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Unconstitutional laws used to prosecute ‘obnoxious’ or ‘boisterous’ school children struck down by federal court

A school resource officer is shown grabbing student Niya Kenny out of a classroom.

A school resource officer is shown on camera forcefully grabbing a student.

A federal appeals court ruled Wednesday that South Carolina laws making it a crime for children to be “boisterous” or “obnoxious” near school grounds do not pass constitutional muster.

Several students challenged a pair of South Carolina statutes in court after a 2015 viral video showed a school resource officer forcefully removing a student from her chair and slamming her to the floor over her use of a cell phone. Niya Kenny, who recorded the incident, was arrested as well for causing a “disturbance.”

The Carolina Youth Action Project, backed by the American Civil Liberties Union, sued in 2016 and challenged South Carolina’s “disturbing schools” and disorderly conduct laws. One statute 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.” The other criminalizes acting “in an obnoxious manner” near a school.

A split panel of the U.S. Court of Appeals for the Fourth Circuit struck down the statutes Wednesday for being unconstitutionally vague and exposing children to criminal prosecution without sufficiently specific guidance.

Circuit Judge Toby Heytens, a Joe Biden appointee, wrote for the two-member majority of the Fourth Circuit.

Heytens detailed some statistics about South Carolina’s zeal for prosecuting school-age children under the law. From 2014 to 2020, Hetyens said, the Palmetto State referred 3,735 kids between 8 and 18 for prosecution for disorderly conduct that was “school-related.” During an earlier six-year period, the “disturbing schools law” was used to prosecute over 9,500 students, including children as young as seven.

Heytens pointed out that the “enthusiasm with which one South Carolina school district referred its students for criminal charges” was so extreme that it actually prompted local prosecutors to plead for schools to resolve conflicts themselves instead of referring so many cases for criminal charges.

What’s more, Heytens noted, Black students were charged with disorderly conduct about seven times as much as white students.

The judge considered the statute’s prohibited conduct against the context of children’s usual behavior, and questioned whether South Carolina was regulating behavior that was truly criminal in nature.

“For those who have met—or been—elementary or secondary school students,” Heytens began almost sarcastically, “the 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 judge said that per the statute’s prohibitions, “any person passing a schoolyard during recess is likely witnessing a large-scale crime scene.”

Heytens said that given the legal position advanced in the case, he was satisfied that South Carolina did not actually seek to criminalize “childish shenanigans.” Still, the statutes did not adequately detail which conduct rose to the level of criminality. Moreover, given the racial disparity in the statute’s use, Heytens wrote, “The Constitution prohibits this type of inequitable, freewheeling approach.”

The judge also detailed the experience of one particular student—known in court documents as S.P.—whose mother sued on her behalf after she was prosecuted for disorderly conduct.

After S.P. was called “fat, ugly, and manly” by a classmate, S.P. confronted the student, then sat at a table with friends in the school library. S.P. then refused to leave the table, and was ultimately escorted out by a student resource officer. As she left, S.P. said “fuck you” to the student who had insulted her, and “fuck all of you” to a group of students who were clapping and mocking her as she left.

S.P. was later charged with disorderly conduct for her use of profanity.

Heytens said that while the panel agreed that S.P. “misbehaved,” the court’s majority “do[es] not agree her misbehavior unambiguously fell within the bounds of a criminal disorder law.”

The judge also clarified that the court’s ruling centers on the requirements that criminal laws are sufficiently clear and does not seek to curtail schools‘ power to discipline students when necessary.

Per the opinion:

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. Consistent with Tinker and the decisions following it, South Carolina educators possess “comprehensive authority . . . consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” 393 U.S. at 507. As part of that authority, schools may adopt and enforce codes of conduct, many of which appear to cover much of the behavior punished under the disorderly conduct and disturbing schools laws.

“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,” Heytens wrote.

Heytens commented in the ruling that “if South Carolina prosecuted all unnecessary disturbances, loitering, or obnoxiousness in schools, judicial dockets would be overrun by preteens.”

U.S. Circuit Judge Paul Niemeyer, an appointee of George H.W. Bush, stood in dissent and disagreed that the statute was too vague to withstand scrutiny. Niemeyer said that the state is “owe[d] deference” in it efforts to stop disruptions in schools, “especially in this age when schools are under stress.”

The ACLU of South Carolina praised the plaintiffs for “standing up for other students, starting in a SC classroom and all the way to federal court.”

[screengrab via WIS News 10]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos