment

rights,” which entitled the plaintiffs “to seek a remedy for this constitutional violation.” Id. at 1226.

Similarly, in National Commodity & Barter Ass’n v. Archer, 31 F.3d 1521 (10th Cir. 1994), the

Tenth Circuit held that an organizational plaintiff could premise a Bivens claim seeking damages

for a violation of First Amendment associational rights upon overzealous investigative procedures

that had a chilling effect on its members’ associational rights. Id. at 1530. The court implicitly

concluded that a chill represents an injury-in-fact, stating that the plaintiffs could “establish their

First Amendment claim” by “prov[ing] wrongful conduct by the defendant and that such conduct

had a chilling effect on the plaintiffs’ organizational activities and associational rights.” Id. at 1531

n.4.

Additionally, in Howard Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544 (5th Cir.

1988), the Fifth Circuit suggested, if not implicitly held, that chilled speech constitutes an injury-in-

fact. There, the court sustained an award of damages to compensate a plaintiff “for whatever

injuries [he] may have suffered to his reputation and from the chilling effect the TRO had on the

exercise of his First Amendment rights.” Id. at 557. And more recently, the Second Circuit joined

this chorus with its opinion in Husain v. Springer, --- F.3d ---, No. 04-5250-CV, 2007 WL 2020028

(2d Cir. July 13, 2007). In Husain, a group of college-student journalists sued, claiming that the

college president violated their First Amendment rights by nullifying the results of, and

rescheduling, a student-government election in response to a hyper-partisan issue of a college

newspaper. They sought nominal damages and premised this First Amendment claim upon chilled

speech, specifically, the paper’s subsequent reduction in election coverage out of fear that favorable

coverage would lead to the disqualification of a candidate. See id. at *6 (noting that “the College

Voice editors decided to give their endorsement of [a student party running the subsequent school

year] less prominence” as a result of the election nullification). Even though the results of the

nullified election and the subsequent election were identical, the court held that the “chilling effect”

upon the paper’s coverage “g[ave] rise to a First Amendment injury.” Id. at *14; see also id.

(concluding that the election nullification “violated the plaintiffs’ First Amendment rights as a result

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of the chill on student speech that it created”). Each of the aforementioned cases indicates that a

past chill of expressive conduct constitutes a constitutional injury-in-fact sufficient to confer

standing; to our knowledge, no circuit has concluded to the contrary.6

The only arguably contrary case we have located is Laird v. Tatum, 408 U.S. 1 (1972). In

Laird, a group of citizens brought a class action seeking declaratory and injunctive relief, arguing

that the Army’s investigative and data-gathering activities chilled their exercise of First Amendment

rights. The Supreme Court concluded that the plaintiffs had not alleged a sufficiently specific injury,

noting that a “subjective chill” cannot substitute for “specific present objective harm or a threat of

specific future harm.” Id. at 13-14.

We do not believe this concern regarding a “subjective chill” applies here, as Laird is easily

distinguishable. Most significantly, the Laird Court addressed only claims for forward-looking

relief, specifically declaratory and injunctive relief. In this case, by contrast, we consider only

Morrison’s claim for retrospective relief in the form of nominal damages. Accordingly, like the

plaintiffs in Husain and unlike the plaintiffs in Laird, “the threat or chill that [Morrison] assert[s that

he] felt . . . is not merely subjective, but has already been experienced.” Husain, 2007 WL 2020028

at *14 (internal quotation marks omitted).

Additionally, Laird was a narrow decision, and the Court took pains to cabin its holding to

the particular facts of that case, stating, “[O]ur conclusion is a narrow one, namely, that on this

record the respondents have not presented a case for resolution by the courts.” Laird, 408 U.S. at

15. Beyond the distinction noted above, this case is very different from Laird.

The Laird Court emphasized that it faced a case in which “the chilling effect ar[o]se merely

from the individual’s knowledge that a governmental agency was engaged in certain activities or

from the individual’s concomitant fear that, armed with the fruits of those activities, the agency

might in the future take some other and additional action detrimental to that individual.” Id. at 11.

