A federal appeals court on Wednesday struck down South Carolina laws against disorderly conduct in schools and “disturbing schools,” ruling they were unconstitutionally vague as they have been applied to K-12 students.
The decision comes in a high-profile case that implicates police in schools, racial disparities in law enforcement involving students, and the use of arrests or criminal referrals for conduct that was long considered a matter of school discipline.
During a six-year period ending in July 2020, court papers say, there were 3,735 referrals of people between the ages of 8 and 18 for prosecution for “school-related” incidents under South Carolina’s disorderly conduct law, which prohibits disorderly, boisterous, obscene, or profane language within earshot of a school.
“The disorderly conduct law fails to give South Carolina’s schoolchildren fair warning about what it prohibits and vests practically unfettered discretion in those charged with its enforcement,” said a 2-1 decision in Carolina Youth Action Project v. Wilson by a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond. Va.
According to evidence submitted in the case, Black students were charged under the South Carolina disorderly conduct law for incidents in schools from 2015 to 2020 at a rate roughly seven times of their white peers.
The disturbing schools law, meanwhile, long barred anyone from interfering with or disturbing a school, as well as loitering or acting in an obnoxious manner around a school. During a roughly six-year period ending in March 2016, more than 9,500 students were referred for prosecution—including children as young as 7 years old. (The opinion suggests, without providing figures, that prosecutors used their discretion and not all students referred were charged under either law. The disturbing schools law was amended in 2018 to apply only to non-students.)
“It is hard to know where to begin with the vagueness problems with this statute,” the court said of the disturbing schools law. “If South Carolina prosecuted all unnecessary disturbances, loitering, or obnoxiousness in schools, judicial dockets would be overrun by preteens.”
The terms “disorderly,” “boisterous,” “obscene,” and “profane” do not explain the scope of the disturbing schools law or limit the discretion of those charged with enforcing it, the 4th Circuit said.
“Based solely on the dictionary definitions of the statutory terms—particularly disorderly and boisterous—it is hard to escape the conclusion that any person passing a schoolyard during recess is likely witnessing a large-scale crime scene,” Judge Toby Heytens wrote for the majority.
A viral incident involving a school resource officer led to lawsuit over the state laws
The challenge to the laws was filed in 2016 by several students and one juvenile justice organization with the backing of the American Civil Liberties Union. One of the plaintiffs, Niya Kenny, 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. 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.
A federal district court initially threw out the challenge, ruling the plaintiffs lacked legal standing. But the 4th Circuit reinstated the case in 2018. The district judge then certified the challenge as a class action and ruled against the two laws.
South Carolina Attorney General Alan Wilson, a Republican, appealed that decision to the 4th Circuit, arguing that the laws are not impermissibly vague and that some students in the broad class of plaintiffs may actually want them enforced in schools. Wilson also challenged the remedy ordered by the district court, which includes a classwide expungement of records of all students who were referred or charged under the two laws.
The 4th Circuit court rejected all of the attorney general’s arguments, including that the referred students should be required to expunge their records on an individual basis.
The class members “are uniformly entitled to relief because the laws could not authorize or legitimize any elementary school student’s arrest, charge, or delinquency adjudication in the first place,” the court said.
Judge Paul V. Niemeyer, writing in dissent, said he would uphold the disorderly conduct statute as it applies to students and throw out the expungement remedy under the disturbing schools law.
“For years, South Carolina has applied its Disorderly Conduct Statute and Disturbing Schools Statute to address disruption in schools, and there is little evidence that school officials, students, and parents have had difficulty in understanding what conduct was prohibited,” Niemeyer said. “We owe the state deference in its efforts to address school disruption problems—especially in this age when schools are under stress—by recognizing the presumption that its statutes are constitutional.”
Heytens, in the majority opinion, said, “Lest there be any confusion: We do not hold that schools are powerless to discipline elementary and secondary school students who disturb the learning environment.”
But “the laws challenged here expose minors to criminal prosecution and all the collateral consequences that follow,” he wrote. “Laws imposing such weighty costs on free expression must define their bounds, so students have fair warning about what is prohibited and the discretion of those who enforce the laws is adequately constrained.”