*3 I. ADAMS, Judgе.* BACKGROUND District Judges; Background A. Factual MOORE, J., opinion delivered Boyd County In some students at D.J., court, ADAMS, joined. in which (“BCHS”) High petitioned School to start 507-08), COOK, separate (p. delivered J. Gay Straight Alliance chapter dissenting opinion. (“GSA”). Boyd County High Gay Sch. Straight Boyd Alliance v. Bd. Educ. OPINION County, (E.D.Ky. F.Supp.2d 2003). Their efforts were met with hostili MOORE, Circuit KAREN NELSON very ty, surprising given which was not Judge. history students’ of intolerance to BCHS *4 (“Morrison”) was a Timothy homosexuality. Id. at 670-74. To ward Boyd County High hostility, School quell student within two months of (“BCHS”). Christian, GSA, He is a and he be- approving the the school banned the GSA, homosexuality that is a sin. He purported lieves as well as to ban all other part responsi- that of his organizations further believes student the 2002-03 bility is to tell others when year. as Christian school Id. at 675. comport does not with his
their conduct response, group In of students who understanding morality. Dur- Christian attempted spearhead chap- had to the GSA year, academic BCHS had ing the 2004-05 parents ter and their sued the school dis- policy prohibiting a written students from trict in federal court. After the district making stigmatizing insulting or comments preliminary injunction court issued a re- orien- regarding another student’s sexual give to the GSA quiring school board pun- tation. Morrison did not want to be that other chapter equal access to afforded ished, kept so he to himself his beliefs groups, student id. at the suit ended regarding homosexuality. provision in a consent decree. One the school district required consent decree lawsuit, After Morrison filed this adopt policies prohibiting to harassment Boyd County Board of Education of perceived the basis of actual or sexual (“Board”) policy, but changed the BCHS orientation, provide mandatory and to anti- now litigation did not end. We must training to all students. harassment claim for nomi- decide whether Morrison’s in at- year, Prior to the 2004-05 school damages premised upon nal the “chill” on de- tempting comply with the consent speech during Morrison’s the 2004-05 cree, Policy adopted the school district justiciable contro- year presents school anti-harass- 09.42811 as the district-wide it ac- versy. We conclude that does and prohibited policy. Policy ment 09.42811 cordingly REVERSE the district court’s “Harassmeni/Discrimination,” which de- grаnt summary judgment to the school fined as genuine board on this claim. Because is- race, color, de- unlawful behavior based on prevent
sues of material fact us from sex[,] actu- termining origin, age,'religion, merits of Morrison’s free- national claim, perceived REMAND al sexual orientation or speech the case to or gender identity, disability or that is suf- proceedings. the district court for further * Adams, Ohio, by designation. sitting The Honorable John R. United States Judge District of District for the Northern severe, objectively way way. or is correct all pervasive, and our We
ficiently adversely that it affects a stu- want to believe that we have offensive evidence or creates a hostile or way way.... dent’s education that our is the correct environment. educational abusive you go, ... no matter where no “So in this shall not provisions be do, you you matter what no matter who other- interpreted applying meet, you going people are to find protected the state or federal wise under you going don’t like. You’re to find constitutions where the does not you people disagree with. You’re materially substantially dis- otherwise going people you to find don’t like rupt process.... the educational avoided, way they act. It can’t be (“J.A.”) Appendix at 120. Joint BCHS’s not, world, anywhere not it can’t repeated 2004-05 Code of Conduct going people be avoided. You’re to find 09.42811, paragraph Policy first J.A. аt you absolutely wrong. believe are (BCHS 3) Code at but later stated: think[, going they You’re are W]hat intimi- Harassment/discrimination That, thinking? wrong, that is so it[’]s by physical dation threats of or actual everybody!).” obvious to B]ut violence; the creation whatever they you them. Because believe are means, *5 hostility of a climate of or intimi- wrong. meeting people You can’t avoid dation, conduct, or the of language, use you that wrong. believe are But here is symbols or in such manner as to be kicker, believe, just