Education Week | By Evie Blad | October 11, 2021
A federal judge sided with South Carolina students who argued that broadly written state laws against “disorderly conduct” and “disturbing schools” allowed police to arrest and cite students for routine misbehaviors.
The subjective and inconsistent application of those two laws led to higher rates of discipline for Black students for issues like “loud and boisterous behavior,” which school rules typically classify as low-level offenses, District Judge Margaret B. Seymour ruled Friday.
Her order touched on themes underpinning ongoing national debates about disproportionately high discipline rates for students of color and students with disabilities, school policing, and writing state laws and school policies that ensure equity.
Around the country, student activists have pushed schools to narrow prohibitions against things like “defiance” to ensure that they are consistently and fairly applied. And other states have considered how laws that prohibit things like disruptive behavior in general public places may be misused in school hallways.
To be fair, policies must be clearly and transparently interpreted by school employees, law enforcement, and students, racial justice advocates have said.
“These laws allow police officers to turn even the most minor infraction into a criminal offense,” said Peggy Nicholson, the supervising attorney at Duke University’s Children’s Law Clinic, who has opposed the use of North Carolina’s disorderly conduct law in schools.
“Getting some traction in the courts on limiting the use of [broad state laws] is really encouraging,” she said. “Ideally the legislatures are already paying attention and starting to take action before the courts get involved.”
Judge Seymour ordered South Carolina not to enforce the disorderly conduct law against students in K-12 schools. And she ordered the state not to retain records of students who’d been cited for “disturbing schools.” Since the origin of the case, South Carolina lawmakers amended that law so that it didn’t apply to current students. But those who’d previously been arrested or cited for disturbing schools offenses argued the situations had affected their educational and life trajectories.
Judge Seymour made her ruling after a law enforcement officer testified that two school resource officers could come to differing conclusions about what student behavior constituted an arrestable disorderly conduct offense.
“That schools throughout the state categorize as minor the same behavior that an officer could charge as criminal highlights the lack of notice the law provides as to what conduct is prohibited,” she wrote. “The overlap also underscores the potential for arbitrary enforcement when the decision of whether to charge a student is left to the discretion of an individual officer.”
‘I was the only one who was vocal, protesting the situation’
The case was first brought by Niya Kenny, a South Carolina student who was arrested under the state’s broad “disturbing schools” law in 2015 after she recorded her classmate’s violent arrest during math class at Spring Valley High School in Richland County, S.C.
A school-based sheriff’s deputy dragged her classmate from her desk after he was called to the classroom when she refused to surrender her cell phone to a teacher, and Kenny loudly told him to stop. Students’ cell phone video of the incident spread quickly online, kicking off a conversation about overly punitive school discipline.
“I was the only one who was really vocal about the situation, the only one,” Kenny told Education Week in a 2017 interview. “Two other grown men were in the class, and I was the only one who was vocal, protesting the situation.”
Kenny was dismissed as a plaintiff after the court determined that the change in state law had satisfied her demands. But other students who’d been arrested for disorderly conduct continued the case. They include an African American high school student who was cited after classmates claimed on social media that he had threatened to “shoot up the school,” which he denied. A Black female plaintiff with developmental disabilities was charged with disturbing schools after a classmate hit her in her school’s hallway. A white female student with a mood disorder was arrested after she verbally confronted classmates who had been bullying her and mocking her weight.
The state argued that “invalidating the disorderly conduct statute would remove a tool of law enforcement in dealing with disruptive and fighting students who are yelling at staff and visitors, hitting other students, running away from staff, kicking over furniture, hitting doors, shoving staff and law enforcement.”
But the current law is written and applied in a broad and unpredictable enough fashion that it could be considered a violation of students’ due process rights, Judge Seymour wrote.
“The conduct [the state] references is serious in nature, as is the state’s responsibility to protect the children and adults who populate its schools,” the ruling said. “However, the state has a constitutional responsibility to draft a law that addresses with specificity the concerns [it] raises.”
In the 2014–2015 school year in Charleston, Black students were approximately six-and-a-half times more likely to face a criminal referral for disturbing schools than their white classmates, the court wrote.
Between Aug. 3, 2015 and July 30, 2020, the law enforcement received 5,120 youth referrals for disorderly conduct statewide, 73 percent of them for incidents at school, the court found. Black children and teens made up about 75 percent of those referrals, despite comprising only about 30 percent of the population ages 5-17.
The American Civil Liberties Union, which helped represent students in the case, celebrated the court’s ruling as a victory for fairer school discipline.
“The court has sent a clear message: Rather than funnel children into the school-to-prison pipeline over minor rule breaking and protected First Amendment activities, schools must recognize and protect students’ rights,” says a statement from Sarah Hinger, senior staff attorney with the ACLU Racial Justice Program.
There are dozens of similar laws in other states
Activists around the country have targeted persistent trends of racial inequity and the sense that routine discipline is too often handled by law enforcement. While adding funding for school police is often raised as a response to shootings and other safety concerns, the presence of officers in schools can lead to overly punitive responses to nonviolent student behavior, they argue.
At the same time, some conservative lawmakers and school leaders have argued that efforts to rein in school discipline policies have left them with fewer tools to address student misbehavior.
The Biden administration has committed to exploring fairness in school discipline, and it is collecting comments on the issue.
South Carolina’s “disturbing schools” law was one of the most widely used in the country before it was amended in 2018, but there are dozens of laws in other states that can be broadly applied as catch-all punishments for student misbehavior in schools. In some places, students are also arrested under general laws against disturbing the peace.
In 2019, for example, an 11-year-old Florida boy was arrested under the state’s school disturbance law after he refused to stand for the Pledge of Allegiance and talked back to a substitute teacher who directed him to recite it.
In 2013, Texas legislators amended state law to prohibit school-based student citations for things like chewing gum and talking back to teachers.
Nicholson, at Duke, said juvenile-justice advocates in other states have searched for ways to challenge state laws in court, and they’ve encouraged lawmakers to more narrowly target the reasons students can be arrested at school.
In North Carolina, that means meeting with defense attorneys to encourage them to raise concerns about constitutionality and whether laws are consistently applied in the earliest court hearings over student offenses.
The South Carolina ruling is “a great model for other states like us who are continuing to see students arrested at school for relatively minor incidents,” Nicholson said.