Lesbian teen wins lawsuit against school that canceled prom, sort of

posted at 9:38 pm on March 23, 2010 by Allahpundit

The last post I wrote about her got 800 comments, so we need closure. As I’ve said before, there’s no Equal Protection shield for sexual orientation under current jurisprudence, which means the discrimination claim is out the window. The only option? A First Amendment suit alleging that canceling the prom violated her freedom of speech. Turns out it’s a winner:

In the 12-page ruling, the court wrote, “The record shows Constance has been openly gay since eighth grade and she intended to communicate a message by wearing a tuxedo and to express her identity through attending prom with a same-sex date. The Court finds this expression and communication of her viewpoint is the type of speech that falls squarely within the purview of the First Amendment. The Court is also of the opinion that the motive behind the School Board’s cancellation of the prom, or withdrawal of their sponsorship, was Constance’s requests and the ACLU’s demand letter sent on her behalf.” Further, the court says that since the school represented the private prom being organized by parents at a furniture store as open to all students, then the court expects that event will indeed invite McMillen and her girlfriend.

An interesting wrinkle here: If McMillen hadn’t asked to wear a tux and bring a girl to the dance and the school had canceled the prom anyway, would they be on safer ground legally? I.e. if they canceled it simply because they didn’t want a lesbian in attendance, even if she promised to “act straight,” would that be okay? I’m guessing no since the discrimination is arguably even harsher in the hypothetical example, but like I say, this technically isn’t a discrimination case. It’s a speech case, and without the “expression” of sexual orientation involved in wearing a tux and bringing a same-sex date, in theory the speech claim would be weakened. The court would have to rule that simply being gay, even if you’re not communicating that fact, is itself an act of “speech” worthy of First Amendment protection — although in that case, the speech claim would be indistinguishable from a discrimination claim.

The court decided that it won’t force the school to hold a prom since there’s already a private prom in the works. (To get an injunction, you need to show irreparable harm and the fact that there’s a substitute prom here arguably means the school’s cancellation isn’t irreparable.) So all’s well that ends well? Well, not quite:

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…

[Judge] 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.”

Here she is a few days ago on Ellen DeGeneres’s show, where she got a scholarship donated by a digital media company. Note the salute to her dad. She’s lucky to have him.


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Another bigot thinks that because you someone is born with a preference for same sex that it MUST mean they were molested. Perhaps that’s why platypus is a deviant but I don’t think he should project it onto others.

pleaseandthankyou on March 24, 2010 at 1:06 PM

Actually, a bigot is someone who condemns others from a position of no evidence. Nobody has ever shown even a link between genetics and perverted sex.

How am I a deviant? That is about the stupidest thing I’ve heard since Duh One started speaking in public. Just so you know, it’s the perverts who are deviants, not us normal people.

platypus on March 24, 2010 at 1:17 PM

Well, where did she get the idea this was okay? And where in this country is it legal to have sex with a child?

I know – she started on her sixteenth birthday. /- platypus on March 24, 2010 at 1:10 PM

What started on her 16th birthday?

SC.Charlie on March 24, 2010 at 1:21 PM

Platypus: “OMIGOD did you see that girl holding hands with that other girl?!!”
Average Joe: “so what?”
Platypus: “but it’s so… so…perverted… it’s so… unnatural. I think I’m gonna hurl!”
Average Joe: “yea OK”
Platypus: “she must have been molested when she was a child, and she will probably molest other children if we don’t stop her from holding hands right now!”
Average Joe: “did the Lakers win today?”
Platypus: Lakers?! How can you talk about basketball when there are two girls sitting over there holding hands?! Holding hands. ! OMIGOD I think they are going to hug! OMIGOD, THE WORLD IS BEING TAKEN OVER BY CHILD MOLESTERS ANG GOAT F***CKERS!!!”
Average Joe: “I once sat in the same row at a concert with a Puerto RIcan.”
Platypus “THE WORLD IS BEING TAKEN OVER BY PUERTO RICAN GOAT F***CKERS!”

pleaseandthankyou on March 24, 2010 at 1:22 PM

pleaseandthankyou on March 24, 2010 at 1:22 PM

No, the world is being taken over by daydreamers who think they’re awake. Such as you.

But keep it up, since it is at least entertaining to watch you.

platypus on March 24, 2010 at 1:25 PM

Ronald Reagan in his November 1, 1978 opinion piece in the San Francisco stated, ““Whatever else it is, homosexuality is not a contagious disease like the measles. Prevailing scientific opinion is that an individual’s sexuality is determined at a very early age and that a child’s teachers do not really influence this.” He wrote this because he was against Prop 6, which would remove all homosexual teachers and their supporters from teaching at public schools.

