“Prom-blems” Abound: A Primer


March 29th, 2019

Prom season is upon us — along with a slew of potential legal landmines. Below are best practices for navigating some common issues.

Attendance

There is no constitutional 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 triggers a different legal standard and should only be administered consistent with a policy permitting such searches and after advance written notice is pro­vided. 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 in a breath alcohol test or who appears intoxicated may be excluded from prom. Be sure, how­ever, that any student excluded from prom for alcohol consumption has a safe ride home.

Vaping

Schools may prohibit students from using or possessing vape pens, Juuls, or other electronic nicotine delivery system devices on school property or at school events, including prom. School officials should review board policies and student handbooks to ensure that any prohibition against smoking or the use of tobacco includes vaping products, vaping liquids, and other such devices. School officials should notify students in writing that such devices are prohibited at 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. 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 nondiscriminatory basis. 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.

Trouble arises, however, when schools refuse to permit same-sex dates. Case law has made clear that such restrictions infringe on students’ First Amend­ment “association” rights and 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 dancing (e.g., “twerking” or “grinding”). Clear and uniformly applied rules are generally permit­ted, although the possibility exists that a student could challenge such dancing rules as violating his or her First Amendment right to freedom of expression. Such a challenge has not yet been heard by any court, and a successful challenge 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 become the basis for a lawsuit if it is not applied equally to all students. Simi­larly, policies that are 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 dance. Con­sistent reminders of expected conduct before the dance help minimize problems on the big night.