IBCoupe wrote:
How is showing up to prom with a particular person not expression?
A person's presence is typically not an expression. A person wearing a tuxedo is. The fact that we're arguing over this nonsense is proof that the judge stretched the use of the first amendment like a piece of Bubble Yum over a timpani to suit his whims.
The first amendment is intended to protect people
from being censored by government but it
does not guarantee a government-sponsored venue for expression. One has the right to purchase a hosting service and publish a blog -- the first amendment prevents government from shutting down the blog. One is NOT entitled to a government-sponsored web hosting service for private citizens to share user-created content.
Likewise, the second amendment protects the individual right to bear arms. It does NOT guarantee that the government will provide shooting ranges and weapons for public use. A person is, however, free to purchase firearms of their own.
In the case of a public school -- note that almost all public schools are funded by the federal government between 5% and 10% of total funding -- the government is providing an activity venue. It has the right, typically, to enforce general codes of conduct on its premises for various sporting and social activities, including attire.
I'm aware of the Tinker case -- we covered it in Comm Law a couple years ago. Speech at school is a tricky subject full of exceptions, but a girl wearing a tux is not the same as political speech. Its merely a disruption of a formal event. The girls could still attend prom in dresses of their choosing (though, the problem of event cancelation and exclusion likely would remain a valid issue).
This school explicitly adopted a rule that voided its freedom to exclude students from activities based on sexual orientation. The requirement of a dress for female participants is NOT an act of unfair discrimination based on sexual orientation, as being a lesbian is NOT the equivalent of being male.
This is the case of a public school failing to uphold its own written anti-discrimination/anti-exclusion/anti-harassment policy, enough to warrant a suit. All the US district court did was declare dress codes for formal events at school unconstitutional. Its a crock of logically damaged feel-good bull that doesn't address the core issue at all. There's no question that the suit was valid and the settlement was fair, but the judge's opinion is wrong.
It is unlikely that we will ever see a uniform set of clear standards for free speech in public schools.
