We’ve Got a New “Prom-blem”

Even under normal circumstances, prom season requires school officials to navigate a dance floor filled with legal landmines. This year, the challenges are heightened by COVID-19. With the recent loosening of gathering limits, school officials are considering whether prom is possible this year and, if so, what it might look like. Here are a few new (and old) considerations.

MDHHS, Local Government, and Health Department Orders

On March 19, 2021, the Michigan Department of Health and Human Services (MDHHS) issued an order on face masks and gatherings. Importantly, this Order is effective only through April 19, 2021, meaning a new MDHHS order with new face mask and gathering re­quirements will likely be in effect during prom season.

In addition to any MDHHS order, school officials also must ensure that prom complies with all local gov­ernment and health department epidemic orders in ef­fect on the prom date. Accordingly, school officials should (1) communicate to students and parents that whether or how prom may occur this year is an evolv­ing issue, subject to change, (2) closely monitor any new face mask and gathering orders, and (3) work with local health departments and government officials to ensure compliance with all applicable orders.

We also recommend that schools include liberal cancellation terms in vendor contracts so that schools may cancel or modify the contracts without penalty if necessary to comply with state and local orders.

Gathering Limits

A “gathering” under the March 19^th Order occurs when at least two people from more than one house­hold are present in a shared space. The Order generally defines a “household” as “a group of persons living to­gether in a shared dwelling with common kitchen or bathroom facilities.”

The Order distinguishes between indoor and outdoor gatherings held in residential and non-residen­tial facilities and modifies general capacity limits for in­door and outdoor gatherings. Indoor non-residential gatherings must not exceed 25 people, and outdoor non-residential gatherings must not exceed 300 people, absent an exemption.

One exemption applies to “entertainment and recreational facilities,” such as auditoriums, arenas, concert halls, performance venues, stadiums, and “the like.” Gathering requirements that apply to these facili­ties differ among facility types. For example, gatherings at indoor stadiums and arenas must, among other things, be limited to 375 patrons if the venue has a seat­ing capacity of up to 10,000, and 750 patrons if the venue has a seating capacity over 10,000 people.

If your prom includes more than 25 people and would occur in an indoor venue that is not exempt from the general 25 person indoor gathering limit, consider exploring outdoor options. As noted above, prom will need to comply with orders in effect on the date of the event, so school officials should be flexible when planning the event.

Social Distancing

Another prom planning consideration is ensuring proper social distancing. The MDHHS March 19^th Order requires schools to design a gathering to encourage and maintain physical distancing and to ensure that per­sons not part of the same “group” maintain six feet of distance from one another to the extent possible. The MDHHS order does not define “group,” but we recom­mend either equating the term with “households” to en­sure compliance or, alternatively, following your local health department’s interpretation of the term. Addi­tionally, each person in every gathering must wear a face mask unless an exception applies.

Consequently, schools should “think outside the box” for what prom may look like this year. In particu­lar, we recommend considering alternatives to group dancing since such dancing is not conducive to maintaining six feet of physical distancing.

Attendance

Students have no legal right to attend prom. Attending prom is a privilege, subject to revocation for noncompliance with reasonable conduct standards. School officials may not, however, prohibit a student from attending prom based on any protected classification (e.g., race, religion, or gender).

Searches

School officials must comply with the reasonable suspicion standard to search a student. Any search must be justified at its inception and reasonable in scope. Strip searching students 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 be held personally liable to the student for money damages.

Breath Alcohol Tests

Administering a breath alcohol test to a student is a search and must meet the 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.

In contrast, a random, suspicionless breath alcohol test may only be administered consistent with a policy permitting such searches in connection with voluntary activities (such as prom or extra-curricular athletics) and after advance written notice is provided. If your school intends to administer random breath alcohol tests, we recommend including language directly on prom tickets stating that students consent to random, suspicionless searches, which may include a breath alcohol test, as a condition of entry into prom.

A student who tests positive on a breath alcohol test or who appears intoxicated may be excluded from prom. Be sure, however, that any student excluded from prom due to intoxication has a safe ride home.

COVID-19 Monitoring and Temperature Checks

Because participating in prom is a privilege (not a right), schools have greater latitude to require monitor­ing or temperature checks as a condition of entry into prom. School officials may require that parents (or stu­dents aged 18 years or older) agree to perform a home screening for symptoms of COVID-19 and, if requested by the school, to complete and submit a school-pro­vided form documenting these screenings. If your school intends to administer temperature checks, we recommend (as with breath alcohol tests) including language directly on prom tickets stating that students consent to temperature checks as a condition of entry into prom.

Dress Codes

Schools may impose dress codes at prom to ensure that students wear proper attire. We recommend noti­fying students of dress code requirements well in ad­vance of prom. This year, your dress code should include the requirement to wear face masks.

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 alleging sex discrim­ination based on a student’s failure to conform to gen­der stereotypes. In such cases, the school rarely prevails.

Dates

Schools may regulate who a student may bring as a date on a basis that is not unlawfully discriminatory. For example, schools may prohibit students from bring­ing dates who are currently suspended or expelled from school or who are otherwise banned from school functions. Schools also may adopt a policy about bring­ing dates from other schools. All policies must be ap­plied uniformly. Keep in mind that MDHHS currently requires that people not from the same “group” must maintain six feet of social distance.

Policies

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

Be sure to remind students that prom is a school-sponsored event, regardless of location, and that all school rules remain in effect during the event. Con­sistent reminders of expected conduct before prom will minimize problems on the big night.

After a difficult year, students are craving a bit of normalcy. Regardless, school officials must en­sure that prom complies with all applicable public health orders, which may mean having a less traditional prom.