UPDATE: Judge rules no school prom but lesbian's rights violated

By Shelia Byrd/The Associated Press

JACKSON — The prom’s still off at a Itawamba County high school that canceled it instead of letting a lesbian student bring her girlfriend, but a federal judge ruled Tuesday that the district’s actions did violate the teen’s constitutional rights.

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.