Fighting for her right to party at the prom

Scott Forsyth, The Daily Record Newswire

According to the calendar, spring has arrived. With spring comes proms and with proms come controversy.

Last month, a report circulated that McQuaid High School refused to let two gay students attend the Junior Prom as dates on April 26. The report had some leg because several Catholic high schools in other parts of the country have such a policy.

The president of the school had to send out a long letter denying the report. The gay students will be able to attend as a couple.

For the record, the president stated “I am not encouraging or condoning homosexual activity just as I do not encourage or condone heterosexual activity at a dance.” What are dancing, and dating, but exercises in homosexual and heterosexual activity?

I digress. What if a public high school prohibits a gay student from bringing a boy as a date to a prom? What if the public high school permits same-sex dates but requires boys to wear tuxedos and girls to wear dresses? Sound far-fetched? Not so in Fulton, Miss., a small city of 4,000 hard by the Alabama border.

Constance lived in Fulton. She came out in eighth grade and thereafter openly identified herself as a lesbian.

She wanted to take her girlfriend to the prom and asked for permission to do so. Her school had a policy that prom guests “must be of the opposite sex.” Both the principal and the superintendent of the school district said no.

Constance and her girlfriend could attend separately but they could not slow dance together. That could “push people’s buttons.” If their attendance made anyone uncomfortable, they would be “kicked out.”

The principal and the superintendent also said “no” to wearing a tuxedo or slacks. Constance had to wear a dress.

Constance turned to the ACLU, which brought a lawsuit on her behalf. It alleged the policy and the actions of the principal and the superintendent violated her First Amendment rights.
The court agreed but did not grant her all of the relief she wanted, McMillen v. Itawamba County Sch. Dist., 702 F.Supp. 2d 699 (N.D. Miss. 2010).

To Constance, the prom is a special event which she wanted to share with her girlfriend. She did not want to hide her sexual orientation at the event. She did not want to pretend to be something that she was not by going with a male date. Her sexuality is central to her identity. Consequently, denying her request constituted censorship, so ruled the court.

Turning to Constance’s desire to wear a tuxedo, the court pointed out the wearing of clothing is conduct and not pure speech. A person must intend “to convey a particularized message” by her conduct and “the likelihood [must be] great that the message [will] be understood by those who view it” before conduct will be considered speech, Texas v. Johnson, 491 U.S. 397, 404 (1989).

At a school, the conduct considered speech must also not “substantially interfere with the work of the school or impinge upon the rights of the other students,” Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503, 509 (1969).

Tinker involved the wearing of black armbands to protest the Vietnam War, conduct protected by the First Amendment. On the other hand, if the choice of dress is just the student’s “preferred form of self-expression,” the choice is not protected.

The court compared Constance to the students in Tinker. Constance believed students should not be forced to wear clothes that conform to traditional gender norms. Wearing a tuxedo was her way of expressing her views on the subject. Nobody argued the wearing of the tuxedo or her dancing with her girlfriend would substantially interfere with the work of the school.
Sadly, Constance did not get what she wanted — being part of a real prom to cap her high school career.

On the eve of the lawsuit the school cancelled its prom and let parents stage a prom of their own. The parents stated Constance and her girlfriend would be welcome. Therefore, the court did not direct the school to reinstate its prom.

Unbeknownst to the court the parents scheduled two proms, one announced publicly and one to be held in secret. They invited Constance and her girlfriend to the former but not the latter. Naturally, few students showed up for the public prom.

Constance did settle her lawsuit and the school district paid her $35,000. More important, it adopted a policy barring discrimination on the basis of sexual orientation.

Constance’s experience may have been egregious but it is not unique. The beginning of this month the ACLU felt compelled to send a letter to hundreds of school districts outlining the do’s and don’ts on same-sex dates and attire at proms. Hopefully, the letter will remind the districts not to discriminate on the basis of sexual orientation.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.