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Constance McMillen, an 18-year-old senior at Itawamba County Agricultural High School, speaks to one of her legal team in the federal courthouse in Aberdeen Monday for a hearing regarding the ACLU's preliminary injunction to force the prom at her high school. (AP Photo/Rogelio V. Solis)
U.S. District Judge Glen H. Davidson refused the American Civil Liberties Union's demand to force the Itawamba County school district to put on the April 2 prom. However, he said canceling it did violate 18-year-old Constance McMillen's rights and that he would hold a trial on the issue.
That would come too late for the prom to be salvaged at Itawamba Agricultural High School. Still, Kristy Bennett, ACLU Mississippi legal director, called the decision a victory.
The American Civil Liberties Union sued the district to force it to put on the prom and allow McMillen to bring her girlfriend and wear a tuxedo. School officials said in U.S. District Court this week that they decided to cancel it because McMillen's challenge to the rules had caused disruptions.
The judge noted that McMillen has been openly gay since she was in the eighth grade and that she intended to communicate a message by wearing a tuxedo and escorting a same-sex date.
"The court finds this expression and communication falls squarely within the purview of the First Amendment," Davidson said.
As for McMillen, she said she was happy about the ruling but doesn't know what to expect when she returns to school. She attended classes a day after the March 10 decision to cancel the prom. But she said the hostility and comments from other students led her to miss school. She skipped class on Tuesday to go to the doctor and the fight is taking a toll, she said.
"My nerves are shot," she said.
District officials said in a statement that they were ready to get back to educating students.
Davidson said a private prom parents are planning will serve the same purpose as a school-sponsored one. He wrote that "requiring defendants to step back into a sponsorship role at this late date would only confuse and confound the community on the issue."
McMillen isn't sure if she'll go to the dance.
"I'm going to school tomorrow (Wednesday) and will get a feel of how everybody feels about me. That will help me make my decision about whether I'm going to the private prom," McMillen said. "I want to go because all my junior and senior class will be there, but I don't want to be somewhere I'm not welcomed."
Ben Griffith, the school district's attorney, said his clients were pleased with the ruling.
"What we're looking at now is the fact that the case is still on the docket for a trial on the merits," Griffith said.
McMillen first approached school officials about bringing her girlfriend in December, and again in February. Same-sex prom dates had been banned in the past, but she had hoped school officials would grant her request.
"I thought maybe the policy had been in place for a different reason," McMillen testified at a hearing on the ACLU lawsuit. "I wanted to let them know how it made me feel. I felt like I couldn't go to the prom."
She was told two girls couldn't attend together and she wouldn't be allowed to wear a tuxedo, court documents show. The ACLU issued a demand letter earlier this month and the district responded by canceling the event. McMillen, who lives with her grandmother and has a 3.8 grade point average, has kept her 16-year-old girlfriend out of the spotlight at the request of the girl's parents.
District officials said they felt not hosting the prom was the best decision "after taking into consideration the education, safety and well being of our students." Superintendent Teresa McNeece said it was "a no-win situation."
The 715-student high school is located in Fulton, a town of about 4,000 in rural, north Mississippi. The entire county school district has 3,588 students.
The case is typical of what's happening in schools across the country, said Charles Haynes, senior scholar for The Freedom Forum First Amendment Center.
"This case is different because this is not just dress, it is a higher claim of personal identity," Haynes said. "I think that if the student prevails in this case, it will send a message to school districts that they need to accommodate students now who are openly gay and lesbian and want to participate in student activities," Haynes said.
Her case has become a cause celebre.
She has appeared on the "The Early Show," ''The Wanda Sykes Show" and "The Ellen DeGeneres Show" to talk about how she is fighting for tolerance. DeGeneres presented her with a $30,000 college scholarship from Tonic, a digital media company. A Facebook page set up by the ACLU for McMillen has over 400,000 fans.
Read more in Wednesday's NEMS Daily Journal newspaper.
The cancellation of the prom was done only as an attempt to throw public opinion against the girl, which seems to have worked on the feeble-minded bigots here.
The comments about the girl knowing she was gay since the eighth grade are beyond inane. I knew I was hetero from the fifth grade. So what? Gays are usually a little older as they often refuse to accept what they are until it can no longer be rejected. So what?
Mississippi ranks #1 in teenage pregnancy. Yet, your priorities are centered around whether a girl takes another girl to the high school prom.
Wow, Mississippi! I'm sure you're making Jefferson Davis very proud.
I was reminded of a case some years back where this Judge granted the ACLU "Judicial Immunity" in a case where they were being sued. Last I knew only Judges were entitled to that under strict guidelines and I don't think the ACLU has attained that status. By no means is anyone I know of demonizing, just exercising 1st amendment rights to scrutinize actions.
As already ruled in the appellant courts....Although students in public schools have First Amendment rights, this
“constitutional protection is not absolute.” Canady, 240 F.3d at 441. “[T]he constitutional
rights of students in public school are not automatically coextensive
with the rights of adults in other settings.” Morse v. Frederick, 127 S. Ct. 2618,
2621 (2007) (citation omitted).
