Mississippi School District Violated First Amendment Rights of Lesbian High School Student

U.S. District Judge Glen H. Davidson has ruled that the Itawamba County (Mississippi) School District violated the First Amendment rights of Constance McMillen, a student at Itawamba Agricultural High School, by refusing her request to bring a female date to the senior prom and to wear a tuxedo rather than a dress to the event, but Davidson refused to order the School District to hold the prom, which it had cancelled rather than accede to McMillen’s request. McMillen v. Itawamba County School District, No. 1:10CV61-D-D (U.S.Dist.Ct., N.D. Miss., March 23, 2010).

As soon as school officials had responded negatively to McMillen, she contacted the American Civil Liberties Union, which sent the District a letter demanding that it change its policy and allow McMillen to attend the April prom with her same-sex date, wearing a tuxedo. The letter demanded a response by March 10.

The School Board called a special meeting for March 10 to determine how to respond to the ACLU letter. After the meeting, the Board issued a press release, announcing that it was canceling the prom "due to the distractions to the educational process cause by recent events," and stated its "hope that private citizens will organize an event for the juniors and seniors." The Board claimed that its decision was taken for the "education, safety, and well being of our students."

While a group of parents got organized to sponsor a private prom, the ACLU went to court, seeking an order that the official prom be held as originally scheduled and that McMillen be allowed to attend, tuxedoed, with her same-sex date. The case was assigned to Judge Davidson, who scheduled a hearing for March 22. At the hearing, it was represented to Davidson that the private prom being organized by parents would be open to all students and their dates.

Davidson issued his opinion the next day, finding for McMillen on every relevant point of law save one: that it would serve the public interest to order the Board to revive the official prom.

Davidson’s specific task in ruling on the ACLU’s motion for preliminary injunctive relief was to determine whether the plaintiff had satisfied a four-part test used by courts to determine such motions. In order to get the injunction, McMillen would have to show (1) a substantial likelihood that she would be successful on the merits of her legal claim, (2) a substantial threat that she would suffer "irreparable injury" if the injunction was denied, (3) that the injury to her would outweigh any injury that an injunction might cause to the School Board, and (4) that granting the injunction would not "disserve the public interest."

Davidson found that McMillen easily satisfied the first three tests.

Ironically, one of the earliest gay rights court victories, a 1980 ruling by a federal district court in Rhode Island, dealt with this very situation, a decision by school officials to reject a request by a gay high school student to bring his boyfriend to the prom as his date. The case of Aaron Fricke resulted in one of the earliest decisions on the First Amendment rights of gay high school students, with the court finding that young Aaron’s "belief that he had ‘a right to attend and participate just like all other students and that it would be dishonest to his own sexual identity to take a girl to the dance’ coupled with the fact that he felt ‘his attendance would have a certain political element and would be a statement for equal rights and human rights’ is ‘the exact type of conduct’ that ‘can be considered protected speech,’" wrote Judge Davidson, quoting from the 1980 ruling. Davidson also noted federal appellate authority finding that a college’s ban on social activities by a gay student group on a campus violated the First Amendment.

"According to the clearly established case law," wrote Davidson, "Defendants have violated her First Amendment rights by denying Constance’s request to bring her girlfriend as her date to the prom." He also found that the choice of clothing involves expressive conduct. "The record shows that Constance has been openly gay since eighth grade and she intended to communicate a message by wearing a tuxedo and to express her identity through attending the prom with a same-sex date," wrote Davidson.

"The Court finds this expression and communication of her viewpoint is the type of speech that falls squarely within the purview of the First Amendment. The Court is also of the opinion that the motive behind the School Board’s cancellation of the prom, or withdrawal of their sponsorship, was Constance’s requests and the ACLU’s demand letter sent on her behalf. For all of the foregoing reasons," Davidson concluded, "the Court finds that Constance’s First Amendment rights have been violated and therefore, she has established, by a preponderance of the evidence, a substantial likelihood of success on the merits with respect to her First Amendment claim."

The second and third tests were easily met as well, as courts have held that any denial of First Amendment rights inflicts an irreparable injury, which is legal parlance for an injury that cannot be fully compensated after the fact by an award of damages or other relief, and Davidson found that "the threat of injury to Constance clearly outweighs the threat of injury that injunctive relief may cause Defendants." Responding to the School Board’s claim that they had cancelled the prom in order to avoid distraction and disruption to their educational program, Davidson said that nothing the Board presented to the court provided "any evidence that hosting the prom or allowing Constance to attend in a tuxedo with her girlfriend has or will disrupt Defendants’ ability to govern local schools or its education program," so no relevant harm to the Board was shown.

However, when it came to the final test, Davidson found that it would disserve the public interest to order the Board to hold the official prom. He noted that the Board offered testimony at the hearing that the parent-sponsored prom was scheduled for April 2 and that it is "open to all IAHS students." Under the circumstances, Davidson concluded that "requiring Defendants to back-step into a sponsorship role at this late date would only confuse and confound the community on the issue. Parents have taken the initiative to plan and pay for a ‘private’ prom for the Juniors and Seniors of IAHS and to now require Defendants to host one as it had originally planned would defeat the purpose and efforts of those individuals."

Davidson was also leery of the court taking on any sort of supervisory role over the planning and holding of a high school prom, and thought a court order at this point would "be disruptive to the efforts of the community and would not be in the public’s interest," so he declined to issue such an order.

However, he pointed out, having found that McMillen suffered a violation of her First Amendment rights by the School Board, "this case remains active and Plaintiff, if she so desires, will be permitted to amend her Complaint to seek compensatory damages and any other appropriate relief." This is an open invitation for the ACLU to pursue a settlement with the School Board that would include a prospective change in its policies as well as some compensation to McMillen for the violation of her rights. Since the court held that the First Amendment rules here are "clearly established," the District could not plausibly claim any immunity to a damages claim, which should be a strong incentive for them to negotiate a settlement.

After the court’s decision was issued, the ACLU announced that McMillen plans to attend the parent-sponsored prom with her date, and also to attend a special gay-friendly statewide senior prom to be held in Tupelo on May 8 under the sponsorship of the Mississippi Safe Schools Coalition.

McMillen is represented in the lawsuit by Kristy Bennett, Legal Director of the ACLU of Mississippi, and Christine P. Sun, a senior counsel with the ACLU National LGBT Project, with assistance from volunteer attorneys Norman C. Simon and Joshua Glick from the law firm of Kramer Levin Naftalis & Frankel LLP, and attorney Alysson Mills of New Orleans.