The First Amendment Goes to the Prom
In spring a young woman’s fancy turns to love. Take Constance McMillen for example. A senior at Itawamba Agricultural High School in north Mississippi, McMillen has been out as a lesbian since the eighth grade. Back in February the high school — for some reason — issued a policy directing that only opposite sex couples could attend the upcoming prom in early April. McMillen asked for an exception so she could bring her girlfriend, and she also asked permission to wear a tuxedo. The high school and the county school board denied her requests. McMillen and the girlfriend could attend, but only if each came with a boy as her date, if the girls wore dresses (not a tux, not slacks and a nice top), and if they did not slow dance with each other, which would “push people’s buttons”. After McMillen got the Mississippi ACLU involved, the school board cancelled the prom altogether, citing potential “distractions to the educational process”. The school board expressed the “hope that private citizens [would] organize an event for the juniors and seniors.”
McMillen promptly sued in federal court, seeking an injunction to compel the prom to go forward. In a decision issued March 23, just one day after the hearing, Senior U.S. District Judge Glen Davidson (no liberal he — a Reagan appointee) denied her request. McMillen v. Itawamba County School Dist., 2010 U.S. Dist. LEXIS 27589 (N.D. Miss. 2010). The opinion contains some interesting holdings. The judge found that McMillen had a First Amendment interest in attending the prom with a same-sex partner, and also a First Amendment interest in wearing cross-gender formal attire to the prom. More on those notions in a moment. Holding number three — he denied the preliminary injunction, based on his assessment of the familiar fourth factor for injunctive relief, consideration of the public interest. There was no need to reinject the school board into the prom process via court order or to get the court involved in planning and overseeing a prom, he found, because the parents of the high school students represented to him that they were now planning a “private” prom which all the students in the high school would be invited to attend. Judge Davidson’s opinion used the scare quotes around “private” and the italics for all. Perhaps he suspected something was up.
With good reason, it turns out. There were some additional shenanigans. McMillen couldn’t find out where to buy a ticket to the “private” prom, then when she did, was told she had missed the cutoff time for purchase by a few minutes. Then the parents announced that the prom they had told the judge about was cancelled altogether. Eventually, though, McMillen thought that it was finally settled and on April 2 off she went in her tuxedo to her hard-won prom. Only to find it was a decoy. McMillen and her date (not the girlfriend, BTW — the girlfriend’s parents wouldn’t let her attend because of the media attention) were just about the only ones there — five other students, two of them with learning disabilities, and the chaperones, who were the high school principal and other school officials. All the other students had gone to another, “private” prom being held at the same time in a location concealed from McMillen. Some of the high school students later bragged on Facebook about the whole deception, further mocking McMillen.
Ah, but the court encounter is not over. Judge Davidson indicated he would hold a hearing on damages some time in April. That should give him an occasion to explore whether the parents lied to him back in March (contempt?), and whether they were in cahoots with the school officials (state action, conspiracy?). I hope he slams them all big time. Perhaps he should find the entire community of Fulton, Mississippi, (pop. 4000) in contempt if the evidence warrants and if there’s a way to do it.
Meanwhile, we are left with some very interesting issues about gender performance and the First Amendment and the public/private nature of a ceremonial event like a prom. Why is it a First Amendment issue who you hold hands with or walk through the door with or dance with? It’s not speech, but conduct. Dancing itself is not First Amendment protected activity, the Supreme Court has held, though nude dancing may be, just barely. Compare City of Dallas v. Stanglin, 490 U.S. 19 (1989), with Barnes v. Glen Theater, Inc., 501 U.S. 560, 565 – 66 (1991). Just when is same-sex dancing expressive conduct?
As to his holding that the same-sex couple attending and dancing at the prom constitutes First Amendment expression, Judge Davidson relied on two cases. One is Gay Student Organization of New Hampshire v. Bonner, 509 F.2d 652 (1st Cir. 1974). Shortly after the University of New Hampshire recognized a gay student group, the group held a dance. A political furor ensued. The University decreed that the group could henceforth have political but not social functions. After a play, someone distributed political literature and the University president threatened to suspend the student organzation. The group sued, claiming violation of its freedom of association. The First Circuit held for the student group, noting that social functions were sometimes political, and that political campaigns were often built around teas, coffees, and dinners. A fraternity or sorority might be purely social and its events subject to some regulation, but not a group like the GSO with a core political purpose. Id. at 659 -60 In Bonner, then, the court is still looking out for traditional First Amendment core political speech, just embedded in social functions.
The other case Judge Davidson relies on is something else altogether and, from a gender theory perspective, far more interesting. Fricke v. Lynch, 491 F.Supp 381 (D.R.I. 1980), is a leading same-sex prom date case, indeed so far as I can tell it is the only other reported federal same-sex prom date case besides McMillen v. Itawamba County School Board. In Fricke, Judge Pettine found a protected First Amendment speech interest in Aaron Fricke bringing his boyfriend to the school prom. Pettine required the high school to allow Fricke and his male date to attend, holding that excluding Fricke was not the least restrictive means of avoiding the potential for violence — the school should just get better security for the dance.
