A decision to bring a same sex date to the prom is expressive speech under the First Amendment. The Itawamba Agricultural High School had an “opposite sex date” policy for its prom. Enforcing its policy, the high school administration informed Constance McMillen, a lesbian student, that she must restrict her choice of a prom “guest” to a person of the opposite sex. In response to a specific request from Ms. McMillen, the high school administration also told Ms. McMillen that she could not wear a tuxedo or even a nice shirt and pants to the prom, restricting her to traditional female attire, a dress.

With the assistance of the ACLU, Ms. McMillen filed for injunctive relief. In response, the school board canceled the prom rather than accommodate Ms. McMillen’s requests. The District Court for the Northern District of Mississippi found that, by denying Ms. McMillen her choice of prom date and attire, the local school board violated her constitutional rights. The court specifically found that Ms. McMillen’s request for permission to wear a tuxedo to the prom had a communicative intent. Specifically, the court found that Ms. McMillen intended to communicate her political and social views that women “should not be constrained to wear clothing that has traditionally been deemed ‘female’ attire.” Similarly, her decision to invite same sex date to the prom had a communicative intent of expressing her openly gay identity. Noting that private citizens had organized at the local level to sponsor a prom open to all, the court did not issue an injunction requiring the school board to reschedule its own prom and permit Ms. McMillen and her guest to attend. In denying injunctive relief, the court also noted that it was not appropriate for the court to “go into the business of planning and overseeing a prom hosted by [the school district].” There can be no question, however, that the court rebuked the district for its unconstitutional prom policies.

A copy of the court’s opinion can be found by clicking here.