A federal appeals court has revived a challenge to South Carolina’s law against “disturbing schools,” ruling that students who have been arrested under the law should have the chance to prove that it is unconstitutionally vague and violates their rights of free speech and due process of law.
The suit was filed by four current or former students and one juvenile justice organization with the backing of the American Civil Liberties Union. One plaintiff is Niya Kenny, who drew nationwide attention when she was arrested in 2015 after she videotaped a school resource officer who had violently removed another student from her classroom chair and slammed her to the floor.
The officer returned to the classroom at Spring Valley High School in Richland School District No. 2 and arrested Kenny under the Disturbing Schools Law, which makes it illegal for anyone to “to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this state.”
Although charges were dropped against Kenny and the other student (who isn’t involved in the civil suit), Kenny did not feel she could return to the high school, and she dropped out and received a G.E.D. instead.
Other plaintiffs include 17-year-old and 15-year-old female students who are still in high school and were charged for school altercations under the Disturbing Schools Law or the state’s disorderly conduct statute, which is also being challenged in the suit. Another plaintiff is Girls Rock Charleston Inc., a nonprofit group that serves at-risk youth and students who have been involved in the justice system.
A federal district judge in Charleston, S.C., dismissed the lawsuit, ruling that the plaintiffs lacked standing because the suit’s allegations of a fear or risk of future arrest do not show “imminent harm, an intention to engage in conduct proscribed by the challenged laws, or a credible threat of prosecution.”
In its March 15 decision in Kenny v. Wilson, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., unanimously reversed the district judge, at least as to the students who are still in school.
Those plaintiffs “do not rely on conjecture or speculation, but rather, on the fact that they attend school where they were previously arrested and criminally charged under the two South Carolina statutes, and they don’t know which of their actions at school will be interpreted to violate the statutes in the future,” said the opinion by Judge Albert Diaz.
Diaz said the students still in high school “face a credible threat of future arrest or prosecution under the Disturbing Schools Law and Disorderly Conduct Law” because they “regularly attend schools where they allege there may be future encounters with school resource officers or other law enforcement; they have been prosecuted under the laws in the past; and the defendants have not disavowed enforcement if plaintiffs engage in similar conduct in the future.”
The court said there is a presumption of a credible threat because the two statutes “restrict students’ expressive activity, including anything perceived as ‘disturbing,’ ‘obnoxious,’ ‘disorderly,’ or ‘boisterous'; and they tend to chill students’ engagement in the classroom as well as their ability to speak out against police and participate in conversations about policing.”
Diaz said the South Carolina disorderly conduct law may be unconstitutionally vague as applied to students because it contains “vague phrases” such as “conducting [oneself] in a disorderly or boisterous manner.”
Elementary and secondary students, the judge said, “are in many ways disorderly or boisterous by nature.”
The case now returns to the federal district court for further proceedings.
A version of this news article first appeared in The School Law Blog.