SC.Charlie on March 24, 2010 at 1:27 PM

I guess that according to platypus’ logic all children should be heterosexually molested at a very young age in order to assure that they become heterosexual?

SC.Charlie on March 24, 2010 at 1:33 PM

According to platypus logic, all heterosexuals are guilty of pedophelia because how would they know if they were hetero by prom age if they hadn’t already had sex?

pleaseandthankyou on March 24, 2010 at 1:36 PM

Where’d all the bigots suddenly go to? I think I hear birds chirping.

pleaseandthankyou on March 24, 2010 at 1:38 PM

Where’d all the bigots suddenly go to? I think I hear birds chirping. – pleaseandthankyou on March 24, 2010 at 1:38 PM

They are still lurking around.

SC.Charlie on March 24, 2010 at 1:41 PM

SC.Charlie on March 24, 2010 at 1:27 PM

To be relevant in the current discussion, those gay teachers would have to have sued to keep a school open after had slated for closure.

I’ll ask the question I posted before. No matter what lifestyle this selfish girl opts to pursue, what gives her the “right” to turn a school-wide event into a coming out party for her sexual orientation?

highhopes on March 24, 2010 at 2:04 PM

They are still lurking around.

SC.Charlie on March 24, 2010 at 1:41 PM

They are trying to google 1st Amendment jurisprudence to get smart on what the court has said over the last 200 years on what is and is not speech and what constitutes government interference.

Oh wait, that was wishful thinking.

Squid Shark on March 24, 2010 at 2:04 PM

highhopes on March 24, 2010 at 2:04 PM

I highly doubt this would have been her coming out party. Seems everyone knew about it already.

Squid Shark on March 24, 2010 at 2:06 PM

To be relevant in the current discussion, those gay teachers would have to have sued to keep a school open after had slated for closure. – highhopes on March 24, 2010 at 2:04 PM

Please, explain.

Also, I don’t think it was her coming out party. It appears that the entire school already knew.

SC.Charlie on March 24, 2010 at 2:16 PM

She needs a Bible and a good Christian therapist. In that order.

inchdeep on March 24, 2010 at 2:20 PM

She needs a Bible and a good Christian therapist. In that order.

inchdeep on March 24, 2010 at 2:20 PM

I am sure she has got plenty of that in Mississippi

Squid Shark on March 24, 2010 at 2:27 PM

She needs a Bible and a good Christian therapist. In that order.
inchdeep on March 24, 2010 at 2:20 PM

No, she needs the bigots to stop being bigots. In that order.

pleaseandthankyou on March 24, 2010 at 2:30 PM

Also, I don’t think it was her coming out party. It appears that the entire school already knew.

SC.Charlie on March 24, 2010 at 2:16 PM

The point is she managed to make a school-wide event all about her and her sexual orientation. That’s nothing but selfish. If her classmates hate her, perhaps it is because of that and not the fact that she likes girls.

highhopes on March 24, 2010 at 3:02 PM

I highly doubt this would have been her coming out party. Seems everyone knew about it already.

Squid Shark on March 24, 2010 at 2:06 PM

Per the article,

“The record shows Constance has been openly gay since eighth grade and she intended to communicate a message by wearing a tuxedo and to express her identity through attending prom with a same-sex date.”

It may have not been coming out gay in the traditional sense but her entire intent was the old “I’m here and I’m queer, get over it mantra” that in this case sends the message to her classmates….. I don’t care how much prom means to you, I want to make it all about my sexual orientation and I don’t care what that does to the party.

highhopes on March 24, 2010 at 3:06 PM

This is directed more at the men here than anyone else, but if you think there is no genetic component to sexual orientation, I have to ask….do you get a stiffy when looking at other guys? If so, that may be an indication that you’re gay. I don’t have such a reaction unless I’m looking at an attractive (to me) woman, but if I did I would certainly be asking this question of myself.

The reason being, if I don’t have that reaction, I can’t have sex. A line I heard in a movie once was that it would be akin to stuffing a donut into a slot machine. Can’t be done. If I do have that reaction, desire is assumed (at the very least), and if you think there is no genetic component to desire then I have to ask if you like eating raw sewage. Surely there is a genetic component to what you prefer to eat.

runawayyyy on March 24, 2010 at 3:11 PM

The point is she managed to make a school-wide event all about her and her sexual orientation. That’s nothing but selfish. If her classmates hate her, perhaps it is because of that and not the fact that she likes girls.

highhopes on March 24, 2010 at 3:02 PM

No, the school made the school wide event all about her. If the administrators had said. “OK, you can come with your girlfriend, and you can wear a tuxedo as long as it’s within the standards of the tuxedo dress code” then there would have been a prom and no one would have made much of a beef about it. Just like what happens at countless other schools across the nation, that we don’t hear about, because it’s not a big deal.

It was the schools decision not to have the prom, NOT the girls. Highhopes, stop being a backwoods bigot.

pleaseandthankyou on March 24, 2010 at 3:50 PM

Runawayyy, there is no proven/known genetic cause as to why someone is gay or straight. Certainly there is a logical reason as to why we have the two sexes. Reproduction.

SC.Charlie on March 24, 2010 at 3:53 PM

runawayyyy on March 24, 2010 at 3:11 PM

A funny way of making the point…but well said. Every single gay person I know says they were born with it and it was NEVER a choice. Most bigots have never met a gay person and probably are so hateful and cowardly and backwards that they would never dare to.

pleaseandthankyou on March 24, 2010 at 3:54 PM

Runawayyy, there is no proven/known genetic cause as to why someone is gay or straight. Certainly there is a logical reason as to why we have the two sexes. Reproduction.

SC.Charlie on March 24, 2010 at 3:53 PM

Yes, but as with any genetic norm there are genetic exceptions that crop up that don’t have a reproductive function, like red hair, different colored eyes, an extra toe, autism, savantism, and homosexuality. My guess is that fairly soon geneticists will find the genetic marker that predisposes someone to homosexuality.

pleaseandthankyou on March 24, 2010 at 4:04 PM

A funny way of making the point…but well said. Every single gay person I know says they were born with it and it was NEVER a choice. Most bigots have never met a gay person and probably are so hateful and cowardly and backwards that they would never dare to. – pleaseandthankyou on March 24, 2010 at 3:54 PM

I am gay. I don’t claim to have been born gay. I can only claim that I did not choose to be gay. Most bigots have met gay people, but just did not know it.

SC.Charlie on March 24, 2010 at 4:20 PM

SC.Charlie on March 24, 2010 at 4:20 PM

I’m not gay but many of my friends and many of my students are. If you did not choose it (nurture), then the only other option is that the preference came from something innate (nature). No? What am I missing here?

pleaseandthankyou on March 24, 2010 at 4:25 PM

Surely there is a genetic component to what you prefer to eat.

runawayyyy on March 24, 2010 at 3:11 PM

No not surely. You know how we know there isn’t a genetic component to what you prefer to eat? Because entire cultures eat the same stuff. There is no genetic component to sexual preference either. There isn’t one shred of evidence for it.

Rocks on March 24, 2010 at 4:57 PM

I’m not gay but many of my friends and many of my students are. If you did not choose it (nurture), then the only other option is that the preference came from something innate (nature). No? What am I missing here?

pleaseandthankyou on March 24, 2010 at 4:25 PM

Environment. Choosing has nothing to do with nurture. I hate pimentos and cheddar cheese spread. Hate it. But I love cheddar cheese and I love pimentos. Why do i hate it? When i was little my sister tried to force me to eat it. Even the thought of it still makes me sick to my stomach. Was that a choice or nature? It was neither.

Rocks on March 24, 2010 at 5:00 PM

Why didn’t she wear a suit for her TV appearance?

Harpoon on March 24, 2010 at 5:01 PM

Dang, if she were, like, uber hot, we could have avoided this constitutional crisis.

justltl on March 24, 2010 at 5:35 PM

Choosing has nothing to do with nurture.
Rocks on March 24, 2010 at 5:00 PM

This might just be a semantic misunderstanding but my understanding of the classic “nature vs. nurture” argument is between the idea that some behaviors and preferences and instincts we are born with and others we learn from our environment. As I said, I’ve known a lot of gay people and they always say that they did not pick up their sexual preference from their environment, that they never had a choice. My own experience tells me this is true in that there is absolutely nothing in my environment that could make me change my attraction to woman. Not one chance in ten billion. I have to assume the same is true for gay people. They just naturally have this attraction to the same sex, as weird as that may seem to the rest of us, and there is equally no chance of getting them to change their preference. That is why it is stupid to be afraid that gay people are trying to recruit. They no it can’t be done. I lived in San Francisco for nearly twenty years, had tons of gay friends and not once did one of them try to recruit me, and if they had, I would have politely said, no thanks and that would have been the end of it. The hysteria of straight people people regarding gay people is astounding to me and nothing but bigotry based on ignorance. Young people know a life as a gay person will probably be a very difficult life due to the amount of hatred they will have to face, so it seems unlikely to me that they would CHOOSE it voluntarily.

pleaseandthankyou on March 24, 2010 at 5:36 PM

…know it can’t be done…

pleaseandthankyou on March 24, 2010 at 5:37 PM

I’m not gay but many of my friends and many of my students are. If you did not choose it (nurture), then the only other option is that the preference came from something innate (nature). No? What am I missing here? – pleaseandthankyou on March 24, 2010 at 4:25 PM

The only thing I am saying is that at this time there is no proven “known” genetic cause for someone to be gay or heterosexual. As Ronald Reagan wrote in 1978, “Prevailing scientific opinion is that an individual’s sexuality is determined at a very early age and that a child’s teachers do not really influence this.” This still holds to this very day.

SC.Charlie on March 24, 2010 at 5:44 PM

Disclaimer: I have gay relatives and am asking this question really for information, because I can’t ask the said relatives. It makes for awkward Thanksgivings. My thoughts are that homosexuality is more of a neurology thing- a hardwiring of the brain thing. Do any gay peeps agree? The reason I think this is because I have an autistic daughter. She does all kinds of things she wishes she could stop doing, flapping her hands, for example. It embarrasses her, but she can’t really turn off the part of her brain making her flap. There are always morons who are convinced she could stop if she was disciplined, or if she “really tried hard”. So to me gayness seems very much a neurology thing- and like autism, it could be brought on by any number of things, genetic or other wise, and pin pointing it what brought it on is nearly impossible.

Kristamatic on March 24, 2010 at 6:50 PM

She needs to take a victory “lap”.

Cleveland Steamer on March 24, 2010 at 6:51 PM

My God. My daughter literally worked her tail off in high school. Salutatorian of her class, cheerleader captain, all-state in music, track, and academics, the list goes on. She ended up with enough scholarships to pay for about half of college. Turns out all she needed to do was declare herself gay and threaten to disrupt her senior prom. Sad world.

Cornhusker on March 24, 2010 at 6:58 PM

It was the schools decision not to have the prom, NOT the girls. Highhopes, stop being a backwoods bigot.

pleaseandthankyou on March 24, 2010 at 3:50 PM

I’ll ignore the personal insult because clearly your intellect makes you lash out with personal attacks instead of sticking to the facts. In other words, I don’t blame you for being a stupid moron, that’s just the way God made you.

Beyond that, you are wrong. The school had a standard they expected all students to live up to. It was a standard applied evenly to all students based on gender, not sexual orientation. Suddenly this selfish girl decides that, besides being openly gay for years, she had to make the prom all about her and her sexual orientation. It’s all her fault and I don’t blame the school for cancelling the event. How many other students worked hard raising funds, working committees, whatever only to have is spoiled by this selfish girl and her desire for attention.

BTW, this “backwoods bigot” has gay friends but what makes it okay is that we understand each other’s views enough to have a relationship that doesn’t make it all or nothing acceptance of a lifestyle choice that focuses on sexual orientation. This selfish girl made it all about community acceptance of her own lifestyle choice without once bothering to think about her classmates. She doesn’t deserve to go to the prom because of that, not because she wants to wear a tux.

highhopes on March 24, 2010 at 7:05 PM

The only thing I am saying is that at this time there is no proven “known” genetic cause for someone to be gay or heterosexual. As Ronald Reagan wrote in 1978, “Prevailing scientific opinion is that an individual’s sexuality is determined at a very early age and that a child’s teachers do not really influence this.” This still holds to this very day.

SC.Charlie on March 24, 2010 at 5:44 PM

Huge difference between the science of homosexuality and embracing the homosexual lifestyle that demands sociey celebrate homosexuality. I see the news stories of “committed same-sex couples” who have lived together for years. At the same time, have you ever been in New Orleans during the Southern Decedance Festival or Pensacola for Memorial day? This too is part of the choice to live a homosexual lifestyle and until there is some rational solution to these diametric different parts of the same lifestyle, it is unrealistic and unfair to demand society accept homosexuality. Just in case you missed the above references, New Orleans during Labor Day is absolutely lewd with same sex couples doing things in public that heterosexuals would be put in jail for doing (even during Mardi Gras).

highhopes on March 24, 2010 at 7:12 PM

What I want to know is will this babe have to give that scholarship money back in a few years after she decides she likes guys.

