More on the prom case: A ringing (but oddly not working out) endorsement of student First Amendment rights

I want to reiterate that Judge Davidson’s opinion is a ringing endorsement of Constance McMillan’s First Amendment rights. He finds that her choice of who to take to the prom is expressive conduct, that her choice of what to wear is expressive conduct, and that she would suffer irreparable harm from the denial of her right to that expression. Those are important hurdles she overcame, as is the hurdle that denial of those rights would cause her greater harm than an order requiring the school to hold the prom would cause the school system.

The court’s decision to not make the next step (an order that the school go on with the prom) must have had to do with a kind of caution about not wanting to mandate the school do something. I’m going to quote again a part of the opinion to highlight it, because I think this is the heart of the reasoning:

NMC
3/23/10