Remember when that Pennsylvania judge got sentenced for taking kickbacks from private prisons to divert children into the carceral system? A lot of folks remember that story through the rosy glasses of thinking the school-to-prison pipeline amounted to “one bad actor,” as opposed to that judge just being the one stupid enough to get caught. Because that system is alive and well a lot of places around the country, and it took until 2023 for the Fourth Circuit to pump the brakes.
Last week, the Fourth Circuit struck down a pair of South Carolina statutes that schools had used to refer at least 9500 kids between 7 and 18 for prosecution over a six year span. Surely the proscribed behavior must have been truly serious to elevate school behavior to the level of criminality…
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South Carolina law makes it a crime for elementary and secondary school students to act “disorderly” or in a “boisterous manner”; use “obscene or profane language”; or “interfere with,” “loiter about,” or “act in an obnoxious manner” in (or sometimes near) a school. Our primary question is whether the challenged laws give students fair warning about what expressive behaviors may expose them to criminal penalties and contain sufficient guardrails to prevent arbitrary or discriminatory enforcement. Like the district court, we hold the answer is no.
I should certainly hope so!
“Act in an obnoxious manner” describes the sum total of childhood behavior from age 1 to age… I dunno… age 21. A fact that wasn’t lost on Judge Toby Heytens writing for the majority:
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 Attorney General offers no satisfying answer, nor can we discern one for ourselves.
The record revealed that, in practice, law enforcement relied upon “a glorified smell test to determine whether a student’s disorder is disorderly enough to be criminal.” The prosecutors tried to recast this textbook definition of “void for vagueness” as a “totality of the circumstances” test, which earns an A for effort but that’s about all.
Unsurprisingly, this unbridled discretion generates starkly disparate outcomes. Indeed, 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 Constitution prohibits this type of inequitable, freewheeling approach.
What a shock. As a reminder, the enthusiasm that schools show for siccing law enforcement on children of color is the best of the nearly million reasons why “arming the teachers” is the absolute worst solution to school shootings. Speaking of which, one of the individuals behind this suit was charged upon the mere suspicion that he might become a school shooter, and while the school deserves credit for being proactive, there’s a line between taking the threat of violence seriously and going Minority Report on a kid.
Speaking of Minority Report, despite the straightforward nature of this case, it still managed to be a 2-1 decision. Judge Paul Niemeyer, never one to shy away from trampling on the Fourteenth Amendment, dissented with some grumbling about as applied technicalities before just giving up and saying he thinks neither statute is unconstitutionally vague.
This is a conclusion he reaches despite this being his own description of one of the cases:
A classmate had been making fun of S.P. [a female freshman] throughout the morning, and S.P. loudly told her to “stop talking about” her. After the library summoned the school principal and the principal told S.P. that she needed to leave the library with him, S.P. refused. The principal then called a school resource officer to the library, who also directed S.P. to leave the library to speak with him and the principal, and again S.P. refused. Finally, when S.P. did decide to leave, she announced that she would “rather be home than in this hell” and said to the classmate, “Fuck you.” Students in the library began clapping as S.P. was leaving the library, and S.P. said to her classmates, “Fuck all of you.” S.P. was suspended from school for four days and later charged with violating the Disorderly Conduct Statute.
Suspension, sure. But if you read that and think, “this child should have known we would get the district attorney involved in this matter,” then… well, I have to agree with S.P.’s sentiment here.
Opinion on the next page…
Earlier: You Realize Arming Teachers Is Going To Lead To Black Students Getting Murdered By Their Teacher, Right?
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.