Dork B. on March 24, 2010 at 7:20 PM

What I want to know is will this babe have to give that scholarship money back in a few years after she decides she likes guys.

Dork B. on March 24, 2010 at 7:20 PM

More likely to sue all the people that enabled her thinking that she was gay. Selfish is selfish not matter what one’s sexual orientation.

highhopes on March 24, 2010 at 7:24 PM

Highhopes, I agree. I think that there are gays that behave badly. However, there are a lot of heterosexuals that I think that behave badly.

SC.Charlie on March 24, 2010 at 8:25 PM

Dang, if she were, like, uber hot, we could have avoided this constitutional crisis.

justltl on March 24, 2010 at 5:35 PM

Hahahaha. Best.

loganthompson on March 24, 2010 at 9:20 PM

pleaseandthankyou on March 24, 2010 at 5:36 PM

You can believe all that but it has no basis in reality. People do change their sexual attractions. Many people suddenly become gay in middle age. It happens every day. Do gays recruit? Who knows? Do they actively work on trying to have sex with men straight or not? Yup. Probably because they like to have sex with men.

Not really understanding how you came to feel about something does not make it natural. Nurture does not automatically mean a decision has been made or a single event set a pattern. there could be 100s of tiny events that build to something. All of which may have occurred at an age too young to remember. But that does make it natural.

Did you decide to like bacon? or chocolate? How about receiving presents? Did you decide “hey that’s good”?

This is not even limited to things which everyone likes. I distinctly hated the first cigarette I smoked but I’ve been smoking for 25 years and no I wasn’t instantly hooked or anything. It was years before I worked up to the 3/4 pack a day habit I have now.

There is nothing natural about our sexual preferences. The only natural thing is a desire for sex. If you stuck a bunch of boys on an island and somehow managed to get around explaining where children come from eventually all of those boys would be bonking each other. It wouldn’t make them naturally gay. Just because a pattern becomes set it doesn’t mean that is the only pattern which could have occurred.

Rocks on March 24, 2010 at 10:38 PM

Dang, if she were, like, uber hot, we could have avoided this constitutional crisis.

justltl on March 24, 2010 at 5:35 PM

Hahahaha. Best.

Wow, what a bunch of cretins. What are you, 8 years old?

pleaseandthankyou on March 25, 2010 at 12:32 AM

Highhopes I honestly can’t believe how dense you are. The girl DID NOT KNOW that the school would cancel the prom as a result of her request. She made the request, THEY cancelled the prom. Nobody held a gun to their head and said they must cancel this prom. You keep putting that on the girl but it was the school’s decision. The girl is on record saying that she feels terrible for her classmates so she is not some sort of perfectly selfish, unfeeling yob. If

I were to use your logic, I could say it was black peoples fault back in the 50′s and 60′s for busses not running on time because they insisted on being able to sit in the front with white people. “Oh those black people…it is unrealistic and unfair to demand society accept them. And they keep insisting on being able to drink out of our drinking fountains! What trouble makers! How selfish! If they didn’t cause so much trouble we would be able to eat at our whites only lunch counters in peace!

You are a bigot, straight up, and you don’t see it because well, you’re a bigot. Obviously, the girl is self-motivated but what she is doing is way more brave than selfish, in the face of bigots like you, and she deserves some compassion, not scorn and hatred.

pleaseandthankyou on March 25, 2010 at 12:56 AM

Rocks on March 24, 2010 at 10:38 PM

I’m sorry I just don’t buy you analogy that sexual preference is like developing a taste for pretzels. People don’t have a reason to voluntarily switch over to a preference that will surely bring them shame and scorn, if everything was working just fine beforehand. It’s way more likely they don’t have a choice about it. People who “turn” gay in their middle ages are people who finally admit to themselves what they’ve known all along. People don’t go through life being attracted to women and one day wake up and say “Hey! I think I’ll try being attracted to guys. Looks like fun!” Doesn’t happen.

I don’t understand how you could expect someone to turn from gay to straight (for the purpose of making all the straight bigots feel more comfy)? It would be like expecting that you could take Tiger Woods and make him gay. It’s just not going to happen. Unless you are projecting something you know about yourself, of course.

pleaseandthankyou on March 25, 2010 at 1:18 AM

wow that was really worth fighting for huh? What about your freakin Country?! Try fightin for that!

johnnyU on March 25, 2010 at 8:17 AM

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