To the contrary, in this case (as in a series of other “chilling” cases that the Laird Court

distinguished), “the challenged exercise of governmental power was regulatory, proscriptive, or

compulsory in nature, and the plaintiff was either presently or prospectively subject to the

regulations, proscriptions or compulsions that he [i]s challenging.” Id. at 11. More specifically,

Morrison challenges a rule that was intended to govern his speech and that of his cohorts, not data-

gathering activities. Consequently, this is not a case in which the plaintiff has “left somewhat

unclear the precise connection between” the action or policy complained of and the chill alleged,

as was the case in Laird. Id. at 13 n.7. The Laird Court’s concern regarding a significant

attenuation between the action or policy complained of and the chill alleged does not apply here.

See infra Pt. III.A.2.(b). Moreover, the Laird Court was also motivated by its desire to avoid the

federal courts becoming “virtually continuing monitors of the wisdom and soundness of Executive

action.” Id. at 15. This case presents no such threat.

For the foregoing reasons, we conclude that Laird does not control, and therefore we follow

the lead of the Second, Fifth, Ninth, and Tenth Circuits (in Husain, Howard Gault Co., White, and

Archer, respectively). Accordingly, we hold that chilled speech constitutes a sufficient injury-in-fact

to satisfy the first part of the test for standing.

6

In the Fourth Circuit, Judge Michael argued persuasively in dissent that previously chilled speech presents

“a classic First Amendment injury.” Reyes v. City of Lynchburg, 300 F.3d 449, 458 (4th Cir. 2002) (Michael, J.,

dissenting). The majority opinion neither quibbled with nor endorsed this view, but instead concluded that the plaintiff

failed to show that the defendant city’s decision to prosecute him had chilled his speech. Id. at 455 n.8.

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b. Causation

Morrison easily satisfies the causation part of the standing inquiry. The Complaint alleges

that “[t]he named student plaintiff has refrained from conveying his views on homosexuality to his

classmates because the School District policies restricting speech prohibit him from doing so.” J.A.

at 26 (Compl. ¶ 34). Further, Morrison testified through affidavit that he held his tongue because

of the policy. This testimony is uncontroverted.

c. Redressability

Finally, we conclude that Morrison satisfies the third part—redressability—of the standing

inquiry. Although a favorable decision cannot provide Morrison an opportunity to travel back in

time and utter the speech he withheld, it can provide him with nominal damages. Even though these

damages amount to little, they serve to vindicate his rights.

Utah Animal Rights Coalition implicitly holds that nominal damages are sufficient to redress

an injury similar to Morrison’s. In that case, prospective organizers applied for permits to

demonstrate on public property during the 2002 Winter Olympics. After the city delayed acting on

their application, they sued. While the suit was pending, the city denied their application. They

reapplied, and the city then approved this subsequent application, but the litigation did not terminate.

After the Olympics had ended, the organizers continued to pursue their suit, premising a claim for

nominal damages upon the city’s initial delay. Their asserted injury was akin to Morrison’s chilled

speech: a hampered ability to plan and coordinate their expressive activities. 371 F.3d at 1256. On

appeal, the Tenth 7Circuit concluded that the organizers had standing to pursue their nominal-

damages claim. Id. If nominal damages were sufficient to redress the hampering of the organizers’

speech activities, then they are also sufficient to redress Morrison’s chilled speech.

Along the same lines, Husain indicates that a claim for nominal damages is sufficient to

redress previously chilled speech. By the time the case reached the Second Circuit, the plaintiffs’

claims for injunctive and declaratory relief had become moot, leaving only their claims for nominal

compensatory and punitive damages pending. Husain, 2007 WL 2020028 at *8 n.10, *21 n.17.

Nonetheless, the Husain court held that the college’s nullifying the results of a student-government

election in response to articles written in a college-sponsored and student-run newspaper chilled the

student journalists’ speech and accordingly violated their First Amendment rights. As in Utah

Animal Rights Coalition, if the Husain plaintiffs’ nominal-damages claim was sufficient to redress

their chilled speech, then so, too, is Morrison’s. Accordingly, Morrison has established the third part

of the standing inquiry.

For these reasons, we conclude that Morrison has standing to pursue his free-speech claim

seeking nominal damages.

