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LGBT Litigator

Constance McMillen: Extending the Rights of LGBT Students

By Alysson Mills – January 6, 2011


By now, few people haven’t heard of Constance McMillen. But this time last year, she was a stranger to fame. A senior at Itawamba Agricultural High School in Fulton, Mississippi, Constance wasn’t so different from her classmates. Her distinguishing trait was that she is gay. But when her school told her that she could not take her girlfriend to the senior prom, nor wear a tuxedo to it, she had the good sense to take a stand. Unfortunately for all involved, her school also took a stand—by canceling the prom altogether.


With less than a month to save the prom, Constance, aided by the American Civil Liberties Union (ACLU), sued her school in the U.S. District Court for the Northern District of Mississippi, alleging the school’s actions violated her First Amendment rights. Ruling on her motion for a preliminary injunction, Judge Glen Davidson agreed that the right of gay and lesbian students to bring same-sex dates to proms “falls squarely within the purview of the First Amendment.” Attending a prom with a same-sex date and wearing gender-nonconforming clothing to it, he explained, are forms of expression and therefore protected by the First Amendment: “Constance has been openly gay since eighth grade and she intended to communicate a message by wearing a tuxedo to express her identity through attending prom with a same-sex date. . . .
[T]he Court finds that Constance’s First Amendment rights have been violated.” McMillen v. Itawamba County Sch. Dist., 1:10-cv-61, 2010 WL 1172429 (N.D. Miss. Mar. 23, 2010).


Judge Davidson nevertheless stopped short of ordering the school to host the prom as planned. Relying on the school’s promise that parents would sponsor a “private” prom that Constance and her girlfriend could attend, he concluded that an injunction forcing the school to host an “official” prom was unnecessary.


Constance’s public life could have ended there, but in fact it was just getting started. Parents who were planning the promised “private” prom didn’t want Constance there; when pressed as to why Constance had trouble obtaining a ticket, they, too, canceled their event. The school thus found itself in a bind, with not a lot of time to spare. Scrambling, its superintendent and attorney privately met with parents. The next day they announced that arrangements had been made: A last-minute prom would be held on Friday night, at the local country club.


What followed was well publicized. When Constance arrived at the country club on Friday night, only seven students were there. The fact that her classmates attended a secret prom at another location oozed out over the weekend. By the next week, news of the “sham prom” incident had gone viral.


Could life get any worse for Constance McMillen? Yes. As the school drew the scorn of outsiders, many local residents directed their anger at her. Preachers condemned homosexuality in sermons, some televised, that referred to her by name. Letters to the editor called her an attention-grabber. Rumors about her swelled, and her peers routinely accused her of ruining their school year. Among the many text messages she received, one stated, “I don’t know why you come to this school because no one likes your gay ass anyways.” Another asked, “Are you going to ruin graduation too?”


Due to the hostility at home, Constance didn’t have a chance to ruin graduation. With only a few weeks left in the school year, she transferred to another school district. In June, her former school agreed to pay her $35,000 and consented to an entry of judgment against it. In October, Judge Davidson ordered the school to pay $81,000 in legal fees to Constance’s attorneys.


It’s easy to reflect on Constance’s experience now and overlook its legal import. The events that unfolded were so reprehensible that they have tended to overshadow the legal precedent Constance made. For a lot of Americans, the right of gay and lesbian students to take a same-sex date to a prom seems obvious. Yet, when Constance made the decision to fight her school, legal victory was far from certain. No court in Mississippi (nor even in the Fifth Circuit) had ever held that gay and lesbian students have a First Amendment right to express their sexual orientation. And only one federal court—the U.S. District Court for the District of Rhode Island, in 1980—had held that gay and lesbian students have a right to bring same-sex dates to school-sponsored proms. But in that case, the school did not cancel its prom altogether. In Constance’s case, the school district could (and did) argue that it canceled its prom because it had no obligation to host one in the first place. Arguably, Judge Davidson could have disposed of Constance’s case on that basis. But he did not, and today there is law—in Mississippi of all places—that holds that gay and lesbian students have a First Amendment right to attend school proms with same-sex dates.


Thanks to Constance’s resolve, the legal rights of lesbian, gay, bisexual, and transgender (LGBT) students everywhere are stronger. And thanks to her example, LGBT youth will feel more confident challenging the discriminatory acts of schools in courts. In Mississippi, a new LGBT rights lawsuit is already under way: In August, Ceara Sturgis filed an action against her high school after it cut her from its yearbook because she wore a tuxedo in her senior portrait. Ceara argues that schools violate the Equal Protection Clause and Title IX when they discriminate on the basis of gender nonconformity. If successful, her lawsuit will continue what Constance and others started—and will help make schools everywhere less hostile environments for LGBT students.


Keywords: litigation, LGBT, Constance McMillen, school, prom


Alysson Mills is an associate at Fishman, Haygood, Phelps, Walmsley, Willis & Swanson, LLP, in New Orleans, Louisiana. She served as counsel in Constance’s case with Christine Sun and Kristy Bennett, attorneys for the ACLU, and Norman C. Simon, Joshua Glick, and Jason Moff of Kramer, Levin, Naftalis & Frankel, LLP.


 
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