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Julie Hilden

Constance McMillen and the Prom: A Discrimination Issue, But a Case Decided on First Amendment Grounds


Monday, April 12, 2010

The case of Constance McMillen – the Mississippi teen who invited her girlfriend to her high school prom, but was told she couldn't attend with a girl, or wear a tux as she had planned – has made national news as a blatant instance of discrimination.

Constance was told by her school that she could only attend if she and her girlfriend, in essence, feigned being heterosexual by each bringing a boy as her date. She was also told by the school that she would be forbidden from dancing with her real date – her girlfriend – because it would "push people's buttons," and that she would be "kicked out" if she made anyone uncomfortable.

After that, Constance asked for the ACLU's help, and the ACLU stepped in. But even then, the discrimination continued. When the school's prom was cancelled, the school is alleged to have conspired with students' parents to throw a secret private prom at a country club. Apparently, Constance was sent to a tiny "decoy prom" instead. This is segregation, pure and simple.

On the facts, then, there is no question that this is a case of virulent hatred that is based on difference – in this case, ugly homophobia. Interestingly, though, the judicial decision in the McMillen case rested on First Amendment, not anti-discrimination, grounds.

In this column, I'll discuss that decision and its reasoning – agreeing with some of the judge's analysis, but sharply criticizing the ultimate result.

The First Amendment Argument: A Mix of Speech and Conduct that Is Constitutionally-Protected

Ultimately, the court denied Constance's motion for a preliminary injunction – which, in this case, would have been an order forcing the school to let her go to the prom. But it also held that Constance had fulfilled three out of four of the factors necessary for the preliminary-injunction showing – and that holding ought to help her later in the case, if it continues (as it should).

The first factor in the preliminary-injunction decision was whether Constance had a substantial likelihood of succeeding on the merits of her First Amendment claims. The court held that because the First Amendment protects the expression of one's identity and affiliation, even through speech that is mixed with conduct, this factor was satisfied.

The court pointed out that Constance wanted to wear her tux as a political statement, not merely a fashion statement. She also said that bringing her girlfriend as her own date – rather than having them each pass as straight by supposedly being the date of a boy – was a way for her to express her identity. And the court – drawing in part on similar cases from Rhode Island, Alabama, and New Hampshire – agreed, recognizing the expressive aspect of Constance's plans.

Notably, this ruling may offer protection to GLBT students who express themselves as such not just during prom, but during regular school days and other events as well.

Notably, the Supreme Court has recognized a number of other kinds of conduct mixed with speech that are protected by the First Amendment. In Barnes v. Glen Theatre, the Court held that nude dancing was protected but regulable because of its "secondary effects." In Texas v. Johnson, the Court held that flag-burning was protected. In Tinker v. Des Moines Indep. Cmty. School Dist., the Court held that high school students' wearing of anti-Vietnam-War armbands was protected. If a prom case ever makes it to the High Court, prom-going may well be added to the list of protected kinds of conduct mixed with speech.

The Second Preliminary Injunction Factor: Irreparable Injury

The second factor in the preliminary-injunction analysis was whether Constance would suffer irreparable injury, absent an injunction forcing the high school to allow her to go to the prom.

Here, the court simply cited precedent holding that even the temporary loss of First Amendment freedoms constitutes irreparable injury, as a matter of law, for purposes of a preliminary injunction. And indeed, the precedent is dispositive when it comes to this factor.

But the court's point might have been made even more strongly had the court referred to the case's particular context: Students tend to place great emphasis on their senior proms, and they typically believe that there can be no equivalent or substitute. (Indeed, Constance's fellow students cited their belief in the unique importance of the prom in the nasty comments they left for her on Facebook.) So unlike, say, an exam that could be fully replaced by a make-up exam, a prom cannot really be replaced with a make-up prom. Here, too, is a basis for the irreparable-injury finding.

The Third Preliminary-Injunction Factor: Weighing the Parties' Injuries Against Each Other

The third factor was whether the injury to Constance would outweigh any damage to the school board were she to be allowed to attend the prom.