B. Merits

The Board asks us to affirm the district court’s grant of summary judgment on the merits,

arguing that the policies in effect during the 2004-05 school year were consistent with the standard

set out in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). At

the same time, Morrison asks us to grant him summary judgment on his nominal damages claim

7

Judge McConnell issued a lengthy concurrence disagreeing with the rule that nominal damages are sufficient

to thwart a challenge for mootness. Utah Animal Rights Coal., 371 F.3d at 1262-71. Despite his position that nominal

damages were “not the real objective of the litigation,” id. at 1264, and “symbolic only,” id., Judge McConnell never

questioned whether nominal damages were sufficient to satisfy the redressability prong of the standing inquiry.

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because his affidavit testimony that he withheld his speech because of the policy was uncontradicted,

and because the policy, he claims, fails to comport with Tinker. We decline both parties’ entreaties

and instead REVERSE the district court’s judgment insofar as it pertains to Morrison’s free-speech

claim seeking nominal damages, and REMAND for further proceedings. We do so for two reasons.

First, there remains a genuine issue of material fact regarding the policy applicable to

Morrison during the 2004-05 school year. The Board contends that Morrison could not have been

disciplined because the school district’s speech policy contained a savings clause preventing it from

“apply[ing] to speech otherwise protected under the state or federal constitutions . . . .” J.A. at 120

(2004-05 Sch. Dist. Policy 09.42811). The BCHS Code, by contrast, contains no such savings

clause in either of its definitions of harassment. The first definition restricted harassment to

“unlawful behavior based on” a protected characteristic, including 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.” J.A. at 270 (2004-05 BCHS Student Code

at 3). This definition tacks quite closely to the Tinker standard. See Tinker, 393 U.S. at 513

(holding that schools cannot restrict student speech that neither “materially and substantially

interfer[es] with the requirements of appropriate discipline in the operation of the school” nor

“collid[es] with the rights of others”). The other definition, by contrast, does not. Under the heading

“DISCIPLINARY INFRACTIONS,” the 2004-05 BCHS Code defined harassment to include “the

use of language . . . 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 (2004-05

BCHS Student Code at 16). Immediately following this definition, the BCHS Code listed a series

of consequences for violating the prohibition on harassment, which could be read as implying that

this represents the operative definition of harassment.

If these inconsistencies were not enough, it is also unclear to what extent the statements in

the training video represented the school’s policy. The video’s prohibition appears to have been

even broader than the latter definition of harassment in the Student Code, as the video informed

students that “[t]here is not permission for you to point . . . out” areas in which they disagree with

other students. J.A. at 229 (BCHS Training Video Tr. at 29). Because the district court did not

address the merits of Morrison’s free-speech claim, it did not have occasion to determine which

policy governed Morrison’s conduct at school during the 2004-05 academic year. We decline to

address this issue in the first instance, concluding that the more prudent course of action is to remand

the case to the district court for appropriate factual development.

Second, even if we were certain that the policy violated Tinker, we do not believe this alone

would be sufficient for Morrison to establish a First Amendment claim premised entirely upon a past

chill. Such a holding would permit anyone who had, at one time, operated under an unconstitutional

speech policy to sue (within the applicable statute of limitations) and win merely by filing an

affidavit claiming that the policy prevented him or her from saying something that he or she wished

to say. This would be so even if the speech policy were no longer in existence. The problem with

such a scenario is that, because the potential plaintiff never spoke and the regulation in question was

never affirmatively applied against him or her, courts would be unable to tell whether the plaintiff

actually suffered the alleged harm, i.e., the past chill. Rather than allowing a plaintiff to premise

such a claim on purely subjective allegations, we believe that a more objective inquiry is also

necessary.

We find support for such a requirement in our case law, specifically in our jurisprudence

regarding First Amendment retaliation claims. Plaintiffs alleging such claims must prove that “an

adverse action was taken against the plaintiff that would deter a person of ordinary firmness from

continuing to engage in [First Amendment-protected] conduct.” Thaddeus-X v. Blatter, 175 F.3d

378, 394 (6th Cir. 1999) (en banc). This element introduces an objective component into the First

Nos. 06-5380/5406/5407 Morrison et al. v. Bd. of Educ. Page 11

of Boyd County et al.

