The Case of the Decoy Prom

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http://counterpunch.com/hilden04142010.html


The School, the Court and Constance McMillen


The case of Constance McMillen – the Mississippi teen who invited her girlfriend to her high school prom, but was told she couldn't attend with a girl, or wear a tux as she had planned – has made national news as a blatant instance of discrimination.

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After that, Constance asked for the ACLU's help, and the ACLU stepped in. But even then, the discrimination continued. When the school's prom was cancelled, the school is alleged to have conspired with students' parents to throw a secret private prom at a country club. Apparently, Constance was sent to a tiny "decoy prom" instead. This is segregation, pure and simple.

On the facts, then, there is no question that this is a case of virulent hatred that is based on difference – in this case, ugly homophobia. Interestingly, though, the judicial decision in the McMillen case rested on First Amendment, not anti-discrimination, grounds.

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The First Amendment Argument: A Mix of Speech and Conduct that Is Constitutionally-Protected

Ultimately, the court denied Constance's motion for a preliminary injunction – which, in this case, would have been an order forcing the school to let her go to the prom. But it also held that Constance had fulfilled three out of four of the factors necessary for the preliminary-injunction showing – and that holding ought to help her later in the case, if it continues (as it should).

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Irreparable Injury

The second factor in the preliminary-injunction analysis was whether Constance would suffer irreparable injury, absent an injunction forcing the high school to allow her to go to the prom.

Here, the court simply cited precedent holding that even the temporary loss of First Amendment freedoms constitutes irreparable injury, as a matter of law, for purposes of a preliminary injunction. And indeed, the precedent is dispositive when it comes to this factor.

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Weighing the Parties' Injuries Against Each Other

The third factor was whether the injury to Constance would outweigh any damage to the school board were she to be allowed to attend the prom.

The school board claimed that allowing Constance and her girlfriend to attend the prom would disrupt its ability to run the schools. However, the court found no factual support in the record for that claim. As a basis for a decision, that's fair enough – but I think the court should also have gone on to reject the claim as a matter of law, not just based on the absence of supporting facts.

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The Reason Why the Court Ultimately Denied the Preliminary Injunction

After the three favorable rulings on individual factors that I described above, one might think that Constance would have gotten the preliminary injunction she sought. But oddly, she lost on the fourth factor – because the court believed that an injunction would disserve the public interest.

More specifically, the court held that a preliminary injunction was not in the public interest because it reasoned that Constance could simply go to the newly-scheduled private prom, which the court had been told would be sponsored by parents and open to all students.

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Courts can't just trust; they need to verify. Now, it's possible that all the culprits can evade punishment: The private parties may not have done anything wrong (as convening exclusive private groups is legal) and it's possible the ACLU will not be able to prove that the school – the government actor here – was involved in the prom ruse. The court's supposed solution, then, might have tied its hands. But lets hope the ACLU goes back to court soon, to see if some kind of remedy may still be fashioned.

The "decoy prom" outcome was a disaster that could have been prevented. Fortunately, this kind of gamesmanship is unlikely to occur again – for no federal judge is likely to repeat this mistake.
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