home > lgbt equality or student rights The Right of Same-Sex Student Couples to Participate in their High School Dances, Proms, and Promenades Click here for a PDF version >> In recent years, Utah students have taken same-sex partners to their high school dances and proms, and have tried to participate fully as same-sex couples by promenading with other couples and presenting themselves to their families and communities. Unfortunately, school administrators have not always been supportive of these pioneering students: same-sex couples have been required to obtain parental permission before attending prom; they have been prohibited from participating in the promenade; and they have even been asked to leave the dance. In light of these controversies, the ACLU of Utah has created the following brief outline of the rights of same-sex student couples to participate in their high school dances and proms. Utah law Any school policy prohibiting the participation of same-sex couples in dances, proms, or promenades violates the Utah Administrative Code governing the Professional Practices and Conduct for Utah Educators. Section R686-103-6 states: An educator shall: … (e) not exclude a student from participating in any program, deny or grant any benefit to any student on the basis of race, color, creed, sex, national origin, marital status, political or religious beliefs, physical or mental conditions, family, social, or cultural background, or sexual orientation, and may not engage in a course of conduct that would encourage a student to develop a prejudice on these grounds or any others. Prohibiting same-sex couples from participating in a high school dance, prom, or promenade, or from enjoying the same benefits co-ed couples enjoy, denies them a benefit to which they are entitled. Further, the denial is a course of conduct that encourages other students to develop or maintain prejudices against same-sex couples based on the students’ perceived sexual orientation. Free expression and association In addition, prohibiting same-sex student couples from participating in a dance, prom, or promenade violates students’ rights of free expression and free association guaranteed by the First Amendment of the United States Constitution. This was the conclusion of a federal court in a 1980 case in which a Rhode Island student successfully sued his school after he was not allowed to attend his prom with a male date. The court stated that unless the school had a solid basis to believe that a same-sex couple would cause “severe disruption” to the school environment—a claim that the school could not make—it had to permit everyone to attend with their chosen dates. According to the court, “meaningful security measures are possible [to prevent violence erupting at the prom], and the First Amendment requires that such steps be taken to protect rather than to stifle free expression [of gay students].” Fricke v. Lynch, 491 F. Supp. 381 (D. R.I. 1980). Equal protection More recently, in 1996, the U.S. Supreme Court ruled that a policy based on nothing more than animosity or prejudice toward lesbians and gay men violates the equal protection clause of the Fourteenth Amendment of the United States Constitution. In other words, schools must have a rational basis for discriminating against gay or lesbian students. Romer v. Evans, 517 U.S. 620 (1996). Under the equal protection clause, schools cannot place restrictions on same-sex couples, such as requiring parental permission before attending prom, that they do not place on co-ed couples. Sex discrimination Title IX is a federal statute that bars discrimination on the basis of sex in all educational programs that receive federal funding. For example, under Title IX, schools are prohibited from discriminating on the basis of sex in prom invitations. Freedom from harassment It is unfortunate that same-sex couples who attend and participate in their high school dance, prom, or promenade may face harassment from other students. Schools and school administrators have an affirmative duty to protect all students from harassment, and when schools are aware of, or concerned about, harassment based on perceived sexual orientation, they have the responsibility to take steps designed to prevent further harassment. Indeed, federal courts have held schools liable when they failed to stop anti-gay harassment. In April 2003, a federal appeals court took this precedent a step further and said that teachers and administrators must take action to eliminate harassment when they learn that lesbian and gay students are being abused at school. See Flores v. Morgan Hill Unified School District, 324 F.3d 1130 (9th Cir. 2003). Remember that under the equal protection clause, schools may not place restrictions on same-sex couples that do not apply to co-ed couples, even if administrators maintain that these restrictions are for students’ safety. Treating same-sex couples differently does not make the situation safer for lesbian and gay students, and administrators must find a way to create a safe school environment that does not unfairly burden one group of students. (April 2005)

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