Amendment inquiry by requiring that the adverse action “would deter a person of ordinary firmness

from” exercising First Amendment rights. Along these lines, we hold that when a plaintiff seeks to

prove under the First Amendment a damages claim premised upon a past chill, he or she must

establish that the policy or action of the defendant would deter a person of ordinary firmness from

exercising his or her First Amendment rights in the way the plaintiff alleges he or she would have,

but for the defendant’s action or policy.8 We are not alone in this holding, as the Ninth Circuit

requires plaintiffs in similar cases to establish this element. See White v. Lee, 227 F.3d 1214, 1228

(9th Cir. 2000).

As the parties have not had occasion to address this element, we do not do so either, but

instead leave it for the district court to do so on remand.

IV. CONCLUSION

For the reasons described above, we hold 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. We further hold that to

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.

Consequently, we REVERSE the district court’s grant of summary judgment to the Board, but only

insofar as it pertains to Morrison’s free-speech claim seeking nominal damages. We also REMAND

this case to the district court for further proceedings consistent with this opinion.

8

Additionally, such a requirement should allay any concern regarding a past chill’s failing to allege a “specific

present objective harm or a threat of specific future harm” under Laird. 408 U.S. at at 13-14.

Nos. 06-5380/5406/5407 Morrison et al. v. Bd. of Educ. Page 12

of Boyd County et al.

_______________

DISSENT

_______________

COOK, Circuit Judge, dissenting. “This is a case about nothing.”1 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. I cannot join an opinion that calls for such an exercise.

I note at the outset that the defendant here is the school district. It is not the high school code

of conduct, the high school, or any particular administrator. I note further that the plaintiff in this

case chose caution and remained silent rather than risk discipline for engaging in protected activity.

As much as he (and the attorneys driving this litigation) might wish to keep the facial challenge to

the 2004-05 code of conduct alive, the fact remains that they have already won that challenge when

they forced the district, under court supervision, to change its policy. All that remains is an as-

applied pre-enforcement challenge for nominal damages based on Morrison’s choice to chill his own

speech based on his perception that he would be disciplined for speaking.

But whether he would have been, we can only speculate. And to avoid allowing standing

based on guesswork, we require an imminent threat of prosecution and an actual intention to violate

the policy at issue. See, e.g., Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002); NRA of Am. v.

Magaw, 132 F.3d 272, 285 (6th Cir. 1997). But the school district’s—again, the actual defendant

here—former discipline policy regarding instances of harassment or discrimination states that it

“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.” I see no evidence in the record that the school district would have punished him for

protected speech in violation of its own policy. We cannot find a school district constitutionally

liable for chilling student speech every time a student chooses caution over risking possible

discipline.

Nor do I see how nominal damages would redress an injury of “past chill.” Nominal

damages is, as Morrison’s counsel discussed at oral argument, a vehicle for a declaratory judgment.

See Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1265 (10th Cir. 2004)

(McConnell, J., concurring). While we may have allowed a nominal-damage claim to go forward

in an otherwise-moot case, see Murray v. Bd. of Trs., 659 F.2d 77, 79 (6th Cir. 1981), we are not

required to relax the basic standing requirement that the relief sought must redress the injury that

occurred. And nominal damages based on a regime no longer in existence has no effect on the

parties’ legal rights. See Utah Animal Rights Coal., 371 F.3d at 1264.

This case should be over. The school district has, at the behest of the plaintiffs and

intervenors, adopted a policy that properly balances the district’s duty to protect openly gay and

lesbian students with the important First Amendment right of allowing students to speak their minds.

Keeping this case alive for a determination on the constitutionality of an obsolete code of conduct

in the hope of awarding the plaintiff a single dollar vindicates no interest and trivializes the

important business of the federal courts in protecting actual constitutional violations. My colleagues

on the panel having seen the matter differently, I respectfully dissent.

1

Husain v. Springer, No. 04-5250, 2007 U.S. App. LEXIS 16701, at *71 (2d Cir. July 13, 2007) (Jacobs, C.J.,

dissenting).