. RICHARD B. LYNCH, in his official capacity as Principal of Cumberland High School Civ. A. No. 80-214 AARON FRICKE v. RICHARD B. LYNCH, in his official capacity
as Principal of Cumberland High School

Civ. A. No. 80-214

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE
ISLAND

491 F. Supp. 381; 1980 U.S. Dist. LEXIS 11770

May 28, 1980



CORE TERMS: dance, first amendment, escort, message, disturbance, attend, male, senior, homosexual,
reception, free speech, disruption, free expression, violence, classification, materially, attendance, expressive,
interfere, violent, high school, homosexuality, discipline, companion, teachers, prom, girl, suspect class,
suppression, classroom

COUNSEL: [**1]

Lynette Labinger, Providence, R. I., John P. Ward,
Boston, Mass., for plaintiff.

V. James Santaniello, Providence, R. I., for defendant.

OPINIONBY: PETTINE

OPINION: [*382]



OPINION

Most of the time, a young man's choice of a date for
the senior prom is of no great interest to anyone other
than the student, his companion, and, perhaps, a few of
their classmates. But in Aaron Fricke's case, the school
authorities actively disapprove of his choice, the other
students are upset, the community is abuzz, and out-of-
state newspapers consider the matter newsworthy. n1 All
this fuss arises because Aaron Fricke's intended escort is
another young man. Claiming that the school's refusal to
allow him to bring a male escort violates his first and
fourteenth amendment rights, Fricke seeks a preliminary
injunction ordering the school officials to allow him to
attend with a male escort.

n1. See the New York Times of Wednesday, May
21, and the Boston Globe of Tuesday, May 20 and
Wednesday, May 21.

Two days of testimony [**2] have revealed the
following facts. The senior reception at Cumberland
High School is a formal dinner-dance [*383]


sponsored and run by the senior class. It is held shortly
before graduation but is not a part of the graduation
ceremonies. This year the students have decided to hold
the dance at the Pleasant Valley Country Club in Sutton,
Massachusetts on Friday, May 30. All seniors except
those on suspension are eligible to attend the dance; no
one is required to go. All students who attend must bring
an escort, although their dates need not be seniors or
even Cumberland High School students. Each student is
asked the name of his date at the time he buys the tickets.




The principal testified that school dances are
chaperoned by him, two assistant principals, and one or
two class advisers. They are sometimes joined by other
teachers who volunteer to help chaperone; such teachers
are not paid. Often these teachers will drop in for part of
the dance. Additionally, police officers are on duty at
the dance. Usually two officers attend; last year three
plainclothes officers were at the junior prom.

The seeds of the present conflict were planted a year
ago when Paul Guilbert, [**3] then a junior at
Cumberland High School, sought permission to bring a
male escort to the junior prom. The principal, Richard
Lynch (the defendant here), denied the request, fearing
that student reaction could lead to a disruption at the
dance and possibly to physical harm to Guilbert. The
request and its denial were widely publicized and led to
widespread community and student reaction adverse to
Paul. Some students taunted and spit at him, and once
someone slapped him; in response, principal Lynch
arranged an escort system, in which Lynch or an
assistant principal accompanied Paul as he went from
one class to the next. No other incidents or violence
occurred. Paul did not attend the prom. At that time
Aaron Fricke (plaintiff here) was a friend of Paul's and
supported his position regarding the dance.
This year, during or after an assembly in April in
which senior class events were discussed, Aaron Fricke,
a senior at Cumberland High School, decided that he
wanted to attend the senior reception with a male
companion. Aaron considers himself a homosexual, and
has never dated girls, although he does socialize with
female friends. He has never taken a girl to a school
dance. [**4] Until this April, he had not "come out of
the closet" by publicly acknowledging his sexual
orientation.

Aaron asked principal Lynch for permission to bring a
male escort, which Lynch denied. A week later (during
vacation), Aaron asked Paul Guilbert who now lives in
New York to be his escort (if allowed), and Paul
accepted. Aaron met again with Lynch, at which time
they discussed Aaron's commitment to homosexuality;
Aaron indicated that although it was possible he might
someday be bisexual, at the present he is exclusively
homosexual and could not conscientiously date girls.
Lynch gave Aaron written reasons for his action; n2 his
[*384] prime concern was the fear that a disruption
would occur and Aaron or, especially, Paul would be
hurt. He indicated in court that he would allow Aaron to
bring a male escort if there were no threat of violence.

n2. Principal Lynch sent the following letter to
Aaron's home and handed it to him in person:

Dear Aaron:

This is to confirm our conversation of Friday, April
11, 1980, during which I denied your request to
attend the Senior Reception on May 30, 1980 at the
Pleasant Valley Country Club in Sutton,
Massachusetts, accompanied by a male escort.

I am denying your request for the following
reasons:

1. The real and present threat of physical harm to
you, your male escort and to others;

2. The adverse effect among your classmates, other
students, the School and the Town of Cumberland,
which is certain to follow approval of such a request
for overt homosexual interaction (male or female) at
a class function;

3. Since the dance is being held out of state and this
is a function of the students of Cumberland High
School, the School Department is powerless to insure
protection in Sutton, Massachusetts. That protection
would be required of property as well as persons and
would expose all concerned to liability for harm
which might occur;

4. It is long standing school policy that no
unescorted student, male or female, is permitted to
attend. To enforce this rule, a student must identify
his or her escort before the committee will sell the
ticket.

I suspect that other objections will be raised by
your fellow students, the Cumberland School
Department, Parents and other citizens, which will
heighten the potential for harm.

Should you wish to appeal my decision, you may
appeal to the Superintendent of Schools, Mr. Robert
G. Condon. You will be entitled to a hearing before
him or his designee. If you are not satisfied with his
decision, you may appeal to the Cumberland School
Committee. You are entitled to be represented by
counsel, to examine and cross examine witnesses and
to present witnesses on your own behalf. Further
procedural details may be obtained from the
Superintendent's office.

If you have any further questions, please feel free
to contact me. I am sending a copy of this letter to
your parents in the event they wish to be heard.

Sincerely,

Richard B. Lynch

Principal

[**5]

After Aaron filed suit in this Court, an event reported
by the Rhode Island and Boston papers, a student shoved
and, the next day, punched Aaron. The unprovoked,
surprise assault necessitated five stitches under Aaron's
right eye. The assailant was suspended for nine days.
After this, Aaron was given a special parking space
closer to the school doors and has been provided with an
escort (principal or assistant principal) between classes.
No further incidents have occurred.

This necessarily brief account does not convey the
obvious concern and good faith Lynch has displayed in
his handling of the matter. Lynch sincerely believes that
there is a significant possibility that some students will
attempt to injure Aaron and Paul if they attend the dance.
Moreover, Lynch's actions in school have displayed a
concern for Aaron's safety while at school. Perhaps one
cannot be at all sure a totally different approach by
Lynch might have kept the matter from reaching its
present proportions, but I am convinced that Lynch's actions have stemmed in significant part from a concern
for disruption.

Aaron contends that the school's action violates his first
amendment right of association, his [**6] first
amendment right to free speech, and his fourteenth
amendment right to equal protection of the laws. (The
equal protection claim is a "hybrid" one that he has been
treated differently than others because of the content of
his communication.) n3

n3. The plaintiff has not advanced the plausible
arguments that homosexuals constitute a suspect
class, see L. Tribe, American Constitutional Law
(1978) at 944-45 n. 17, or that one has a
constitutional right to be a homosexual, see, e.g.,
Acanfora v. Board of Education, 359 F. Supp. 843