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Opening Arguments

Tuxedo junction

It's no big deal one way or the other if the unnamed lesbian high school student in Lebanon wins her suit against the school district and is allowed to wear a tuxedo to the prom. Schools have been given more leeway in recent years to regulate all sorts of student behavior, so it would be no great surprise if she lost. On the other hand, who cares what she wears? Are we going to make Secretary of State Hillary Clinton give up her pants suits and start wearing dresses to diplomatic functions?

But the case is interesting because it shows how convoluted our freedom-of-speech ideas have become:

In the filing, ACLU of Indiana Legal Director Ken Falk argued that the district's policy violates the U.S. Constitution.

"From a First Amendment standpoint, wearing a tuxedo makes an affirmative statement about her own sexuality," Falk said. "Students have free-speech rights."

Well, students don't exactly have free-speech rights, but never mind that for now.

Falk's assertion that wearing a tuxedo "makes a statement" reflects the legal evolution from treating the First Amendment as a protector of actual speech to making it apply to all sorts of symbolic speech, everything from dancing nude to burning a flag. And the further the amendment is stretched, the more things it is supposed to cover, the less likely we are to understand its primary purpose of protecting the free exchange of political ideas. So McCain-Feingold restrictions on campaign finance pass and are signed by the president and left in place by the Supreme Court despite their obvious unconstitutionality. Local politicians try to place restrictions on the size and placement of campaign yard signs, and hardly anyone objects.

But Falk and the ACLU can't be faulted too much here. Just consider each side in the debate. The girl doesn't wear dresses because they "express a sexual identifty that she does not embrace." And one of her opponents says kids should not be allowed to act out certain impulses. "A girl in a tuxedo doing this as a sexual statement, that's something the school should draw the line at." Nothing but symbolism on all sides. The ACLU is merely, um, following suit.

Oh, and speaking of the Supreme Court. It could end this wrenching controversy if it wanted to, but, nooooo:

"The legal landscape is not entirely clear," McCarthy said. "We don't have Supreme Court rulings that have given us exact marching orders."

All this heartache ove proper prom attire, and our Supreme Court justices are too busy and self-important to give us our marching ordes!


tim zank
Thu, 03/12/2009 - 10:31am

I don't know which is a sadder reflection on 2009 America, the fact that this kid obviously raised the issue waaaaay ahead the Prom (instead of just showing up in a tuxedo, in which case nobody would have cared) deliberately in order to spark a lawsuit and subsequent controversy (read pay attention to me please), or the fact that the ACLU has time for such nonsense.

We sure are making important strides in education.

Michael B-P
Thu, 03/12/2009 - 2:36pm

Some male-appendaged being possessed of indeterminate sexual preferences needs to publicly express his desire to wear a formal dress to the prom. Otherwise, how can this issue upon which the fate of further First Amendment adjudication and interpretation so heavily depends be shown the proper legal diligence it deserves?

tim zank
Thu, 03/12/2009 - 3:08pm

Oddly enough Micheal B-P, some dude did that a year or two ago but I can't remember what state it was in. He was actually running for Prom Queen too. I gotta look that up and see if he won, I could send it along to the ACLU for precedent.

William Larsen
Fri, 03/13/2009 - 11:24am

Formal attire, what is the definition? As for free speech, Tinker Vs. Des Moinse Board of Education (1969) cleared up a lot of this. They stated very clearly;

The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. See West Virginia v. Barnette, 319 U.S. 624 (1943); Stromberg v. California, 283 U.S. 359 (1931). Cf. Thornhill v. Alabama, 310 U.S. 88 (1940); Edwards v. South Carolina, 372 U.S. 229 (1963); Brown v. Louisiana, 383 U.S. 131 (1966). As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to "pure speech" [p506] which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. Cf. Cox v. Louisiana, 379 U.S. 536, 555 (1965); Adderley v. Florida, 385 U.S. 39 (1966).

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.