Is South Carolina's “Disturbing Schools” Law Unconstitutional?

South Carolina makes it unlawful for anyone “to disturb in any way or in any place the students or teachers of any school” or “to act in an obnoxious manner” on school property. It is difficult to imagine any student who, at some point during elementary or secondary school, does not disturb another student or behave in a manner that someone might regard as obnoxious.

Does the law sweep too broadly? The American Civil Liberties Union contends that it does in a recently-filed lawsuit. According to the ACLU, the law violates due process because it is too vague to give students meaningful guidance as to behavior that is or is not illegal. The law may also violate the right to free speech if it criminalizes the expression of opinions simply because those opinions disturb teachers or other students.

A Lesson in Irony

South Carolina’s law gained national attention when it was invoked to arrest a high school student who refused a teacher’s order to put away her cellphone. The officer who made the arrest pulled the student from her desk, threw her to the floor, and handcuffed her. Ironically, other students used their cellphones to record the officer’s appalling conduct. The video went viral.

Also ironic is that the officer’s behavior disturbed the other students, but the officer was not charged with disturbing the school. One of those students, Niya Kenny, stood up to protest the officer’s obnoxious behavior. She was arrested for “disturbing the class” because she used course language while speaking her mind about injustice. The officer lost his job but, unlike Kenny, he has not been charged with a crime.

The ACLU Lawsuit

Kenny is one of more than 1,200 South Carolina students who are arrested every year for engaging in “disturbing” behavior. Some of those students are as young as seven. The arrested students are disproportionately black. In fact, arrest records in Charleston indicate that black students are six times more likely than white students to be referred to the juvenile justice system for “disturbing schools.” Critics argue that the law feeds a “school to prison” pipeline by exposing kids to a criminal record for engaging in conduct that teachers happen to dislike.

Kenny is also one of the plaintiffs in the ACLU’s lawsuit. The ACLU contends that the century-old law was never intended to apply to students attending their own schools, but was meant to protect students from outsiders. In recent years, however, students have routinely been arrested for engaging in the kind of mischievous behavior that schools have historically addressed without involving the criminal justice system. Pushing and shoving, cursing, pranking, and disobeying a teacher’s direction — the kind of infractions that once resulted in detention or a brief suspension — now provoke an arrest.

The ACLU complaint cites a number of examples of behaviors that have led to an arrest for “disturbing schools.” They include taking selfies in a girl’s restroom, arguing with a police officer who asked a student to produce identification, protesting a teacher’s disciplinary action that a student perceived as unwarranted, talking to another student after being told to stay outside the classroom and remain silent, verbally confronting a student who had been teasing the arrested student, and becoming involved in a physical altercation that the student did not initiate.

According to the ACLU, the law’s use of vague terms like “disturbance” and “obnoxious” make it impossible for students to understand what kind of misbehavior will be treated as a crime. Since different school districts have different understandings of the law, misconduct that might result in a verbal warning in one district could lead to an arrest in another. In addition, the law vests so much discretion in school administrators that it provides no protection against arbitrary or discriminatory enforcement. For example, a principal might ask the police to arrest a black student for engaging in conduct that would lead to detention for a white student.

Policy Considerations

Most states have a law that prohibits “disturbing the peace” or “disorderly conduct.” Those laws have typically survived constitutional challenges against vagueness when they are applied to conduct (such as screaming in a library) that all reasonable people should understand to be “disturbing” or “disorderly.” In some cases, courts have adopted objective standards to define the law’s subjective terms. In rare cases, prosecutions have been dismissed because the law failed to provide a defendant notice that his or her conduct would be illegal. Even when individual prosecutions are dismissed, the laws themselves are not regarded as unconstitutionally vague in every case.

The South Carolina law, focusing solely on schools, may be different. Eighteen states have laws against “disturbing schools,” but they typically apply to outsiders who enter the school or they define specific acts of misconduct. The ACLU will need to persuade the courts that precedents allowing broad “disturbing the peace” laws should not apply to a law that prohibits disturbing a school. That may be an uphill battle, but the ACLU believes that its position is supported by strong public policy.

The criminal justice system should ordinarily be a last resort for unruly students. According to the ACLU, researchers have established that properly trained teachers “can employ a range of effective approaches to prevent disruption, and to de-escalate disruption and conflicts when they do occur.”  At the same time, research demonstrates that criminal punishment turns education into a negative experience for all students (not just those who are punished) and diminishes the likelihood that arrested students will graduate.

Research also debunks the notion that black students are more likely than white students to engage in unruly behavior. The racial disparity in arrests and prosecutions under South Carolina’s “disturbing schools” law is therefore difficult to explain in nondiscriminatory terms.

Whether those arguments will persuade a court that South Carolina’s law is too vague to pass constitutional muster remains to be seen. The lawsuit, however, shines a spotlight on a glaring problem. Legislatures are usually better suited than courts to deal with questions of policy. South Carolina’s lawmakers could address the problem by narrowing the law or by taking steps to encourage teachers to deal with nonviolent disturbances administratively rather than asking the police to make arrests. Legislative advisory groups are considering proposals that would do so. Any recommendations they make might reach the state’s legislature next year.