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.