Recently, the ACLU of Utah received information that a student was asked to leave her school’s homecoming dance because she was there with a female date. This request clearly violated the constitutional rights of the student and her date, in particular the right to free expression and free association guaranteed by the First Amendment, as well as Constitution’s promise of Equal Protection.
We took this opportunity to write a letter to every school district superintendent in Utah, educating them about the court decisions upholding the rights of same sex couples to attend proms and other school dances and functions in the hope that it might prevent future circumstances that could result in litigation. We urged the superintendents to contact each of their school principals and inform them that policies excluding LGBTQ students must be abandoned immediately.
Two federal court cases have evaluated the constitutionality of a public school’s ban on same-sex couples at prom. Fricke v. Lynch in 1980, and McMillen v. Itawamba County School District in 2010. In Fricke v. Lynch the principal being sued testified in court that the school’s prom policy was based on concern about possible disruption and violence at the prom in reaction to the participation of a gay couple. The Court was convinced of the sincerity of the principal’s concern but nevertheless ruled that the Constitution required the school to take steps to protect the couple’s free expression rather than to stifle it. “To rule otherwise would completely subvert free speech in the schools by granting other students a ‘heckler’s veto’, allowing them to decide through prohibited violent methods what speech will be heard,” wrote the Court.
Coming two decades after Fricke was decided, a public school in Mississippi cancelled the prom rather than allow a student to bring a same-sex date. In the highly publicized case that resulted, a federal court ultimately determined, once again, that school policies that ban same-sex dates at the prom violate the right to free expression guaranteed by the First Amendment. McMillen v. Itawamba County School District, 702 F.Supp.2d 699 (N.D. Miss. 2010). The Court found that “this expression and communication of her viewpoint [bringing a same-sex date to prom] is the type of speech that falls squarely within the purview of the First Amendment… For all the foregoing reasons, the Court finds that [the student’s] First Amendment rights have been violated.” The Court further held that the school district had violated the student’s rights by cancelling the prom instead of allowing her to attend with her same-sex date. This case resulted in a judgment entered against the school, as well as more than $116,000 in damages and attorneys’ fees.
As mentioned above, in addition to violating free speech rights, a policy prohibiting same-sex couples from attending prom or school dances violates equal protection too. The U.S. Supreme Court has ruled that policies by public entities (like public schools) that are based upon animosity or prejudice towards gay people violate our commitment to equal rights guaranteed to all Americans by the Fourteenth Amendment. Romer v. Evans, 517 U.S. 620 (1996).
Because we have worked closely with school districts across the state to protect the rights of students to form Gay Straight Alliances and exercise free speech, the ACLU of Utah looks forward to working with Utah’s district superintendents and school principals to ensure the constitutional right of all students, regardless of sexual orientation, to attend school proms, dances, and other functions.
The ACLU of Utah is proud to report that it has already received confirmation from one School District Superintendent that he will personally instruct each of the principals in his District that LGBTQ students must not be excluded from school activities, like dances. We are hopeful that we will receive similar responses from every school district in the state.
Read the letter sent to all District Superintendents (PDF) >>
Read the decision in Fricke v. Lynch (PDF) >>
Read the decision in McMillen v. Itawamba County School District (PDF) >>
National ACLU: Prom Resources for LGBT Students >>