Appeals court reverses anti-harassment ruling

By MIKE JAMES
The Independent

CINCINNATI October 27, 2007 12:23 am

— A federal appeals court has reversed a lower court decision against a Boyd County High School student who claimed anti-harassment training violated his free-speech right to freely practice his religion.
A three-judge panel ruled the lower court should reconsider Timothy Morrison’s claim that school policy on harassing speech prevented him from expressing his Christian belief opposing homosexuality.
U.S. District Court Judge David Bunning had granted a summary judgment to the Boyd County School District against Morrison.
Morrison’s claim seeks only nominal damages. The policy the claim addresses was changed by the school board after Morrison filed his suit.
His suit stems from an earlier lawsuit by a group of students who attempted in 2002 to form a gay-straight alliance, a club for gay and straight students. Settling that case involved mandatory anti-harassment training for middle- and high-school students and staff.
The high school also formulated an anti-harassment policy that at first prohibited stigmatizing or insulting comments about another student’s sexuality.
Morrison contended he kept his religious opinions to himself to avoid punishment.
Two of the judges concluded that even though the policy had been changed, it may have had a chilling effect on Morrison while it was in effect and therefore he should have the opportunity to make that case in court.
A third justice disagreed and called the ruling “a case about nothing.”
No significant monetary damages are at stake, but the outcome of the case remains important, said Kevin Theriot, an attorney for the Alliance Defense Fund, an Arizona-based legal organization that takes on religious-rights cases.
“It indicates our client’s free speech rights could have been violated,” Theriot said. “The amount of the damages isn’t the issue. It’s the principle involved.”
The opinion makes it clear schools don’t have to squelch first amendment rights in order to keep lesbian and gay students safe, said Sharon McGowan, an attorney for the American Civil Liberties Union’s Lesbian and Gay Rights Project.
The ACLU got involved on behalf of the students in the original Gay-Straight Alliance case. It agreed with Morrison that the original school policy violated free-speech rights.
“There’s a balance that can be struck and should be struck so that places like Boyd County can become more tolerant,” McGowan said.
In a strongly worded dissent, Judge Deborah L. Cook said the opinion “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.”
Cook said the district had adopted a policy that balanced protection of gay students with the First Amendment rights of students and that keeping the case alive “vindicates no interest and trivializes the important business of the federal courts in protecting actual constitutional violations.”
“We think Judge Cook’s dissent is exactly right,” said Winter Huff, an attorney representing the school district.
“The focus of the district should be on educating students. Any time spent dealing with matters of litigation instead of education takes away the focus on education,” she said.
MIKE JAMES can be reached at mjames@dailyindependent.com or (606) 326-2652.

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