On the question of whether there was a First Amendment interest, Judge Pettine found that Aaron Fricke sought to express a political message that he was “sincerely though not irrevocably committed to a homosexual orientation” and wished to make a statement in favor of equal rights and human rights. The opinion then offered a footnote which has always fascinated me. Judge Pettine wrote:
Aaron seeks to express a political message in a social setting. His message … will take a form uniquely consonant with the setting he seeks to attend and participate [in] like everyone else. Thus, while a purer form of speech such as leafleting or speechmaking might legitimately be barred at a dance, prohibiting Aaron’s attendance does not fall within the rubric of a time, place, and manner restriction. This is especially so because the school’s conduct is not entirely content-neutral.
491 F.Supp at 385 n. 4. Judge Pettine found no need to reach Fricke’s free association claim, as the free speech claim was dispositive.
How does this work? The prom is apparently understood to be a kind of forum about sexual orientation (and gender more generally though the word is not used), and about inclusion and exclusion, and about citizenship in its Kennth Karst equal dignity sense. Leafletting — verbal disputation — would be disruptive of the prom, in a way that the school could prohibit, while appearance with a same-sex date, also potentially disruptive (recall the judge told the school to get more security) is constitutionally protected because more appropriate to the occasion. At a prom, the footnote seems to suggest, you don’t speak your message about gender, sexuality, identity, and citizenship — you dance it.
The tuxedo holding in McMillen is perhaps even more puzzling and remarkable. Judge Davidson’s express precedent is Canady v. Bossier Parish School Board, 240 F.3d 437 (5th Cir. 2001), a school uniform case that at best has some dicta about clothing and other expressive conduct. Canady itself relies on cases where there are words printed on the clothing, e.g., Cohen v. California, 403 U.S. 15 (1971), or the clothing itself has symbolic content, like the protest armbands worn in Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).
I don’t find that this helps much in understanding the stakes in the Ms.-McMillen-wants-wear-a-tuxedo-to-the-prom issue. For the communicative content of an armband depends on some shared appreciation of what is being protested; and a protester decides to express her/himself by wearing the armband instead of not wearing it. Most of the time, one might think, wearing a tuxedo is not immediately understood as offering a political statement. Wearing a tuxedo gains First Amendment protection not because the tuxedo itself signals political protest, but by virtue of who is wearing it and in what context it is worn. To be sure, the tuxedo (and its feminine counterpart, the fancy evening dress) already typically signal a heightened and important social occasion. And at a prom, gendered behavior is especially observable and observed and important. In this particular setting it is a special, communicative kind of mis-behavior to put a tuxedo (masculine-gendered clothing) on a female body, or, vice-versa, to put a prom dress on a man. It is the out-of-placeness that creates the First Amendment protected communication, not the clothing itself.
We might look for other examples of out-of-placeness as First Amendment protected expression. For example, perhaps a United States flag flown upside down. I will also mention Spence v. Washington, 418 U.S. 405 (1974), a case that involved a peace sign fashioned of tape and affixed to a United States flag. To be sure, the peace sign itself had an independent symbolic meaning, which was heightened by its placement over a flag displayed out a window. Suppose we characterize the behaviors at issue in Fricke and McMillen as gender display — who you walk in the door with to a dance, whether you wear clothing consistent with the gender assigned on the basis of your body’s sex, and who you slow dance with. We’re actually signalling those all the time, it’s just that most of us so take gender performances for granted that they seems natural, personal and not political. In wearing a tuxedo, McMillen does somethign akin to inscribing a transgressive symbol on a flag; she makes her dissent more visible — to some, shockingly visible — by its inappropriateness according to social convention about gender.
We might characterize the high school prom as a ceremonial event intended to heighten and focus a community’s attention on adolescent gender display, as a modern American rite of passage into adulthood. Fricke and McMillen, as out LGBT folk, disagreed with the gender performance expectations directed at them, while their high schools sought to enforce their performances of those expectations. Fricke and McMillen sought to behave differently and at the same time to have that difference acknowledged and accepted as part of a normal spectrum of choice in their communities. In walking through the dance hall door with another person of the same gender, wearing cross-gender clothing (in McMillen’s case), and slow dancing with someone of the same gender, they sought to act in a way that is quintessentially political and expressive, in a forum where how they act is especially likely to be seen and heard and understood as a critique of the institutionalized role of gender in affirming heterosexuality and excluding and stigmatizing other sexualities. Though surely they wouldn’t put it in that kind of theoretical vocabulary. To them it was simply personal.
We might think of the high school prom then as a limited public forum. Once a public high school commits to holding a prom, it cannot refuse to admit specific viewpoints that participants seek to enact through their choice of date, dance partner, and clothing, except under a compelling interest / least restrictive means test. To insist on gender appropriateness at a prom is to discirminate based on viewpoint. Moreover, shutting down the forum, once it has been opened, has to be subjected to the same exacting scrutiny of motive and effect.
There remains the question — which we will have to save for another day — of whether the evident publicness of a school-wide or community-wide dance maps onto the sort of publicness that can be addressed as state action under the First and Fourteenth Amendments. Surely it does when the high school sponsors the event, but what when the school cancels and a “private” prom emerges as a substitute? In the upcoming hearing, Judge Davidson it seems to me has several options to address collusion between the high school and school board officials and the townsfolk who appear to have created a decoy prom, contrary to what was represented to him. But a wider question remains. In some small circumstances our constitutional jurisprudence notices that ostensibly private action is actually public in the sense that it can be reached. Should Marsh v. Alabama or perhaps even Runyon v. McCrary be invited to the prom, too?