you just the because hatred, commonly convey understood to them, you just because don’t like be- contempt, prejudice or or to have the them, you disagree just cause with be- effect insulting stigmatizing оf or an in- you they wrong, cause believe are whole dividual. heartedly, absolutely, they wrong. are (BCHS 16). J.A. at 277 at Code you Just because believe that does Additionally, give you permission say the school district created anything training Boyd County two for require you videos—one about it. It doesn’t that do (“BCMS”) Middle School and one for anything. just respect, you just You BCHS—-to fulfill exist, continue, anti-harassment you you it leave alone. training provisions of the consent decree. permission There you point is not here, high training As relevant school it out to them. lengthy video included a of discussion (BCHS Training J.A. at 229 Tr. at Video bullying calling. ills of and name— added). 29) (emphasis participants included a BCHS social stud- teacher,1 students, ies some an “ADL Fа- policies mandatory The new and the cilitator,” psychologist. and a clinical training sparked acrimony Boyd further in Additionally, training con- time, BCHS video County. parents This some feared passage tained a discussing sexual orienta- that training discourage, would and the tion. passage, Near the end of this policies prohibit, would their children from stated, clinical psychologist speaking religious about their beliefs re- homosexuality. .... all get garding parents We self-centered and start Some way way to think that right our is the withheld their children from mandato- unclear, "compliance Although 1. This appears teacher was also the coor- the record is it "ADL” stands for “Anti-Defamation dinator" under consent dеcree. League.” adversely ly pervasive severe or Eventually, group par- of training. ry affects a student’s education or creates sued. ents students hostility climate of or intimidation for Background B. Procedural student, perspective both from the of an objective perspec- and from the educator 15, 2005, February group plain- On at harass- tive of the student whom the in the United complaint filed their tiffs3 (2005-06 is directed.” J.A. at 655 ment the Eastern Dis- Court for States District 40); at accord J.A. BCHS Code Conduct Boyd Kentucky. They named the trict of (2005-06 at Discipline at 642 BCMS Code (“Board”) Education County Board of 16). Additionally, the BCHS Code of Con- un- pursued claims the sole defendant stated, exchange opin- duct “The civil § of vari- 1983 for violations der U.S.C. does not constitute harass- ions or debate rights, specifically, ous constitutional not, however, engage ment. Students (styled as the free rights rights that interferes with the behavior ACTION”), pro- OF due “FIRST CAUSE materially and sub- of another student (second action), protec- equal cause of cess stantially disrupts pro- the educational (third action), cause of and free exer- tion (2005-06 at action). cess.” J.A. BCHS Code (fourth religion cause cise of Conduct plaintiffs’ complaint is that The crux of the during in effect the 2004- codes revisions, parties filed After these Boyd year prevented school students summary judgment. cross-motions On County speaking from their convictions 17, 2006, February the district court issued sinful, homosexuality and the oрinion judgment granting training together under- speech codes and denying motion and both the Board’s practice their ability mined their Chris- intervenors’ motions. plaintiffs’ and the *6 violations, tian faith. For these asserted changes that had made to Noting the been relief, declaratory in- plaintiffs sought the initially challenged, that were policies the relief,
junctive
damages,
actual
nominal
“not
the district court indicated that was
costs,
attorney
damages,
fees.
constitutionality
the
adjudge
inclined to
18, 2005,
per-
April
On
the district court
effect,”
rejected
longer in
policies no
action
plaintiffs
mitted the
from the earlier
challenges
Plaintiffs’
to the writ-
all of the
The intervenors filed their
to intervene.
at 672
policies on this basis.
J.A.
ten
day, denying
that
Answer
Intervention
7).
(Dist.
Additionally,
Op. at
Ct. Mem.
any
plaintiffs
that the
had suffered
consti-
the
the district court determined
violations.4
tutional
damages
claim
failed because
Plaintiffs’
for
specify
its
“Plaintiffs were unable
August
In
the Board revised
alleged
amount
their
dam-
measure and
policy, as well as the BCMS and BCHS
(Dist.
atOp.
at
Mem.
ages.”
the re-
J.A.
