A Primer on “Prom-blems”

Prom season is upon us   ̶  along with all the accompanying legal issues. Below are tips for navigating common “prom-blems” as well as some “prom-posals” to address them.

Attendance

There is no constitutional “right” to attend the prom. Attending the prom is a privilege, subject to revocation for non-compliance with reasonable conduct standards. Schools may not, however, prohibit a student from attending prom based on a protected classification, e.g., race, religion, sex.

Searches

School officials must comply with the “reasonable suspicion” standard to search a student. Under this standard, the search must be justified at its inception and reasonable in scope. Strip-searching a student is almost never reasonable in scope and may result in the loss of a school official’s qualified immunity, meaning that the school official may risk personal liability for money damages.

Breath Alcohol Test

Administering a breath alcohol test to a student is a “search” and must meet the same standards described above. If a student smells of alcohol or exhibits behavior consistent with intoxication, a breath alcohol test is justified and reasonable in scope.

A random, suspicionless breath alcohol test triggers a different legal standard and should only be administered consistent with a policy permitting such searches and after advance written notice is provided. A student with a positive breath alcohol result may be excluded from the prom.

Dress Codes

Schools may impose dress codes at the prom to ensure that students wear proper attire. Schools may not impose gender-specific dress codes (e.g., female students must wear dresses; male students must wear tuxedos). Imposing gender-specific dress codes may result in a lawsuit or complaint to the Office for Civil Rights alleging sex discrimination under Title IX based on a student’s failure to conform to gender stereotypes. In such cases, the school rarely prevails.

Dates

School officials may regulate a student’s prom date choice on a nondiscriminatory basis. For example, schools may prohibit students from bringing dates who have been suspended or expelled from school or who are otherwise banned from school functions. Schools may also adopt a policy about bringing dates from other schools. All such policies must be applied uniformly.

Trouble arises, however, when schools refuse to permit same-sex dates. Case law has made clear that such restrictions infringe on the students’ First Amendment “association” rights, as well as Title IX’s prohibition against sex discrimination. Imposing such a policy invites media scrutiny and legal action.

Dancing Style

Some schools have implemented rules prohibiting certain types of sexually suggestive dancing (e.g., “freak” dancing or “twerking”). Clear rules that are applied uniformly are generally permitted, although the possibility exists that a student could challenge such dancing rules as violating the First Amendment right to freedom of expression. Such a challenge has not yet been heard by any court, and a successful challenge is unlikely as long as the rules are reasona­ble, clear, and neutrally applied.

Rules

Rules related to the prom must be applied in a uniform and nondiscriminatory manner. A legitimate rule can become the basis for a lawsuit if it is not ap­plied equally to all students. Similarly, rules that are discriminatory or vague will invite legal challenge.

It is important to remind students that the prom is a school-sponsored event regardless of its location, and that all school rules remain in place during the dance. Consistent reminders of expected conduct be­fore the dance may help to minimize problems on the big night.