The school board claimed that allowing Constance and her girlfriend to attend the prom would disrupt its ability to run the schools. However, the court found no factual support in the record for that claim. As a basis for a decision, that's fair enough – but I think the court should also have gone on to reject the claim as a matter of law, not just based on the absence of supporting facts.

Even if a chance of disruption had been shown, the right answer would still have not been cancellation of the prom. It should have been a heightened police (or if necessary, federal) presence. In desegregation fights, public schools were rightly required to cope with disruption and hate in order to honor the Constitution. The only other alternative is to accept a "heckler's veto" – or, here, a homophobe's veto – where opponents of the exercise of constitutional rights are more likely to win, the more disruptive they are. That kind of incentive is just another form of "Might makes right."

Moreover, one of the most disruptive tactics imaginable is the use of violence. Thus, allowing "disruption" to count against a First Amendment claim would actually invite violence – so that, ironically, a court that is supposed to enforce law would end up effectively inviting lawbreaking by accepting disruption as a basis for the denial of a preliminary injunction.

The Reason Why the Court Ultimately Denied the Preliminary Injunction

After the three favorable rulings on individual factors that I described above, one might think that Constance would have gotten the preliminary injunction she sought. But oddly, she lost on the fourth factor – because the court believed that an injunction would disserve the public interest.

More specifically, the court held that a preliminary injunction was not in the public interest because it reasoned that Constance could simply go to the newly-scheduled private prom, which the court had been told would be sponsored by parents and open to all students.

My impression is that a party's losing on the public-interest factor of a preliminary-injunction showing – as Constance did – is very odd. By contrast, it's common for plaintiffs to lose simply because the court doesn't think they have a good case. And it's fairly common for plaintiffs to lose because the court thinks that it won't matter too much for the plaintiff to have to wait for a little while, and the court would prefer to have more time to deliberate on difficulty legal questions that have been raised. (Some parties do try to get a preliminary injunction to strong-arm and pressure the other side to settle or capitulate, even if the passage of time isn't especially prejudicial to them) But a defeat on public-interest grounds seems quite unusual to me.

So why did the court rule against Constance on this ground? I think it comes down to either cowardice or naivete. Cowardice, in that the court might have feared violence (yet failed to order measures to prevent it). Naivete, in that the court might have thought that the school, and the parents of the prom-attending students, would be more genuinely cooperative in honoring Constance's rights than they turned out to be.

The court also balked, in its opinion, at the idea that the court itself would have to somehow oversee the prom (even though federal courts have been known to oversee, for example, federal prisons). The court thus praised the parents for "tak[ing] the initiative" to host the supposedly completely inclusive private prom themselves. In the end, the court seemed to see the parents' alternative as an easy way out – Constance could be included without the court's having to lift a finger.

Now we know how well that worked: The real prom reportedly was kept secret from Constance, and the prom organizers doubly insulted Constance by sending her to the decoy prom.

But even without the benefit of 20-20 hindsight, there were some serious problems with the court's decision on the very day it was issued. Most importantly, the court's supposed solution set a troubling precedent of allowing private persons' promises – and money – to solve a school's constitutional violation.

Also, there is no indication in the court's opinion that any of these private persons were forced to sign an enforceable agreement about what the prom would be like, or were placed under court order to include Constance in the prom.

Courts can't just trust; they need to verify. Now, it's possible that all the culprits can evade punishment: The private parties may not have done anything wrong (as convening exclusive private groups is legal) and it's possible the ACLU will not be able to prove that the school – the government actor here – was involved in the prom ruse. The court's supposed solution, then, might have tied its hands. But lets hope the ACLU goes back to court soon, to see if some kind of remedy may still be fashioned.

The "decoy prom" outcome was a disaster that could have been prevented. Fortunately, this kind of gamesmanship is unlikely to occur again – for no federal judge is likely to repeat this mistake.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read . . . a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter. It also includes her article from Animal Law, "A Contractarian View of Animal Rights."

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