Ct.
student codes of conduct. Under
court further stated
codes,
The district
anti-homosexual
would
vised
damages
request
their
for nominal
unless it was “suffieient-
“even
prohibited
not be
Boyd Coun-
only plaintiff
parents
at
of students who attended
3. The
whose claim is relevant
this
ty
at some time relevant to
Timothy
Middle School
point
litigation is
Allen
this
("Morrison”).
case.
At the time the
Morrison II
filed,
complaint
was a student
was
Later,
changed
posi-
plaintiffs
parents
other
are his
4.
the intervenors
at BCHS. The
Morrison,
Nolen,
argued
the 2004-05 BCHS
Timothy
Mary
tion and
Brian
speech code was unconstitutional.
Both Nolen and Jones are
and Debora Jones.
by any factual
unsupported
allega-
premise
Timothy
and seek to
this claim on
remains
(the
tions,”
“Plaintiffs have made no Morrison’s
plaintiffs)
and that
BCHS student
plea”
damages
prior
speech during
incurred
“chilled”
the 2004-05 school
specific
change
policies.
year. Consequently,
only
Id.
Board’s
who
Timothy
have a live claim is
Morrison.
court entered a cor-
After the district
Accordingly,
free-speech
Morrison’s
claim
for reasons not relevant
judgment
rected
seeking
damages
only
nominal
claim
is the
appeal,
plaintiffs
to this
both the
and the
that we
appeal.5
consider on
timely appealed.
intervenors
Justiciability
A.
II.
JURISDICTION
1. Mootness
federal-question
had
The district court
that,
§
The district court concluded
jurisdiction
this 42
ac-
over
U.S.C.
because
jurisdic-
changed
§
the school district had
tion. 28
1331. We have
U.S.C.
moot,
policy,
notwithstanding
the case was
plaintiffs’ appeal
tion over the
from an
damages.
§
Morrison’s
for nominal
It
judgment.
adverse final
Id.
offered two
analysis:
reasons
First,
plain
the district court
said
III. ANALYSIS
tiffs
requested
damages
had never
exactly
Our initial task is to determine
specifically
period preceding
for the
not,
are,
pre-
which claims
and which are
Board’s
offending poli
amendment of the
First,
appeal.
plaintiffs
sented in this
Second,
cies.
the district court said that
challenge
rejec-
do not
the district court’s
plaintiffs
failed to substantiate the
claim,
tion
their free-exercise
which we
nominal-damages claim
allega
with factual
Next,
accordingly do not consider.
tions.
district court concluded that once the
We believe that the first reason is inac-
school district had revised its
in a
curate,
complaint clearly
as the
requests
acceptable
fashion
to the
and in-
“an
damages
award of actual and nominal
tervenors,
seeking
claims
in an
by”
amount deemed appropriate
relief, i.e.,
forward-looking
declaratory and
district
(Compl.
court.
J.A. at 34
relief,
injunctive
plain-
became moot. The
¶ d.). Because
offending policy
was in
challenge
tiffs do not
this conclusion on
*7
effect
plaintiffs
when the
filed their com-
appeal, so we do not consider their claims
plaint, their request
damages
for nominal
seeking such relief.
could have
only
period pre-
addressed
however,
plaintiffs,
pursued
The
also
ceding the Board’s amendment.
damages,
claims for
both nominal and com-
pensatory.
appeal,
plaintiffs pur-
On
The district court’s second rea
only
sue
claim for
damages
misapprehends
them
nominal
son
the nature of nominal
plaintiffs’
press
equal-
5. The
due-process
argument,
briefs also
their
their
Sypniewski v.
