Judge rules lesbian high-schooler's First Amendment rights violated

By the CNN Wire Staff
March 23, 2010 6:32 p.m. EDT

(CNN) -- A federal judge ruled Tuesday that a lesbian high school student's First Amendment rights were violated when school officials told her she could not attend her prom with her girlfriend, but also ruled that he would not order the school district to hold the event.

In his 12-page order, U.S. District Judge Glen H. Davidson ruled that Itawamba Agricultural High School's denial of 18-year-old Constance McMillen's request to wear a tuxedo to her prom was also a violation of her rights. "The record shows 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 prom with a same-sex date," Davidson wrote.

"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."

Read the judge's opinion (PDF)

When officials at the school in Fulton, Mississippi, told McMillen she could not take her girlfriend to the prom or wear a tuxedo at the event, the senior went to the American Civil Liberties Union, which demanded the school change its policy. In response, the Itawamba County School District canceled the prom.

But Davidson denied a motion for an injunction filed by McMillen against the school district's superintendent, the school's principal and its assistant principal asking the court to order that the prom be reinstated.

"Defendants testified that a parent-sponsored prom, which is open to all IAHS students, has been planned and is scheduled for April 2, 2010," Davidson wrote. "Though the details of the 'private' prom are unknown to the court, defendants have made representations, upon which this court relies, that all IAHS students, including the plaintiff, are welcome and encouraged to attend."

Requiring school officials "to step back 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."

He added that issuing an injunction "would be disruptive to the efforts of the community and would not be in the public's interest."

Still, the ACLU called the decision a victory.

"It vindicates Constance's rights," said Christine Sun, senior counsel with the ACLU's lesbian, gay, bisexual and transgender project. "It sets a legal precedent for gay and lesbian students all over the country that they have the right to bring a same-sex date to the prom and also to wear gender-nonconforming clothes to the prom. We were looking for a ruling that what the school did was violate her rights."

School board attorney Michele Floyd said the school district was also pleased with the decision.

She said the parent-sponsored event, which may be called a ball instead of a prom, is to be held on April 2 in Tupelo, 19 miles away.

But the ACLU's Sun said McMillen had not received an invitation. "We haven't heard anything about this private prom other than what this school district has told us," she said. "It remains to be seen whether she will be able to attend the private prom."

The case is going forward on a damages claim and the ACLU's request for attorneys' fees, she said. "She got what she wanted, and now it's just a question of what the damages might be in her case."

"I never thought the school would try to cancel the prom and hurt everyone just to keep me and my girlfriend from going together," McMillen said last week in an ACLU news release. "A lot of people have made really generous offers to pay for a prom somewhere else, which I really appreciate. But all I've ever wanted was to be able to just go to my own school's prom with my girlfriend."

At the center of the lawsuit is a February 5 memorandum from the school to students that said prom dates must be of the opposite sex.

Superintendent Teresa McNeece also told McMillen that she and her girlfriend could be ejected from the prom if other students complained about their presence, according to the documents.