The Canady decision has been followed by at least 3 other Federal Appeals Courts. “[F]ederal courts should defer to
school boards to decide . . . what constitutes appropriate behavior and dress in
public school.” Littlefield, 268 F.3d at 287. The determination of where to draw
lines on dress code decisions “properly rests with the school board, rather than
with the federal courts.” Hazelwood, 484 U.S. at 266 (citation, brackets, and internal
quotation marks omitted).
The above is just a small sample of what appellant courts have already ruled. I would think one with much Bench time would know them. Trying to say its different just because I'm gay is a stretch to preferential treatment.
Yep, I disagree with the Judge. Much of the above was again confirmed as late as 2009 in the 5th Circuit. As someone mentioned below, the girl doesn't wear a tux anywhere else...just wants to wear to prom. It conveys no specific message therefore it cannot be said to be a denial of 1st amendment rights.
Yep a waste of taxpayers money...not by school district though. Hopefully, the ACLU, the girl and the lower Court will re-evaluate their positions and quit wasting taxpayer money.
Guess what, regressives? Your extremism will soon result in your tax dollars being transferred to Constance's bank account! Be proud!
the she/he has gotten money and will get money for all this. i have an idea what she/he could do with that extra money, give it to the needy that are without homes and food and clothing.
Below is a link to some of his many and varied decisions over the years, revealing him to be tough on criminals, sincerely respectful of Mississippi’s cultural mores, and quick to dismiss genuinely frivolous cases.
http://www.leagle.com/unsecure/search.do?issubmit=yes&mainType=lev&startingHit=1&maxHits=10&searchMode=simple&formUid=0.40490855862201747&keywords=glen h. davidson, senior judge&location=mississippi&x=24&y=9#case
Born in Pontotoc, Judge Davidson graduated from Ole Miss Law School and was a JAG officer in the U.S. Air Force during Vietnam. In the ‘70s, he practiced law in Tupelo, briefly serving as city prosecutor. Also serving as DA for the Mississippi First Judicial District during much of this time, he became U.S. Attorney for the Northern District of Mississippi in 1981.
In 1985 his energy, ability, and extraordinary knowledge of the law got him nominated to a newly created Federal judgeship on the U. S. District Court, Northern District of Mississippi, by President Reagan.
After 22 years on the bench, including seven years as chief judge, Judge Davidson took Senior (semiretired) status in 2007 but still maintains a weighty docket due to the enormous press of Federal caseload. Recently, his skillful, dignified conduct of the sensational DeLaughter and Scruggs-related trials only added to an already impressive reputation.
May we all live lives so useful and distinguished.
http://www.fjc.gov/servlet/tGetInfo?jid=564
For the people who can't understand why or how the school can be sued...it's simple. it is a public school. they offered a service or opportunity (attending prom)to all the students except the school placed a special condition on one student because she is a lesbian. She could attend the prom as long as she dressed like a girl and brought the date that the school felt was appropriate for her. Not the date she wanted and not the cloths she wanted. the school would be within it's rights if it barred all students from bringing a date. If boys can wear tuxedos to the prom, then the girls must also be allowed to wear the same or similar type of attire unless the school can show that thier is some deficiency created by the girl wearing the attire such as her breast would show or something. You cannot discriminate against people just because you don't like them.
Trust me. The taxpayers of Itawamba county is going to pay for this. I would suggest y'all tell the school lawyer to quit saying that the prom was cancelled for reason other than the ACLU demand letter and Constance request. Courts do like being lied to and/or mislead. It may end up costing you more in the end.
The 5th Circuit has already ruled (2001 Littlefield & Canady) schools have wide latitude in dress. Considering this Judge has opinioned this to be a government school function, they have the right. Now if she had placed "I am a lesbian" or some other political etc message on the tux, she might be in luck !!! A tux cannot be considered a lesbian only speech attire. Considering being a lesbian has not been ruled a religious right that I know of, an opt out provision would not be necessary.
The ACLU knows this.They have been involved in these cases before. The tux argument is frivilous on its face under current appellant court case law.
School function=school hours & responsibility=school dress policy
If she wants to be a lesbian...go for it and take what comes with it just like anyone else. I don't care.
Who is wasting taxpayers money ? The ACLU, this girl and a lowly, has been Federal Judge all trying to make a name for themselves.
I'd rather be his than riches untold
I'd rather have Jesus than houses or land
I'd rather be led by his nail-pierced hands
Than to be a king of a vast domain
Or be held in sin's dread sway
I'd rather have Jesus than anything
This world affords today.
I'd rather have Jesus than men's applause
I'd rather be faithful to his dear clause
I'd rather have Jesus than worldwide fame,
I'd rather be true to his Holy name.
Than to be the king of a vast domain
Or be held in sin's dread sway
I'd rather have Jesus than anything
This world affords today.
Y'all can have this "new age", I'll never embrace it.
"Give me that Old Time Religion, it's good enough for me"
correct about you?
Loves how you put "they're retarded" right next to "we minus"
PRICELESS! That speaks volumes!
Hahaha
Now they will have to pay a huge amount of money to this girl. Ellen will come in to save the day, and they will have a better prom then before. Now we as a community are known not for a wonderful High School but a place that tries to force their students to fit into molds.
Great Going School Board!