claims,
Education,
protection
due-process
Regional
and
but
Warren Hills
Board of
(3d Cir.2002),
arguments
support
equal-
offered in
of
analyzed
their
501 nominal-damages a awarded Circuit holds damages are damages. Nominal mootness, injury. disagreeing of an actual but proof precludes is no when there 266-67, 247, J., rule); 98 (Henry, 435 U.S. id. at 1275 Carey Piphus, v. with the (1978) (“[T]he 1042, (holding 252 55 L.Ed.2d has di- concurring) Supreme S.Ct. Court to award power court has that district rectly indirectly indicated that a claim procedur- for a denial of damages nominal in a constitutional damages for nominal proof no when there is process al due may rights vindicate that should be case of our out-of-circuit injury). actual As one hence, observed, and such a scrupulously recently recognized, nominal colleagues moot.”). be, not, nor should it For case is compensate damages purport “do not reasons, Morrison’s nominal-dam- these only.” They symbolic are past wrongs. for ages claim is not moot. v. Lake Rights Animal Coal. Salt Utah (10th 1248, Coal., Cir. City 371 F.3d 1264 Standing 2. Morrison’s
2004) (McConnell, J., concurring). We standing next consider Morrison’s We that nominal similarly recognized have bring nominal-damages his claim. The appropriate when a damages are key past are whether a questions here violation but lacks proves a constitutional is a plaintiffs speech “chill” on a sufficient v. injury. of an actual Sutton Cleve proof (6th 1339, 1352 injury standing to confer whether of Educ., F.2d land Bd. 958 Cir.1992) claim; damages sufficiently redress such (procedural due-process citing Carey Piphus). v. a harm. Moreover, damages are because nominal Generally, regаrding concerns a symbolic remedy past wrongs, forward-looking. are For “chilled” nominal damages precludes a
prayer for
con
example, the doctrine of overbreadth
mootness, even when the defen-
finding of
stand
exception
prudential
an
stitutes
alleged-
dant has altered
abandoned
party
with
ing requirements
permits
ly
policy forming the basis
unconstitutional
standing to raise First
constitutional
plaintiffs complaint. Murray
v.
parties
Amendment claims of third
who
Trs.,
Louisville,
F.2d
Bd.
659
Univ.
speech may be
present,
are not
but whose
(6th Cir.1981)
77,
(remanding
79
First
regulation
in the future if the
chilled
adju
court for
Amendment case to district
Media,
City
v.
Prime
Inc.
stands.
nominal-damage
dication of
(6th
Brentwood,
343,
F.3d
Cir.
claim);
Pub.
see
Blau v. Ft. Thomas
also
2007);
Derby
Sch. Dist.
West v.
(6th Cir.2005)
Dist.,
381,
Unified
401 F.3d
Sch.
Cir.
No.
206 F.3d
(“[T]he
damages
of a
claim en
existence
Similarly, a statute
be void for
”);
one ....
dispute
sures that this
live
if it would deter would-be
vagueness
Leis,
cases);
(citing
Lynch
id. at 387-88
they can
speaking
from
because
speakers
(6th Cir.2004) (“[A]
646 n.
382 F.3d
*8
falls
speech
their intended
not tell whether
normally
...
damages
claim for nominal
is
See, e.g.,
prohibitions.
within the statute’s
standing,
to establish
defeat
sufficient
ACLU,
844, 871-72, 117
Reno v.
521 U.S.
mootness,
party sta-
grant prevailing
(“The
(1997)
2329,
Coal.,
L.Ed.2d 874
S.Ct.
”);
Rights
Animal
tus....
Utah
reg
speech]
vagueness content-based
[a
(following
at 1257-58
Tenth Circuit
F.3d
First Amendment
special
ulation raises
precedent holding that claim for
chilling
concerns because of its obvious
justiciability);
id.
damages is sufficient for
City
(McConnell, J.,
speech.”); Grayned v.
conсurring) (noting
effect on free
at 1268
104, 109, 92 S.Ct.
Rockford,
Ninth
408 U.S.
that the
Circuit well as the
Sixth
(1972)
(noting
L.Ed.2d
that a
rights,”
Amendment
which entitled the
“operates to
vague
plaintiffs
statute
inhibit the exer
remedy
“to seek a
for this consti-
(cita
cise of
freedoms”
[First Amendment]
tutional
Similarly,
violation.” Id.
omitted)). Here, however,
tion
in National Commodity & Barter Ass’n v.
chill,
past
Archer,
focuses on a
rather than a future
Cir.1994),
503
in
retrospective
claim for
relief
that “the Morrison’s
(noting
494 F.3d at
See id.
