The Prom!
Today, 11 December 2020, The Prom drops on Netflix. I’ve been looking forward to this adaptation of the stage musical and figured I’d share a bit on the case that inspired the central idea: the McMillen prom controversy of 2010. As far as I know, the first known example of gay kids going to prom together was in Sioux Falls, SD, in 1979. That same year a Cumberland, RI, principal banned a gay student from bringing a male date. In 1980, the same principal would again forbid a gay date and this time the kid challenged the decision in court and won. I’ve found dozens of controversies over the next few decades and that is likely the tip of the iceberg. The heteronormative rules of prom would have been clear in every high school: straights only allowed. Most gay kids wouldn’t even attempt to bring the date they want and either skipped the event, brought a friend, or went in a group.
Part of the email sent to all Juniors and Seniors at Itawamba Agricultural High School, Fulton Mississippi, on 5 February 2010.
Constance McMillen knew she wanted to take her girlfriend to prom but that it would be difficult. After all, the instructions sent every year included a clear rule that any date “must be of the opposite sex.” Perhaps expressing faith in the decency of adults, she thought maybe this was an old rule that no one really knew about anymore. She was told in no uncertain terms that she would not be allowed to take her girlfriend to prom or wear a tuxedo, girls had to wear dresses. The superintendent told Constance that “we could go separately but explained to me that we should not slow dance together because that could ‘push people’s buttons’ and make them uncomfortable. She said that if me and my girlfriend being there together made anyone uncomfortable, that the school could kick us out of the prom.” Constance would later state that “It’s like the school would be making me pretend that I am straight, which I’m not.” The school, to this point, provided no explanation for either the dress or date rules.
At this point things were all private and quiet. This changed when the Board of Education posted a formal announcement of an emergency board hearing. This was triggered by the ACLU sending a demand letter informing the district that precedent strongly supported a student’s right to bring the date of their choice and wear the formal attire they preferred. Rather than challenge this argument the Board called its meeting and cancelled the prom. Throughout the litigation it would reject that it cancelled anything, instead framing the decision as removing the District’s support for the prom and noted that it is common in Mississippi for proms to be held by private groups of parents. This is true and is a holdover of desegregation and the desire to prevent interracial proms. The district maintained it didn’t cancel anything. The judge would note that this is a shallow pretext, clearly the district did cancel the prom.
When called upon to justify this cancellation in court, the District engaged in the kind of gymnastics I see often in student speech cases. It justified the opposite sex date rule as “originally intended to serve as a means of minimizing consumption of alcohol at school social events and functions by preventing male students from bringing to such school social functions other males who did not attend the school and thereby turn the event into a party.” This is unconvincing which is probably why their legal counsel’s advice was to cancel. The District justified the cancellation as necessary because “the core educational mission of the school was at risk.” This is an attempt to force the case into Tinker, which allows suppression of student speech that causes or is likely to cause a substantial disruption to the school’s educational function. What was the nature of this disruption? Students asked questions in class about the controversy and people contacted school administrators and Board members to complain about the decision to cancel. I see this so often. As the ACLU attorneys exposed on cross-examination, there was no evidence of actual disruption because classes were held on time and no teachers reported anything more than some questions posing no problem for class time. Further, the public has a right to contact government and ask questions. Having to do one’s job as an administrator or Board member doesn’t arise to a disruption.
The District Court would prove unconvinced by the school’s argument. Clearly the District cancelled the prom because it did not want McMillen to attend with her date or in a tux. Such actions challenged the heteronormative ideal the school desired to enforce. The court found that these were presumptively protected aspects of freedom of expression and the District could point to no legitimate justification. After all, even the school officials admitted that nearly all of the press attention and negative comments came after the cancellation and was in response to that and nothing that Constance did. This, however, did not lead to the order that Constance wanted. The judge felt that ordering a school to hold a prom would require a level of judicial oversight that is inappropriate for a federal court. He made this decision, in substantial part, based on the repeated statements of school officials, under oath, that there was a parents’ prom being organized and that all students, including Constance, would be allowed to attend. So the judge found a likely constitutional violation but refused to order a prom when she was going to attend the private prom. This is where things go truly crazy.
It turns out that the parents’ prom was not quite as accessible as represented. It was unclear how to get tickets and the ACLU had to send a letter to the District requesting information to support its representations to the court. The school failed to provide the information and finally a classmate told Constance on 29 March that the tickets were being sold at a store but that the deadline to purchase passed two days ago. She still attempted to get tickets but that night the superintendent and District lawyer met with parental organizers who were unwilling to let Constance attend and the District officials warned them that this could hurt the school in the suit if they excluded her. So they cancelled the prom for the second time. One of the parental organizers told the local press “There are a lot of people involved, and they didn’t want to get sued.” As there was no viable way of suing the parents, this is just another pretext for refusing to allow a lesbian couple to attend prom.
Things started to look up on 30 March because the school sent Constance’s legal team a letter informing them that prom would be held on 2 April. Excited, Constance and her date got prepared and probably engaged in all of the traditional pictures and pre-prom celebrations. Then she showed up and discovered only seven other students at this prom. It turned out to have been a sham and eventually social media would show that every other student went to a different prom that was hidden from her. This humiliation only added to the social exclusion and bullying from her classmates. While Constance testified that she had been out since eighth grade and had no problems with classmates, they blamed her for the prom cancellations. The hostility got so bad that she was forced to transfer schools only months before graduation.
As Constance’s legal team made these facts clear in the lawsuit, the District’s insurer pulled the plug on things. As it was on the hook for any damages, the insurer has the power to force a settlement and looking at the facts in this case, especially when you add in District officials apparently lying to the court, it decided to end things. It paid Constance $35,000 and her legal fees of about $80,000. Constance would have a moment in the spotlight as she was on Ellen, where she received a scholarship, and was one of the grand marshals of that year’s New York City Pride Parade. Her story was certainly an inspiration for many queer kids at the time. Though I doubt that made up for the homophobia of her school and community that forced her out of the town she grew up in.
I drew this account from various documents in the litigation itself and some press accounts. A few of the key litigation documents are the amended complaint, the testimony at the court hearing, and McMillen's and the District’s arguments over the preliminary injunction.
