PROM: Short for “PROMise of Legal Problems”


We hope this post finds you warm, dry, and not buried in snow or surrounded by flood waters.  Unless you’re reading this outside of Nebraska, none of that is likely...

With spring (eventually) coming to Nebraska sometime between now and July 1, we wanted to raise some issues in advance of prom that schools should be considering.  

1. Before a tricky discipline issue inevitably comes up in the next few weeks, review your discipline policies (and determine how prom fits into them).

Prom is an extracurricular activity at most schools, meaning it could be a subject of discipline under both regular student discipline policies and activity discipline policies.   Students who get into trouble at school can be prevented from attending prom; students who get into trouble at prom can be kicked out of school. Knowing how your policies and handbooks address those issues now will help you avoid stubbing your toe over the next few weeks.

KSB is hosting a Student Discipline Webinar next Tuesday, March 19, which will cover all student discipline laws and requirements, including extracurricular activity consequences.  Spring is always a time when students test a school’s boundaries and prom weekend always increases calls we get about discipline issues.  Review your policies now, and don’t wait to be blindsided with what to do when a student fails the breathalyzer...

2. Figure out who is “hosting” the prom and post-prom activities, and be sure you keep appropriate legal separation for events not sponsored by the school.

Schools handle prom and post-prom differently in terms of whether they are  school-sponsored events or not. Most schools “host” prom, but post-prom is hosted by parents.  Other schools “host” both prom and post-prom. Both options are legitimate, but the legal consequences for each can be very different.

You should be very clear about who is sponsoring what.  You also need to think through whether private post-prom committees can use the school buses; whether the parents can use the school’s tax exemption to purchase supplies; liability considerations; supervision requirements; and many others.  

Simply saying, “Post prom is sponsored by the senior parents,” is not enough.  If they are using the school facilities, transportation, supervision, equipment, etc., then the intermixing may actually mean it is a school-sponsored event over which you have given up some necessary control.  Be clear, and be clear early in the process.

3. Talk to your Prom and Post-Prom planning committees about students with disabilities who may be attending.

Regardless of whether your school hosts one or both of the activities, all of the applicable disability laws (Section 504, ADA, IDEA) will likely apply to both events.  Even if parents sponsor post-prom, the coordination between prom and post prom will likely require you to accommodate the needs students with disabilities. You should be thinking about the needs of your students: Is the post-prom location wheelchair accessible, and is there a way that the student with ASD can still attend the dance?

Keep in mind that none of the applicable disability laws permit you to foist compliance obligations onto parents.  Things as simple as transportation to-and-from the events may require “related services” for students who require regular transportation services.

4. Have clear policies and plans for drug and/or alcohol testing as a condition of coming to prom.

More and more schools are adopting mandatory random drug/alcohol/nicotine testing for students participating in extracurricular activities.  Most schools without random testing still administer breathalyzer tests at prom.

Here’s the rub: the ACLU of Nebraska has taken the position that including students in extracurricular drug testing policies as a condition of attending school dances is not permitted.  The ACLU has said, in the context of a school’s drug testing policy, “[The school’s] proposal has one provision that may be too broad and an unconstitutional overreach: testing at school dances.”  However, the ACLU concedes that “some courts have upheld breathalyzer testing at school dances.”

We do not agree with the ACLU’s assessment regarding drug testing, though we want to raise the issue.  We believe the legal basis for drug testing students in extracurriculars--namely the very minimal right (if any) to participate in sports and activities--applies equally to dances which are a privilege and not a right.  However, if your school conditions attendance at dances like prom and homecoming on submitting to random testing, the ACLU may challenge it. You should talk that through with your school’s attorney.

5. Be careful with rules like “no same-sex dates” and requirements  that prom “king” and “queen” be based on a student’s biological sex.

Title IX, as most of you know, seems like it’s constantly in a state of flux.  Between wild swings of administrative enforcement positions and the new proposed regulations, it’s tough to know how to respond when a student asks if they can bring a same-sex date.  Is that protected by Title IX, or not? What if a transgender male, biologically female, asks to be considered for prom king? The answers, of course, are not very clear.

It’s a matter of “when” and not “if” these questions will happen at your school, so we recommend considering the following to avoid a legal issue and to avoid stigmatizing any student for any reason.  Have a one-ticket-per-attendee rule, and don’t give “discounts” or special treatments to “couples.”  Have a “promenade” of your snazzily-dressed students, but don’t have them walk as “couples.” Consider whether you will allow students to bring “dates” who are not current students of the school, whether that’s a recent graduate or a student from a neighboring school.  Consider doing away with “king” and “queen” entirely and replacing it with a “community service” award or something similar.

Simply saying, “No,” comes with legal risks.  Although we’re sensitive to the political and traditional considerations at all school districts, planning ahead is the best way for boards and administrators to avoid legal pitfalls.

As with all of these issues, the legal complexities should be worked out in advance if at all possible.  If you haven’t reviewed these and related considerations recently, now’s the time. We recommend you do so soon and collaborate with your school’s attorney, or call Karen, Steve, Bobby, Coady, or Mandy.