Morrison v. Board of Educ. of Boyd County

COOK, J., delivered the opinion of the court, in which ADAMS, D. J., joined. MOORE, J. (pp. 611-25), delivered a separate dissenting opinion.

AMENDED OPINION

This panel heard arguments in the matter before us on July 25, 2007, after which we filed an opinion, Morrison v. Board of Education of Boyd County, 507 F.3d 494 (6th Cir.2007), reversing the judgment of the district court and remanding for further proceedings. Subsequently, the Board of Education of Boyd County (the “Board”) filed a petition for rehearing en banc. Review of the briefs and record counsels us to reconsider our previous holding, and as a result we vacate and amend Sections III and TV of the prior opinion. We now affirm the district court’s decision and set forth our opinion, as amended, below.

*605In this appeal, Timothy Morrison (“Morrison”) challenges the district court’s grant of summary judgment in favor of the Board. Morrison is a student at Boyd County High School (“BCHS”). He is a Christian who 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. Wary of potential punishment, Morrison remained silent with respect to his personal beliefs, but challenged in federal court the Board’s right to stifle his speech.

After Morrison filed this lawsuit, the Board changed the BCHS policy, but Morrison’s litigation did not end. We must now decide whether Morrison’s claim for nominal damages premised upon a “chill” on his speech during the 2004-05 school year presents a justiciable controversy. We conclude that it does not, and accordingly AFFIRM the district court’s grant of summary judgment to the Board.

I. BACKGROUND

A. Factual Background

In 2002, some students at 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.

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 *606commonly 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 of the ills of bullying and name-calling. The participants included a BCHS social studies teacher,1 some students, an “ADL Facilitator,” 2 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 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) (emphases 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 plaintiffs 3 filed a complaint in the United States District Court for the Eastern District of Kentucky. They named the 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 (first cause of action), due process (second cause of action), equal protection (third cause of ac*607tion), 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 voicing 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 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 made to the initially challenged policies, 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 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

“This is a case about nothing.”5 The course of federal litigation often involves a *608winnowing of issues. Where, as here, the process of separating wheat from chaff results in a threshing floor bare of justiciable claims, the case is over. For purposes of this appeal, the only remaining claim we need consider is Timothy Morrison’s as-applied pre-enforcement challenge for nominal damages based on his allegations that the Board’s policies during the 2004-OS school year “chilled” his speech. Because we conclude that Morrison lacks standing to pursue his claim of chilled speech, we affirm the district court’s grant of summary judgment to the Board.

That a litigant must establish standing is a fundamental element in determining federal jurisdiction over a “case” or “controversy” as set forth in Article III of the Constitution. E.g., Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2812, 138 L.Ed.2d 849 (1997) (“No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976))). By now, it is axiomatic that a litigant demonstrates Article III standing by tracing a concrete and particularized injury to the defendant— whether actual or imminent — and establishing that a favorable judgment would provide redress. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). For purposes of this appeal, we focus on whether Morrison’s alleged chill constitutes an injury-in-fact and, if so, whether nominal damages would provide sufficient redress. We treat each element in turn.

A. Injury-in-Fact

To avoid conferring standing by way of guesswork, we require that a litigant demonstrate either a concrete harm or the threat of such harm.6 Laird v. Tatum, 408 U.S. 1, 13, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972); ACLU v. Nat’l Sec. Agency, 493 F.3d 644, 660 (6th Cir.2007). With respect to the standing of First Amendment litigants, the Supreme Court is emphatic: “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird, 408 U.S. at 13-14, 92 S.Ct. 2318; see also Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (requiring a harm to be “distinct and palpable” for standing purposes). In Laird, the Court confronted the question of “whether the jurisdiction of a federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity.” 408 U.S. at 10, 92 S.Ct. 2318 (emphasis added). As narrated by the Court, the injury-in-fact alleged by the Laird plaintiffs resulted from a confluence of subjective perceptions, beliefs, and apprehensions. See id. at 13, 92 S.Ct. 2318 (hypothesizing that the plain*609tiffs’ alleged chill arose from their “very perception of the system as inappropriate to the Army’s role,” or “beliefs that it is inherently dangerous for the military to be concerned with activities in the civilian sector,” or “less generalized yet speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm”). Without more, the Laird Court deemed those allegations insufficient. Id. at 13-14, 92 S.Ct. 2318.

The question before us, then, is what “more” might be required to substantiate an otherwise-subjective allegation of chill,7 such that a litigant would demonstrate a proper injury-in-fact? As might be expected, a variety of answers emerges across this court and our sister circuits. A non-exhaustive list includes the following: the issuance of a temporary restraining order, County Sec. Agency v. Ohio Dep’t of Commerce, 296 F.3d 477, 482-83 (6th Cir. 2002); Howard Gault Co. v. Tex. Rural Legal Aid, Inc., 848 F.2d 544, 558 (5th Cir.1988); an eight-month investigation into the activities and beliefs of the plaintiffs by Department of Housing and Urban Development officials, White v. Lee, 227 F.3d 1214, 1226, 1228 (9th Cir.2000); and “numerous alleged seizures of membership lists and other property” belonging to the plaintiffs, Nat’l Commodity and Barter Ass’n v. Archer, 31 F.3d 1521, 1530 (10th Cir.1994). Even this abbreviated list confirms that for purposes of standing, subjective chill requires some specific action on the part of the defendant in order for the litigant to demonstrate an injury-in-fact.

