Supreme Court Denies Hearing on School Anti-Harrassment Measures

Supreme Court Denies Hearing on School Anti-Harrassment Measures

February 25, 2009 LGBT News Youth Issues 0

In 2002, students at Boyd County High School requested to be allowed to form a Gay Straight Alliance (“GSA”).  Unfortunately, due to religious bias and prejudice against homosexuals, they were met with adversity.  Although the GSA was approved, within two months of its formation the school banned the GSA and purportedly banned all other student organizations for that term.

As a result, several students (along with their parents) filed suit against the school district in federal court.  A preliminary injunction was issued which required the school board to provide equal access to the GSA and mandated anti-harassment training for all students. The school district then adopted a policy against “Harassment/Discrimination” defining such 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 creates a hostile or abusive educational environment.

In a further effort to fulfill its requirement, the school board created two training videos. One of the videos included a passage from a clinical psychologist, which advised:

…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[,” 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.

The video concluded with a statement by Matthew Spade, the High School Compliance Coordinator, wherein he advised:

In today’s video you learned about bullying, you learned about name calling and we hope you learned a little bit about how to treat people with respect, and with that respect also comes the school’s respect for your beliefs, your religious beliefs and your sense of right and wrong.  We would never try to influence those things.  They are very sacred and they should only be influenced by you and your parents and family.  Please realize that with the video that we showed today we are only trying to instill a sense of honor amongst our students to learn not to treat someone unfairly or harass someone because they are different from us.  If you have any questions about the video that you just saw, there will be a short question and answer session at the conclusion of this video.  If you do not feel comfortable asking these questions in front of your classmates, feel free to contact the counselors through the school email system.  We would hope that you would also discuss these issues with your family at home.  Thank you.

In spite of Mr. Spade’s statement, parents of the would-be hecklers feared that the new polices and the mandatory training would not only discourage, but prohibit their children from speaking about their religious beliefs regarding homosexuality.  Eventually, a group of parents sued the school board claiming the policy was a violation of their constitutional rights, including: (1) due process; (2) equal protection; and (3) free exercise of religion.  For these alleged violations of their rights, the Plaintiffs (Morrison, et al.) sought relief in the form of a declaratory judgment (non-monetary), injunction (non-monetary), actual damages (monetary), nominal damages (also monetary), costs and attorney fees (obviously monetary).

Six months after the original filing, the school board revised its policy and codes of conduct.  Under the revised codes, anti-homosexual comments would be allowed 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.”  [thud noise added]

These revisions should have rendered the Plaintiffs’ claims moot; however, the plaintiffs, having already forced the school district to change their policy in order to ensure religious students can tell other students that they are going to hell, plaintiffs continued the litigation.

The parties then filed motions for summary judgment and the district court granted the defendant school district’s motion while denying the motion filed by the plaintiffs.  The court, in its opinion, stated it “was not inclined to adjudge the constitutionality of policies no longer in effect.”  [Can I get an Amen?]  The court further decreed that the plaintiffs claim for damages failed because the plaintiffs had no measure or amount for the damages they were alleging.

However, in October, 2007, the Court of Appeals disagreed with the district court and declared that the plaintiff’s request for “nominal damages” does not require support by fact.  Further the appellate court found that nominal damages do not require proof of actual injury as they are “symbolic”.

This left the court to decide whether or not Morrison had “standing” to bring his nominal-damages claim, or, in other words – does Morrison have sufficient stake in a controversy to obtain judicial resolution of the controversy? Because the Court felt Morrison “chilled” his speech to prevent punishment, the court held that it constituted “injury-in-fact.”  The court went on to declare that “Morrison easily satisfies the causation part of the standing inquiry” and surprisingly found that he meets the third test of standing, redressability. The court actually wrote in their opinion:

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.

The dissenting justice wrote:

… the fact remains that they [the Morrisons] 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 damage based on Morrison’s choice to chill his own speech based on his perception that he would be disciplined for speaking.

I tend to agree with the dissention on this one in spite of my relentless support of free speech and expression.  I just couldn’t understand how the court determined that Morrison had standing for the suit.

Then, I was affirmed.  After a petition for rehearing was filed by the Board of Education, The 6th Court of Appeals amended their decision in April, 2008.  In the amended ruling, the court affirmed the decision of the lower court due to the Plaintiff’s lack of standing declaring that there was no “injury-in-fact.”  Justice, it seems, is served.

Then, in November, 2008, approximately six years after the original lawsuit was filed, Morrison filed a Petition for a writ of certiorari with the U.S. Supreme Court.  The issue presented to the Supreme Court was:

Whether the United States Court of Appeals for the Sixth Circuit correctly determined that Petitioner lacked standing and could not pursue a claim for even nominal damages.

Within 3 months, the Supreme Court denied the petition.  The result is thus:  Regardless of whether you believe someone is bad, wrong or unlikeable, you can no longer call them things like “jew“, “spick“, “gook“, “nigger” or “faggot” while at a Boyd County school because such language is hostile – yet you can tell them all they are going to hell for being “jewish”, “black”, “disabled, “a woman”, “asian” or a “homosexual.”  The harshness of the language may be downplayed, but the message remains the same mantra, “I think I’m better than you.”

Plaintiffs relevant to Appeal Court decision were Timothy Allen Morrison II, his parents, Timothy and Mary Morrison, Brian Nolen and Debora Jones (Brian and Debora are parents of other Boyd County Middle School students).  They were represented by Kevin H. Theriot, Alliance Defense Fund, 15192 Rosewood, Leawood, KS  66224,, (913) 685-8000.  Inquiries made to Mr. Theriot were not responded to prior to publication.

The defendant Board of Education of Boyd County was represented by Winter R. Huff, Law Offices of John G. Prather, PPSC, PO Box 616, Somerset, Kentucky 42502-0616, (606) 679-1626.  Special thanks to Ms. Huff for providing documentation to support the research involved in this article.

CLICK HERE for the complete text of the Amended 6th U.S. Court of Appeals decision.

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