This is the story of Constance McMillen a lesbian high school senior whose First Amendment speech rights were violated by the school officials of Itawamba Agricultural High School.
This story begins with a memorandum that IAHS issued to all its juniors and senior on Feb. 5. According to this memo, the juniors and seniors of IAHS could only attend the prom with a date of the opposite sex.
McMillen was an openly gay senior at the school. A few months before, she had asked her girlfriend, a fellow student at the school, to attend prom with her. Reading the memo, she realized that her prom plans may be in jeopardy. As any rational high school senior would do, McMillen contacted the school officials. She told them that she planned on attending the event with her girlfriend, that she planned on wearing a tuxedo and that this was all important to her because she wanted her friends to know that gay teenagers have the same rights as their heterosexual counterparts, and that women do not have to wear dresses and conform to traditional views of what is “proper.”
McMillen’s request was denied. The only way she could attend would be if both her girlfriend and McMillen wore dresses and had two males as their dates. Further, McMillen was told not to attempt to slow dance with her girlfriend, and that if they “made anyone uncomfortable,” they would be “kicked out” of the prom.
Perhaps the school thought that McMillen would take the injustice lying down. They were wrong. McMillen contacted the American Civil Liberties Union. The ACLU sent the Itawamba County Board of Education a letter demanding that they allow McMillen to attend the prom as she wished: wearing a tuxedo alongside her girlfriend. The school district’s response was swift. The official school prom was canceled.
On March 11 McMillen filed a complaint in the Northern District of Mississippi, Eastern Division. Part of the requested relief was an injunction forcing the school to reinstate its prom and open it up to everyone, including McMillen, no matter whom they decided to bring as their dates. To get an injunction, McMillen had to establish the following four elements: “(1) a substantial likelihood of success on the merits, (2) a substantial threat that the plaintiff will suffer irreparable injury if the injunction is denied, (3) that the threatened injury to the plaintiff outweighs any damage that an injunction might cause the defendant and (4) that granting the injunction will not disserve the public interest.”
As the court’s opinion stated, McMillen had a convincing, “slam dunk” case of infringement of First Amendment speech rights. That took care of the first element. The second element was easily met because the Supreme Court has previously proclaimed that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” The third element, a balance between the harm to McMillen if the injunction was denied and the harm to IAHS if the injunction was granted was just as easily met. While McMillen faced the loss of her First Amendment rights to express her social and political viewpoints, the best the school could argue as a possible harm was that the prom would “disrupt its ability to govern local schools.” The judge ruled that the third element was thus met.
The problem that the court saw with granting an injunction was in the fourth element, public interest. Apparently the parents of IAHS students had chipped in to hold a private “inclusive” prom, to which McMillen was allowed to come with her girlfriend. The court stated that to grant an injunction would be “disruptive to the efforts of the community.” The court concluded that “planning and overseeing a prom” was not its job.
Little did the court know that along with McMillen, it was the butt end of a joke. The “inclusive prom” that the parents paid for was attended only by McMillen, her date and a handful of other students (including two students who had “learning difficulties”). On the same night, there was a different prom party, a prom party that the rest of the junior and senior classes of IAHS attended without McMillen’s knowledge.
The court’s decision not to grant an injunction because of the alternate “inclusive prom” was wrong. To be sure, McMillen’s First Amendment rights were infringed. Perhaps we would have a different result today if the court decided not to minimize its task by characterizing it as “planning and overseeing a prom.” After all, hasn’t the court already “overseen what is fit to publish in a high school newspaper” in Hazelwood School Dist. v. Kuhlmeier and “overseen what is a proper jacket to wear” in Cohen v. California? When it comes to protecting First Amendment rights there is no task that is too menial for courts to perform. After all, they are the last line of defense for the “discrete and insular minorities” to get justice.
Original Author: Christian A. Fundo