Berman & Asbel, LLP

Federal court: school district violated lesbian student's rights by canceling prom

A federal court in Mississippi has issued a significant ruling that a school district violated a lesbian student's rights when it canceled the prom after the student requested to bring her girlfriend to the prom and to wear a tuxedo at the event.  In the case of Constance McMillen v. Itawamba County School District, the court ruled that Constance's rights were violated though the court declined to issue an injunction against the school district. You can read the opinion by clicking here.

First the background.  Constance is a senior at the Itawamba Agricultural High School in Fulton, Mississippi.  She has been openly identified as a lesbian since she was in 8th grade.  As is common across America, the high school had a prom scheduled during the spring.  The school district has a policy that includes provisions that students attending the prom may only bring a date who is of the opposite sex and that girls must wear dresses.  Constance went to school officials and asked for permission to bring her girlfriend, who is also a student at the same school, as her date and to wear a tuxedo.  She explained that to be forced to bring a boy as her date and to wear clothing traditionally associated with female gender would be to deny her true identity.  The school district refused Constance's request and told her that she was not allowed to show up with her girlfriend (though they could both come if they came with boys) and that if they slow danced together and anyone complained, they would be thrown out of the prom.

Constance then sought the assistance of the American Civil Liberties Union (ACLU) which took up her case.  The ACLU sent a letter to the school district demanding that it accept Constance's request about her date and her clothing.  The school board held a special meeting and decided instead to cancel the prom altogether and to publicly request that private individuals organize a prom for the junior and senior students.

Constance, through her  attorneys, filed suit against the school district seeking an injunction ordering the school district to reinstate the prom and to allow her to bring her girlfriend as her date and to allow her to wear the clothing she wished.  The United States District Court for the Northern District of Mississippi Eastern Division denied the request for an injunction but did find that the school district violated Constance's rights.  The court engaged in a four-part analysis of determining whether to issue an injunction:

1. The court found that Constance had a protected First Amendment right which the school district violated.  The court held that the act of bringing a date of the same sex and wearing clothing not traditionally associated with women were acts of communication of viewpoint which were protected by the First Amendment of the United States Constitution.  The court cited other instances of conduct such as the U.S. Supreme Court decision wearing black armbands to protest the Vietnam War back in the 1960s was a form of protected political speech.  The court found that the school district canceled the prom for the express purpose of preventing Constance from exercising her First Amendment rights.

2. The court found that the school district was irreparably harming Constance's rights by canceling the prom.

3. The court found that Constance's First Amendment rights outweighed the school district's stated interest in effective governance of the schools and providing public education to all students.  The Court found that there was no evidence in the record to support the district's claim that allowing Constance to attend the prom with her girlfriend and to wear a tuxedo would harm the school district's interests.

4.  The court did not, however, issue an injunction because it found that doing so would not serve the public interest.  By the time the court was making its ruling, a privately sponsored prom had already been organized which will take place on April 2.  The court was satisfied that all junior and senior students, including Constance, would be permitted to attend this prom without the restrictions imposed by the school district previously.  To force the school district to reinstate the original prom at this late date would cause confusion and create a waste of the efforts of the private individuals who organized the April 2 prom.

Having said that, however, the court stated that Constance's case is still a live legal action and the court gave Constance leave to amend her complaint against the school district to seek monetary damages and other relief to compensate for the violation of her rights.

Although  an injunction did not issue, this is a very significant ruling.  A federal court has ruled that the act of a same-sex couple attending a public event as a couple is protected by the First Amendment.  This case could have future implications in other cases such as lawsuits challenging the federal Defense of Marriage Act since it can be argued that there is a right under the First Amendment to be recognized as married, particularly where a state has given such a couple a marriage license.

As for what happens next in Constance's case, it would appear that the next step is up to her.  There does not seem to be a basis for the school district appeal at this point since they technically won on the decision to not grant an injunction.  If Constance decides to proceed with her case and seek money damages, then further decisions by this court and appeals could follow.  Constance has gained wide-ranging support including over 400,000 fan supporters on a Facebook page called Let Constance Take Her Girlfriend to Prom! dedicated to her cause.

Meanwhile, this case may already have started ripple effects elsewhere.  According to a report from Georgia, Derrick Martin, a senior at Bleckley County High School sought permission to bring his boyfriend as his date to the prom. (Permission is required regarding any date who is not a student in that county).  At first, the principal told him no.  Then last week, the principal reversed herself and indicated that since there was no specific policy against this, Derrick could bring whomever he wanted as his date for the prom.

More interesting developments are sure to follow.  In the meantime, best wishes to all prom-goers for a fun and safe celebration.

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