Legalizing Gay: The Child Plaintiffs

Fricke is a fascinating case that pops up in most, if not all, gay rights classes in law school. Its underlying claim — that the act of bringing a same-sex date to a school prom is a form of symbolic speech and should be protected as such — was groundbreaking and novel. The argument is also ironic: the only reason why the intimate act of a date can be considered symbolic speech on a topic of great public importance, and thus constitutionally protected, is because conservative resistance to gay equality pushed everything about homosexuality into public debate.

In any event, Fricke challenged a school's decision to limit pro-gay speech because of threats of violence. The principal had refused Aaron's request to bring a same-sex date because of the "real and present threat of physical harm to [Aaron], [his] male escort and to others." But, the court rejected that view because it would give homophobic and hateful students a "heckler's veto" over otherwise permissible speech. A "heckler's veto" is just what it sounds like; it occurs where the government censors a speaker based solely on the perceived or expected reaction of the listener, and it is almost always an unconstitutional reason for censorship.

The court found that bringing a same-sex date to prom was an act of symbolic speech, or nonverbal actions that are purposely meant to convey a message. Here, the message was gay equality, the legitimacy of homosexuality, the freedom to love whom you choose, and the freedom to be out and proud in a public school, to name just a few of the possible messages conveyed by Aaron's date. The legitimacy of Aaron's symbolic speech was not analyzed through the lens of Tinker v. Des Moines, the seminal 1969 student speech case that required schools to protect student speech unless it causes a "material and substantial disruption" to school activities. Rather, the Rhode Island district court looked at Aaron's claim through United States v. O'Brien, a 1968 draft card burning case that was the leading authority on symbolic speech.

O'Brien had burned his draft card to protest American involvement in the Vietnam War in violation of a federal law that criminalized draft card burning. The Warren Court recognized that O'Brien's conduct has expressive elements, but affirmed O'Brien's conviction because the government had a substantial interest in preserving draft cards and the law was directly tailored to that end.

Regular Towleroad readers will notice a form of heightened or strict scrutiny in this analysis. So, any restriction on symbolic speech would be unconstitutional if there was some less restrictive alternative to the censorship. In Fricke, the court saw a plethora of such alternatives. If the principal was worried about violence, he could have beefed up security and, for that matter, could have investigated what kind of violence could erupt, something the school could not articulate at trial. Aaron was able to attend his prom with his boyfriend, a happy ending indeed.

When it comes to same-sex prom dates, Fricke is still good law, though some scholars wonder how Fricke fits into the Supreme Court's student speech cases from Tinker in 1968 to more recent cases involving lewd or drug-related speech in schools. Still, Fricke has been cited in challenges to school policies as far away as Utah and Mississippi and, in most cases, public schools back down, permit gay students to bring same-sex dates to prom, and the world goes on spinning. 

BulliedFor his victory, Jamie Nabozny had to suffer through much more than the few heckles Aaron got at his prom. Jamie attended a school that either condoned his abuse or willfully turned a blind eye to it. The unimaginable cruelty his peers showed him may make you cry, but the deafening silence from his teachers should make us all angry.

Lambda Legal took Jamie's case to the Seventh Circuit Court of Appeals in Chicago, arguing that by refusing to protect Jamie while knowing about his harassment, school officials violated Jamie's civil rights. Jamie and Lambda won a landmark case that still governs how schools have to respond to known cases of anti-gay harassment and bullying.

Jamie's claim alleged that school administrators denied him equal protection of the law by failing to extend the same kind of antiharassment protection they extend to other students simply because of his gender and sexual orientation. On appeal, the Seventh Circuit found that although the school stipulated that it had a commendable record of enforcing antiharassment policies, it clearly did not do so in Jamie's case. And there was strong evidence suggesting that this disparate treatment was based on Jamie’s sex.

That Jamie's principal responded to a mock rape of Jamie by stating "boys will be boys" suggests that she dismissed the incident, in part, because both victim and perpetrator were males. The court found "it impossible to believe that a female lodging a similar complaint would have received the same response." As to Jamie's sexual orientation claim, the court found that the administrators' comments that Jamie should expect to be assaulted because he is gay or openly gay sufficiently proved that Jamie was treated differently because of his sexual orientation.

We may recognize some of these arguments in today's debates over Title VII — the law that bans workplace sex discrimination — and its sister statute, Title IX — the law that bans sex discrimination in schools. Nabozny may stand for the proposition that a school's refusal to address anti-gay harassment constitutes both discrimination on the basis of sex (which could be a violation of Title IX) and discrimination on the basis of sexual orientation (which could be a violation of the Equal Protection Clause). Though it is difficult to replication Jamie's and Lambda's success (it was, after all, a particularly egregious case), the precedent set in Nabozny is protecting LGBT youth from the same horrors Jamie had to face alone.

This last year, brave young men and women like Maverick Couch and Kearian Giertz have come forward to challenge their schools' censorship of pro-gay, identity-affirming expression. Parents and students, with the help of organizations like the Gay Lesbian Straight Education Network (GLSEN) and the Human Rights Campaign (HRC), are bringing unprecedented attention to anti-gay harassment in schools and helping to write LGBT-inclusive anti-bullying policies. None of that could have been possible without Aaron and Jamie, grabbing the mantle of leadership and making the sacrifices necessary so what happened to them never happens again.