According-
damages.
the form of nominal
give
decided
College Voice editors
in
plaintiffs Husain and unlike
running
ly, like the
party
student
of [a
endorsement
Laird,
in
“the threat or chill
plaintiffs
year]
promi-
less
subsequent school
...
felt
assert[s
he]
nullifica-
that [Morrison]
a
of the election
nence” as
result
merely subjective,
already
but has
tion).
nul- not
the results of the
though
Even
Husain, 494
at
experienced.”
F.3d
subsequent election been
and the
lified election
omitted).
(internal quotation marks
identical,
held that
the court
were
paper’s coverage
“chilling
upon
effect”
Additionally, Laird was a narrow deci-
injury.”
Amendment
“g[ave] rise to a First
sion,
pains
took
to cabin its
Court
128;
(concluding that the
Id. at
see also id.
case,
particular facts of that
holding to the
plain-
“violated the
nullification
election
one,
a narrow
stating,
conclusion is
“[0]ur
as a result
rights
Amendment
tiffs’ First
respon-
namely, that on this record
it creat-
speech that
of the chill on student
presented
have not
a case for resolu-
dents
ed”).
of the aforementioned cases
Each
Laird,
15,
by
courts.”
408 U.S. at
tion
expressive
chill of
past
indicates thаt a
Beyond the distinction not-
505
disciplined
com-
not have been
because
nominal
could
only their claims for
leaving
policy
district’s
con-
damages pending.
speech
the school
punitive
and
pensatory
savings
it from
Husain,
preventing
n. 17.
tained a
clause
F.3d at 121 n.
135
Nonetheless,
speech
protected
otherwise
“applying]
the Husain court held
of a
the state or
federal
constitu-
nullifying the results
under
college’s
thе
”
(2004-05
at
....
J.A.
Sch. Dist.
response
election in
tions
student-government
09.42811).
Code,
Policy
college-sponsored
in a
BCHS
written
articles
contrast,
in
savings
contains no
clause
newspaper chilled the student
such
student-run
of harassment.
journalists’
accordingly
violat-
either of
definitions
speech
in
rights. As
The first definition restricted harassment
ed their First Amendment
Coalition,
Rights
protect-
if the Hu-
to “unlawful behavior based on” a
Animal
Utah
characteristic, including
claim was
sexual orienta-
nominal-damages
ed
sain
tion,
severe,
sufficiently
pervasive,
“that is
speech,
to redress their chilled
sufficient
so, too,
adversely
it
Accordingly,
objectively
is
or
offensive that
then
Morrison’s.
part
third
of
affects a student’s education or creаtes
has established the
Morrison
abusive
environ-
standing inquiry.
hostile or
educational
(2004-05
ment.” J.A. at
BCHS Stu-
reasons,
conclude that
For
these
tacks
at
This definition
dent Code
standing
his free-
pursue
has
Morrison
closely to the
See
quite
Tinker standard.
seeking
damages.
