Dancing Around Legal Landmines: Prom Guidance

Prom season is fast approaching – along with a myriad of related legal issues. To navigate those concerns, school officials should be aware of the following best practices to ensure a successful celebration.

Attendance

Attending prom is a privilege, not a constitutional right. School officials may revoke that privilege if a student fails to comply with reasonable conduct standards. A student cannot, however, be precluded from attending prom based on a protected classification (e.g., race, religion, or gender).

Dates

Schools can only regulate student prom dates for non-discriminatory reasons. For example, schools may prohibit students from bringing dates who are currently suspended or expelled from school. Schools may also adopt a policy that prohibits bringing dates from other schools; they cannot, however, exclude a prom date based on a protected classification. All policies must be applied uniformly and communicated to students and parents in writing in advance.

Legal trouble arises when schools refuse to permit same-sex dates. Courts have made clear that a school rule barring same-sex dates infringes on students’ First Amendment association rights and Title IX’s prohibition against sex discrimination. Imposing such a policy risks inviting legal problems, media scrutiny, and potential liability.

Dress Codes

Schools may impose dress codes at prom to ensure that students wear proper attire and to address legitimate concerns about safety or disruption. 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 could result in a complaint alleging sex discrimination based on a student’s failure to conform to gender stereotypes. Schools rarely succeed in such cases. Be sure to provide notice of any dress codes to students early, ideally by the time of prom ticket sales.

Searches & Breath Alcohol Tests

A school official may initiate a student search if there is “reasonable suspicion” the student violated the law or a school rule. A search includes inspecting a student’s person or property, such as a purse, bag, or cell phone. Any search must be justified at its inception and reasonable in scope and must be limited to areas where the item sought could reasonably be located. Conducting a strip search is never advisable for school officials and should be left to law enforcement.

If a school plans to administer random, suspicionless breath alcohol tests at prom, they should be performed only pursuant to a policy permitting such searches and after providing advance written notice to students. If your school intends to administer suspicionless 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. Thrun Policy Service subscribers should also review Policy 5103 (Search and Seizure) in advance to ensure that any potential testing complies with applicable requirements.

A student who tests positive on a breath alcohol test or appears intoxicated may be excluded from prom. School officials should ensure that any student who is suspected of having consumed drugs or alcohol has a safe ride home.

Dancing Style

Some schools have implemented rules prohibiting certain types of dancing (e.g., “twerking” or “grinding”). Clear and uniformly applied rules are generally permitted, but students could challenge dancing restrictions as a violation of their First Amendment right to freedom of expression. Such a challenge has not yet been heard by any appellate court, and a successful lawsuit is unlikely if the rules are reasonable, clear, and uniformly applied to all students.

Policies

Like all school policies, rules related to prom must be applied in a uniform and nondiscriminatory manner. A legitimate policy or rule can still become the basis for a lawsuit if it is not applied equally to all similarly situated students. Be sure to remind students that prom is a school-sponsored event, regardless of the location, and that all school rules remain in effect during the dance. Consistent reminders of expected conduct before the dance should help minimize problems on the big night.