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Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Comments

  1. Dback says

    Aaron Fricke’s “Reflections of a Rock Lobster” should be REQUIRED reading for high schoolers. It had a huge impact on me, and I was a stammering mess when I met him. (Fortunately, he was very gracious, if somewhat shy.) And Jamie Nabozny is my hero–I actually sent money into his defense fund way back in ’96. These guys deserve some serious props from the gay community for daring to go where so few did back in the day. (And Fricke’s memoir should’ve been a film a long time ago.)

  2. Rick says

    One small note: police raids on bars were pretty much over by 1979; the disco era was in full swing and gay bars and discos were quite “out” and often quite posh by then–the era of nondescript establishments with “peepholes” in the doors located in tawdry, deserted parts of town that did not open until late at night were already very much a thing of the past.

  3. SteveTwo says

    Fricke is also somewhat sad considering that 30(!) years later there are still schools making a fuss about this

  4. UFFDA says

    Very sobering stuff. These boys humble me. I so hope that they are both happy people, with us and alive today. Thanks Ari.

  5. oakpope says

    How can a teacher just stand by and watch and condone such acts. It’s not even human. I’m appalled that it is so easy to drop so low.

  6. Continuum says

    Regarding Jamie’s story, I would have liked to know the specific school district, and the actual principal’s name.

    Why do these bigots get be anonymous instead of eternally shamed?

  7. daftpunkydavid says

    ari, very useful history and law lessons. also: welcome to columbia and to new york!!

  8. Caliban says

    It would be difficult to explain to a young gay person growing up now what the Aaron Fricke case meant to me at the time as a knew-I-was-gay 13 year old in a small town surrounded by farms. Other than when Phil Donahue occasionally devoted an episode of his talk show to the topic there was very little information about gay people at all and most of it was negative. No internet, obviously, no GSAs, and laws were still on the books in many (if not most) states that made gay (male) sex illegal. If those laws weren’t enforced you were still aware they existed, hanging over your head like Damocles sword. Maybe in big cities the police had begun leaving the gay bars alone but I can assure you that in the hinterlands they hadn’t yet gotten to that point; even years later the police used to cruise through the parking lot of the tiny gay bar and write down the license-plate numbers of the cars parked there.

    And then out of nowhere there was this HIGH SCHOOL student, just a few years older than me, daring to take his school to court and say “I’m here and I demand the right to take the person of my choice to the prom.”

    I look back at that time then look around now to see all the progress we’ve made, as back-and-forth and frustrating as that progress is, and the difference is amazing.

  9. Mikey Dallas says

    I came out in Dallas in 1979. The first big disco had opened that year. They had a colored lighting system to let you know when the police were raiding the place, because if you were seen making any contact with another male, you would be arrested and hauled to jail in the paddy wagon waiting outside. This went on for several years afterward.
    And then of course we had the Fort Worth rainbow lounge raid and the Atlanta Eagle in just the last few years, so police raids on gay clubs are not a thing of the past.

  10. Ted says

    Thank you very much, Ari. I always learn more about our community’s history from you, and your analysis never fails to distill complex topics into plain english.

  11. Rick says

    @Mikey Dallas Well, it’s Dallas, what do you expect? LOL.

    I was in college in the late 70’s, so my formative experiences were, first, in New Orleans–for a year–and then, in Chicago–for three years….and the idea of a police raid on a bar or disco in either of those cities, at least, never entered anybody’s mind by then. And then I moved to New York after college and certainly never experienced any police harrassment there.

    I also visited gay bars and discos in other areas during that time, some of them in the South, in places like Nashville and Mobile, Alabama and I don’t recall anybody being concerned about the cops in those places, either.

    I guess others had different experiences.

  12. says

    Jamie & Aaron – heroes of mine. Kids are on the front lines in the fight for glbt rights. Every day they face a gauntlet of abuse and misunderstanding with little support from adults (the adults are typically part of the problem). Enough can never be done for them by the grown-up gay community. It gets better? Yes. More or less. But the isolated acts of courage and perseverance kids engage in every day are at least as much a reason for a gay civil rights movement as any.

  13. StraightGrandmother says

    Ari, I enjoy all your articles but I particularly enjoyed this one.

    I enjoy so much learning about our legal system and court cases, and how a court case can shape our culture.

    Everybody is so quick to criticize Judges and no doubt some have it coming, but I hold them in high regard, especially after reading as many legal briefs and amicus briefs and rulings I have read since the start of the Prop 8 Trial.

    I don’t think the side that opposes Equal Civil Rights for sexual minorieties is near as well grounded or as knowledgeable on the legal system and the significant cases as the gays (and their supporters like me). I no longer have to look them up I have simply absorbed, Baker vs Nelson Bowers vs Hardwick, Rommer, Lawrence, City of Cleborn, and the Hippies out in California who finally got their food stamps. I now know about the three levels of judicial scrutiny, what binding decisions mean and understand what it takes to get one overturned.

    This has been quite the education for me and I thank the many bloggers and kind people who comment who have taught this all to me. It is much different now, now I can watch these court cases with a good level of understanding and appreciation. With that new knowledge it makes me so much more joyous when we win, because I now know how we won and why we won. Thanks Ari I wouldn’t miss one of your columns for the world.