A few weeks ago
that the Itawamba County School Board, which cancelled its prom this spring rather than allow lesbian senior Constance McMillen to attend in a tux with her girlfriend, was an anomaly in the South. When the ACLU sent the board a complaint letter on McMillen’s behalf, it had every reason to reinstate the prom and change its policies. In recent years, most southern schools accused of discrimination against LGBT students have acknowledged the error of their ways or been forced to do so by the courts.
This morning the ACLU announced that the Itawamba County School District filed an offer of judgment claiming, “It is and shall be the policy of Itawamba County School District not to discriminate on the basis of race, age, national origin, ethnicity, sex, sexual orientation, gender, or religion in any of the education or extracurricular programs, activities, and services” run by the school.
It sounds like McMillen’s school, like all of those other southern schools, came around. In the ACLU press release , McMillen’s lawyer, Christine Sun, declares McMillen’s case “a federal court precedent that can be used to protect the rights of students all over the country to bring the date they want to their proms.”
The problem is that the offer also states, near the end, “Defendants believe in good faith that the Plaintiff’s rights under the United States Constitution have not been violated by any act omission, policy, custom, or practice of the Defendants.”
If the school district doesn’t consider any of its actions discriminatory, it’s unclear what the new anti-discrimination policy will protect against. Bias-motivated violence? Fortunately, that wasn’t the problem to begin with.
When I spoke to Sun today, she maintained that the school district has effectively admitted fault through its actions. The district never appealed the judge’s preliminary ruling that it had violated McMillen’s constitutional right to freedom of expression by requiring gender-conforming attire and opposite-sex dates at the prom and then by canceling the prom altogether. It will be paying all of McMillen’s attorney fees, which are substantial at this point, and it has agreed to pay McMillen $35,000, which amounts “to a lot of money in Mississippi,” Sun said. She has a point about the amount-the median annual income in Itawamba County is $37,580, and the median home value $83,491. Most importantly, the school district has now allowed a judgment to be entered against it in federal court. Sun says McMillen also took the offer to put the case behind her. “A trial would have meant a lot more time on behalf of her and her attorneys. What she really wanted out of this case was to make sure that this type of discrimination wouldn’t happen to other students. The policy they offered goes a long way.”
It is true that, however uncommitted to the new policy the district sounds, it must implement it. Should the district, for instance, hinder the formation of a gay-straight alliance, which Constance has heard some students are trying to start at Itawamba High, the ACLU will come calling once more. Federal courts from Texas to Florida have protected gay-straight alliances on school and college campuses. If the ACLU hears of a teacher or student being somehow persecuted for proposing such an alliance, says Sun, “we will definitely be back in court. Nothing stops us from suing them again.”
In the meantime, Constance will be attending community college at Southwest Tennessee Community College in Memphis, the city whose Gay and Lesbian Community Center honored her at its Prom for All . Two years down the road she plans to matriculate to the University of Southern Mississippi, which advocates strongly for its LGBT community , where she’ll live close to her mom, sister, and her mother’s partner. She expects she and her mom will sometimes go out to local gay bars together. No word on whether going to a gay bar with your gay mom when you’re a lesbian is as awkward as going to a straight bar with your straight mom can be when you’re straight, but they’ll find out, and won’t need to leave Mississippi to do it.