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Diversity & Community Services Mosaics Newsletter: Summer 2014
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Kramer Levin is co-counsel with the American Civil Liberties Union in McMillen v. Itawamba County School District, et al., a case in Mississippi brought on behalf of an openly lesbian student who had been denied the right to attend her high school prom with her girlfriend as her date. When our client, Constance McMillen, secured legal representation to enforce her First Amendment rights to attend the prom with the date of her choice -- as well as to wear the attire of her choice (a tuxedo) -- the school district decided to cancel the prom altogether rather than to accede to her demands.
On March 23, 2010, a federal district judge in the Northern District of Mississippi ruled that school officials violated Constance's First Amendment rights when it canceled the prom rather than let her attend with her girlfriend and wearing a tuxedo. The Court wrote in a 12 page decision:
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. For all of the foregoing reasons, the Court finds that Constance's First Amendment rights have been violated and therefore, she has established, by a preponderance of the evidence, a substantial likelihood of success on the merits with respect to her First Amendment claim.
The Court stopped short of ordering the school district to put the prom back on the school calendar because of assurances that an alternative “private” prom being planned by parents would be open to all students. The decision stressed that "[t]his case remains active and Plaintiff, is she so desires, will be permitted to amend her Complaint to seek compensatory damages and any other appropriate relief."
The case has generated tremendous media attention, including stories appearing in The New York Times, The Washington Post, and USA Today; and on national television news and entertainment programs. There has been a very high level of public support for Constance, including many offers to pay for or host inclusive proms for her and all students at her high school.
The Kramer Levin team includes litigation partner Norman C. Simon and associates Joshua Glick, Jason M. Moff, and Lee C. Strock.