Juvenile Justice

South Carolina laws that prosecute kids for ‘disorderly’ conduct are unconstitutional, 4th Circuit says

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A federal appeals court on Wednesday struck down two South Carolina laws that punish elementary and secondary school students who act “disorderly,” use “obscene” language or “act in an obnoxious manner” in or near a school.

In a Feb. 22 decision, a three-judge panel of the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled that South Carolina’s disorderly conduct law and disturbing schools law are unconstitutionally vague. The panel said they fail to warn students about what behaviors could expose them to criminal penalties and lack sufficient guardrails to prevent arbitrary enforcement or discrimination.

“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,” the 4th Circuit said. “But unlike the policy in Tinker [v. Des Moines Independent Community School District] or the codes of conduct maintained in schools throughout the country, the laws challenged here expose minors to criminal prosecution and all the collateral consequences that follow.

“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.”

Several students who had been referred or charged under the disorderly conduct or disturbing schools laws and a nonprofit organization that advocates for at-risk youths brought the lawsuit in 2016.

Education Week reports that one of those students, Niya Kenny, had been arrested the previous year after videotaping a school resource officer who took another student from her chair and slammed her into the floor.

A district court dismissed the case for lack of standing, but the 4th Circuit reinstated it in 2018. The district court later certified the challenge as a class action and ruled against South Carolina’s disorderly conduct and disturbing schools laws.

The disorderly conduct law makes it a misdemeanor to “conduct [one]self in a disorderly or boisterous manner” “at any public place” or use “obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church,” according to the 4th Circuit decision.

Similarly, the disturbing schools law makes it a misdemeanor “for any person willfully or unnecessarily (a) 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, (b) to loiter about such school or college premises, or (c) to act in an obnoxious manner thereon.”

The 4th Circuit said “neither law represents an empty threat,” pointing out that 3,735 people between ages 8 and 18 were referred for prosecution under the disorderly conduct law during a six-year period that ended in July 2020. More than 9,500 students—including children as young as age 7—were referred for prosecution under the disturbing schools law during a period of less than six years that ended in March 2016.

“For those who have met—or been—elementary or secondary school students, a question naturally arises: How does this statute objectively distinguish criminally disorderly, boisterous, obscene or profane childhood misbehavior from garden-variety disorderly, boisterous, obscene or profane childhood misbehavior?” the appeals court said. “The [state] attorney general offers no satisfying answer, nor can we discern one for ourselves.”

The 4th Circuit also found that arbitrary enforcement of the laws by school resource officers and other school officials generated disparate outcomes.

“Evidence submitted to the district court shows that between 2015 and 2020, Black youth were charged with disorderly conduct for incidents in schools at roughly seven times the rate of their white peers,” the appeals court said. “The Constitution prohibits this type of inequitable, freewheeling approach.”

Judge Paul V. Niemeyer dissented from the majority opinion, writing that “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.”

Reuters also has coverage of the decision in Carolina Youth Action Project v. Wilson.

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