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McMillen v. Itawamba County School District, District Court of N.D. Mississippi, United States (23 March 2010)

Procedural Posture

The plaintiff filed a preliminary injunction on freedom of expression grounds challenging the defendant school district’s decisions, to prohibit her from bringing her girlfriend to the prom and wearing a tuxedo to the prom, and to cancel the event when she sought to complain.


The plaintiff, a lesbian student at Itawamba Agricultural High School (IAHS), asked her girlfriend, a junior student at IAHS, to the school prom. Because the IAHS had an “opposite sex” dating policy, the plaintiff sought permission from the assistant principal to take her girlfriend, and was told that “they could attend with two guys as their dates but could not attend together as a couple”. The plaintiff then sought permission from the Principal and Superintendent, and was told that they could attend separately, but not together. Furthermore, the plaintiff and her girlfriend would not be permitted to slow dance together “because it could ‘push people’s buttons’”, and they would be “kicked out” if their presence or behaviour made other students uncomfortable. The plaintiff was also told that she could not wear a tuxedo or even trousers because girls were required to wear dresses.

In response, the plaintiff contacted the American Civil Liberties Union (ACLU) for help, and the ACLU sent the school district a letter calling on the school to change its policy and allow the plaintiff to attend the prom with her girlfriend and wear a tuxedo. The school board decided to cancel the prom and asked private citizens organise an event instead.

The plaintiff testified that the prom was important to her because it was a memorable aspect of high school that she wished to share with her girlfriend. She further stated that telling her to attend the prom with a boy denied her, a gay student, access to the rights that straight students enjoyed: the latter were not only permitted to attend with the person they were dating but were allowed to dance together. Finally, she stated that she did not want to go to the prom if the school forced females to attend in traditional gender specific clothes and would not allow females to wear a tuxedo.


Whether the plaintiff could obtain a preliminary injunction against the school district preventing it from denying her permission to bring her girlfriend to the prom or wear a tuxedo, and preventing cancellation of the event; whether the plaintiff’s constitutionally protected viewpoints under the 1st Amendment to the United States Constitution had been suppressed.

Domestic Law

Constitution of the United States, 1st Amendment (freedom of speech).

Canady v. Bossier Parish School Board, United States Court of Appeals for the 5th Circuit, 2001 (“[T]he ‘expression of one’s identity and affiliation to unique social groups’ may constitute speech as envisioned by the 1st Amendment.”).

Collins v. Scottsboro City Board of Education, Alabama Circuit Court 38th Judicial District, United States, 2008 (holding that school could not cancel a prom to prevent students from attending and requiring school to hold prom).

Fricke v. Lynch, United States District Court of Rhode Island, 1980 (holding that it was denial of freedom of expression to prevent a male student from attending prom with his boyfriend).

Gay Students Organization of University of New Hampshire v. Bonner, United States Court of Appeals, 1st Circuit, 1974 (holding that prohibiting a gay student group from holding social activities on campus denied members their right of freedom of association).

Romer v. Evans, United Stated Supreme Court, 1996 (finding unconstitutional a State constitutional amendment that withdrew a specific class of people – gays and lesbians – from the protection of the law without a legitimate State purpose, in violation of the equal protection clause of the federal Constitution).

Reasoning of the Court

The plaintiff had to satisfy four criteria in order for the Court to grant a preliminary injunction, each of which was addressed by the Court in detail.

The first, whether the plaintiff had “a substantial likelihood of success on the merits”, was found to have been satisfied. The Court came to this conclusion by considering the plaintiff’s free speech rights. The Court referred to Romer v. Evans, Agriculture v. Moreno, Gay Students Organization of University of New Hampshire New Hampshire v. Bonner, Canady v. Bossier Parish School Board, and Collins v. Scottsboro City Board of Education and found that the expression of sexual orientation was a protected form of speech. The Court also looked to the reasoning of Fricke v. Lynch, where the court had decided that the plaintiff’s sense of personal identity and expression in attending prom with a person of the same-sex was a form of protected speech. The Court observed that clothing could be a form of speech. Where expression of sexual orientation and gender identity were protected “speech”, the defendants violated the plaintiff’s right to freedom of expression under the 1st Amendment by denying her request to bring her girlfriend to the prom and to wear a tuxedo.

The second and third factors, whether the plaintiff faced a “substantial threat of irreparable injury” and whether the potential harm to the plaintiff outweighed that to the defendant, were also found to be satisfied. The Supreme Court had established, through prior case law, that violating 1st Amendment rights constituted irreparable harm. Further, the Court was not convinced that the defendants would be harmed by the plaintiff’s expression, because possible complaints would not disrupt the school prom and there was no reason to believe that the plaintiff’s participation at the prom would be disruptive. As the plaintiff’s freedom of speech had been curtailed by the defendants’ policies, the Court found that both criteria were met.

With regard to the fourth criterion, “that granting the injunction will not disserve the public interest”, the Court rejected the assertion that protecting the plaintiff’s “rights and encourag[ing] the free exchange of ideas and viewpoints” was in the public interest. Parents had already agreed to sponsor a private prom for all students, including the plaintiff and her date, and the Court considered that requiring the school to host the prom “at this late date would only confuse and confound the community on this issue”. In addition, the court found itself unsuited to the role of planning and overseeing a social event. Since an injunction would have been disruptive and contrary to the public interest, the motion was denied. The Court kept the case open should the plaintiff wish to amend her complaint and seek damages.


The case was subsequently settled out of court for $35,000 and the school agreed to implement an anti-discrimination policy that included sexual orientation.

McMillen v. Itawamba County School District, District Court of N.D. Mississippi, United States (full text of judgment, PDF)