In Brief

Staff Reports

ACLU Tells Utah School Districts Banning Same-Sex Couples Unconstitutional

SALT LAKE CITY -- The ACLU of Utah sent a letter out to all school district superintendents Monday that cautioned banning same sex couples from being bale to attend proms and other school dances and functions would clearly violate their constitutional rights.

The ACLU of Utah's Interim Legal Director Joseph Cohn wrote:

Recently, the American Civil Liberties Union of Utah Foundation, Inc. (“ACLU”) received information that a student was asked to leave her school’s homecoming dance because she was there with a female date. I am writing to you now because any rule, policy, or practice that forbids students from attending school dances with same-sex dates is unconstitutional, and must cease or be rescinded immediately. It is my sincere hope that by addressing this issue now, we will be able to avoid costly litigation should we learn of any future instances of LGBT students being turned away from school functions. It is in this spirit of cooperation that I urge you to contact each of the school principals in your district to inform them that policies of LGBT exclusion must be abandoned immediately.

A spokesperson for Equality Utah said their organisation had received a complaint from the Sevier County, Utah female high school student a month ago and instructed her to contact her the ACLU.

ACLU Director Cohn's letter goes on to point out that two federal court cases have evaluated the constitutionality of a public school’s ban on same-sex couples at prom. In the first case, Fricke v. Lynch in 1980, 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 Federal 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.

Nearly twenty years after that case was heard, a public high school in Mississippi cancelled the prom rather than allow a student to bring a same-sex date. In the highly publicised case that resulted, McMillen v. Itawamba County School District, a federal court in Mississippi ultimately determined that school policies that ban same-sex dates at the prom violate the right to free expression guaranteed by the First Amendment. 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.

In addition to violating free speech rights the ACLU maintains a policy prohibiting same-sex couples from attending prom or school dances violates the equal protection provisions of the constitution as well. 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 violates a commitment to equal rights guaranteed to all Americans by the Fourteenth Amendment.

As 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 LGBT students must not be excluded from school activities, like dances. We are hopefully that we will receive similar responses from every school district in the State.  ~ ACLU Utah