Conversely, absent proof of a concrete harm, where a First Amendment plaintiff only alleges inhibition of speech, the federal courts routinely hold that no standing exists. See, e.g., Grendell v. Ohio Supreme Court, 252 F.3d 828, 834 (6th Cir.2001) (“[Fjears of prosecution cannot be merely ‘imaginative or speculative.’ ” (quoting Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971))); Adult Video Ass’n v. U.S. Dep’t of Justice, 71 F.3d 563, 566 (6th Cir.1995) (same); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1380 (D.C.Cir. 1984) (distinguishing a chilling effect from “the immediate threat of concrete, harmful action”).

Characterizing chill as insufficient to establish standing is not original to this panel. In Adult Video Association v. United States Department of Justice, 71 F.3d 563 (6th Cir.1995), we explained that First Amendment chill typically constitutes the “reason why the governmental *610imposition is invalid rather than ... the harm which entitles [a party] to challenge it.” Id. at 566 (quoting United Presbyterian Church, 738 F.2d at 1378). This understanding of chill comports with the underlying rationales of intersecting First Amendment doctrines. For example, the doctrine of overbreadth relies on a “chill” theory to permit a litigant — who already has standing by virtue of demonstrating a concrete harm — to challenge a rule that may only affect others. See Midwest Media Prop., L.L.C. v. Symmes Twp., 503 F.3d 456, 463 (6th Cir.2007) (“[0]ver-breadth does not excuse a party’s failure to ‘allege an injury arising from the specific rule being challenged ....’” (quoting Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 351 (6th Cir.2007))); United Presbyterian Church, 738 F.2d at 1379 (“It is only in this ... respect that ‘chilling effect’ has anything to do with the doctrine of standing: It permits a person, who has standing to challenge governmental action because of the concrete harm it causes him, to assert a deficiency which may not affect him but only others.”). In order to have standing, therefore, a litigant alleging chill must still establish that a concrete harm — i.e., enforcement of a challenged statute — occurred or is imminent. See Am. Library Ass’n v. Barr, 956 F.2d 1178, 1193 (D.C.Cir.1992) (“[W]hether plaintiffs have standing ... depends on how likely it is that the government will attempt to use these provisions against them ... and not on how much the prospect of enforcement worries them.”).

The claim at stake here involves 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 so punished, we can only speculate. The school district — again, the actual defendant here — stated that its former discipline policy regarding instances of harassment or discrimination “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.” The record is silent as to whether the school district threatened to punish or would have punished Morrison for protected speech in violation of its policy. Morrison asks us, essentially, to find a justiciable injury where his own subjective apprehension counseled him to choose caution and where he assumed — solely on the basis of the Board’s 2004-05 policies and without any specific action by the Board — that were he to speak, punishment would result. We decline to do so. Absent a concrete act on the part of the Board, Morrison’s allegations fall squarely within the ambit of “subjective chill” that the Supreme Court definitively rejected for standing purposes. Laird, 408 U.S. at 13, 92 S.Ct. 2318 (quotation marks omitted). Morrison cannot point to anything beyond his own “subjective apprehension and a personal (self-imposed) unwillingness to communicate,” ACLU, 493 F.3d at 662, and those allegations of chill, without more, fail to substantiate an injury-in-fact for standing purposes.

B. Redressability

Though we determine that Morrison fails to state an injury-in-fact, we also comment on the second element of standing: whether nominal damages would redress Morrison’s alleged injury. No readily apparent theory emerges as to how nominal damages might redress past chill. As Morrison’s own counsel acknowledged at oral argument, nominal damages are a vehicle for a declaratory judgment. As such, nominal damages have “only declaratory effect and do not otherwise alter the legal rights or obligations of the parties .... [T]hey can sometimes constitute *611effectual relief, but only with respect to future dealings between the parties.” Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1267-68 (10th Cir.2004) (McConnell, J., concurring) (emphasis added). While we may have allowed a nominal-damages claim to go forward in an otherwise-moot case, see Lynch v. Leis, 382 F.3d 642, 646 n. 2 (6th Cir. 2004); Murray v. Bd. of Trs., Univ. of Louisville, 659 F.2d 77, 79 (6th Cir.1981), we are not required to relax the basic standing requirement that the relief sought must redress an actual injury.

In the situation before us, Morrison seeks nominal damages based on a regime no longer in existence. To confer nominal damages here would have no effect on the parties’ legal rights. See Utah Animal Rights, 371 F.3d at 1268 (McConnell, J., concurring) (“Where ... the challenged past conduct did not give rise to a compensable injury and there is no realistic possibility of a recurrence, nominal damages have no more legal effect than would injunctive or declaratory relief in the same case.”) (emphasis added). Because nominal damages will not provide Morrison any redress, his suit fails to satisfy the second requirement for standing.

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.

IV. CONCLUSION

Morrison fails to demonstrate either a concrete harm or how a favorable judgment might redress his purported injury. As a result, he lacks standing and we affirm.