claim
nominal
(hold-
Tinker,
at
393 U.S.
Second, even if we were certain the her rights his or First Amendment in the Tinker, policy violated we do not believe plaintiff way alleges the he or she would this alone would be sufficient for Morrison have, but for the defendant’s action or to establish claim a First Amendment policy. in holding, We are not alone this entirely upon past a chill. Such premised requires Ninth in as the Circuit had, holding anyone pеrmit a would who similar cases to establish this element. time, under an operated one unconstitu- Lee, See White 227 F.3d (within speech ap- tional to policy sue Cir.2000). limitations) plicable and win statute merely by claiming filing an affidavit parties not As have had to occasion policy say- him prevented or her from element, address we do not so do ing something he or to she wished either, but it instead leave for the district say. speech This would so even if the be court do so on remand. longer in
policy were no existence. The that, a problem with such scenario is be- IV. CONCLUSION plaintiff spoke cause the potential never above, For reasons described we in regulation question and the was never thаt an allegation past hold a chill of her, affirmatively applied against him or Amendment-protected activity First is suf- courts would be unable tell whether the standing ficient to confer plaintiff to a plaintiff actually alleged suffered the relief, seeking retrospective even when harm, i.e., past chill. Rather than that relief comes in form of nominal allowing premise a a claim plaintiff such damages. We further hold that to estab- purely subjective allegations, we believe claim, lish such must show that objective inquiry that more is also neces- defendant’s actions or would sary. person ordinary deter a firmness from such a support exercising We find for his or her First Amendment requirement law, specifically case in way plaintiff alleg- our liberties that the jurisprudence have, our regarding First Amend or es he she would were it ment alleging retaliation policy. claims. Plaintiffs the defendant’s or conduct Conse- such prove quently, claims must that “an adverse REVERSE district court’s Board, discipline actual defendant here —former summary judgment to grant policy regarding instances of harassment to Morri- as only pertains insofar but that it “shall not or discrimination states seeking free-speech son’s other- interpreted applying be case to REMAND this We also damages. protected under the state or federal wise proceedings court further the district where does not constitutions opinion. with this consistent materially substantially dis- otherwise process.” I see no rupt the educational COOK, dissenting. Judge, Circuit in the record that the school dis- evidence nothing.”1 a case about “This is *13 protect- him punished trict would have for judge a district majority burdens federal policy. in violation its own speech ed of trial wheth- a full-blown to determine with a cannot find school district constitu- We if a dollar plaintiff single the er to award tionally chilling liable for student in unconstitu- longer no effect was policy every a student caution over time chooses against despite being never enforced tional discipline. risking possible join opinion I cannot an plaintiff. damages do I see how nominal Nor an calls for such exercise. “past an chill.” injury wоuld redress of the defendant I note at the outset that is, damages counsel Nominal Morrison’s It not the is the school district. is here for a argument, at oral a vehicle discussed conduct, high code of high school declaratory judgment. Animal See Utah I school, any particular administrator. Corp., 371 Rights City Coal. v. Salt Lake case that the in this plaintiff note further (10th Cir.2004) (McCon- 1248, 1265 F.3d silent rather chose caution remained J., nell, concurring). we have While discipline engaging pro- than risk go for- nominal-damage allowed a (and As he activity. much as tected case, Mur- in an otherwise-moot see ward might attorneys driving litigation) (6th Trs., 77, F.2d 79 ray v. Bd. 659 of to the keep challenge the facial wish to Cir.1981), required we are not to relax alive, the fact code of conduct 2004-05 standing requirement that the relief basic won that they already have remains injury that oc- sought must redress the district, they challenge when forced based on a damages curred. And nominal supervision, change poli- under court longer in has no effect regime no existence pre- as-applied All that remains an cy. legal See Utah parties’ rights. on the dam- challenge for nominal enforcement Coal., F.3d at 1264. Rights Animal 371 chill his on choice to ages based Morrison’s should be The school This case over. on perception based his own has, at the behest of the district disciplined speaking. be he would intervenors, adopted policy been, we can But whethеr he would have duty to balances the district’s properly allowing And only speculate. to avoid students openly gay and protect lesbian guesswork, require on standing based right important First Amendment with of and an prosecution an imminent threat their minds. allowing speak students actual intention violate the alive Keeping this case for a determination See, constitutionality code e.g., Ashcroft, 298 an obsolete issue. Norton v. on the (6th Cir.2002); hope awarding Am. NRA F.3d of conduct dollar no inter- single F.3d Cir. vindicates Magaw, v. business again, important est and trivializes But the school district’s— C.J., (2d Cir.2007) (Jacobs, dissenting). Springer, Husain v. 494 F.3d courts in actual protecting of the federal My colleagues violations.
constitutional having seen the matter panel different-
ly, respectfully I dissent. America,
UNITED STATES
Plaintiff-Appellee, *14 George
Lawrence E. WARNER and H. Sr.,
Ryan, Defendants-Appellants. 06-3517,
Nos. 06-3528. Appeals,
United States Court of
Seventh Circuit. 26, 2007.
Submitted Oct. 31, 2007.*
Decided Oct.
Opinion Published Nov. 2007. * Opinion This originally script was type- released in on October