The 4th U.S. Circuit Court of Appeals just won't let Rebecca Willis dance off into the sunset, again reviving the dirty dancer's suit against a North Carolina town that banned her from a nightspot seven years ago.

Willis has a triable equal protection claim, the court said, based on the theory that the Town of Marshall treated her differently than other patrons of Friday night concerts at its community center who danced and dressed appropriately. The town cited her “sexually provocative” gyrations in banning her from the Marshall Depot.

“[A] reasonable jury could conclude that the Town’s actions, rather than being guided by concern for the public welfare, were actually motivated by a conscious desire to single her out for undeserved punishment,” the court ruled in an unpublished opinion.

U.S. District Judge Lacy H. Thornburg had summarily dismissed the case for the second time in April 2007, expressing the hope that it would finally be over after five years of litigation that included an earlier appeal.

“There comes a point in the life of every litigation when the parties are well advised to move forward rather than continuing to harangue about past practices,” he said. “That point has been reached in this proceeding.”

But the 4th Circuit again intervened on Willis's behalf and reversed Thornburg. “That just tickles me to death,” Willis, 63, told the Asheville Citizen-Times. “I finally get my day in court. The town has persecuted me and took my rights away. I hope to get justice out of this.”

The town had submitted affidavits that Willis “and her partner would hunch on the floor [at the Depot], simulating sexual intercourse.” But several patrons identified by the town as witnesses were unable to corroborate that testimony in depositions.

“The record contains evidence that Willis’s dancing at the Depot was appropriate and not unlike other attendees,” the appeals court said. As for her attire,

Although the record does have evidence that Willis’s skirts were so short that her underwear could be seen when she bent over while dancing, it also includes evidence that Willis “dressed no differently than any other women” at the Depot, and that people sometimes could see the underwear of other women who were dancing at the Depot.

Willis also sued the town for violating her First Amendment rights. In October 2005, the 4th Circuit agreed with Thornburg that Willis's gyrations were not “constitutionally protected expressive activity,” but reinstated the equal protection claim. Willis v. Town of Marshall, 426 F.3d 251.

By Matthew Heller
5/1/08