Noelia Rivera-Calderón, J.D., is a former middle school teacher, a past Program Director of the School Discipline Advocacy Service, and an education policy advocate in Washington, D.C.
A generation ago, adults remember detentions and suspensions as the most common, and among the most severe, punishments for school-based misbehavior.1 Today almost half of children in the United States attend schools with sworn law enforcement officers who may, and do, arrest children for the same offenses that in the past would have merited these detentions.2
Close to two million children in the United States attend a school with a law enforcement officer but no guidance counselor.3 Over ten thousand children across the country are arrested each year for some form of “disturbing school,”4 codified by at least twenty-two states as school-specific disturbance laws,5 and encompassed by many other states’ disorderly conduct and disturbing the peace statutes.6 These laws may subject children as young as seven years old to fines or incarceration—or incarceration for failing to pay the fine.7
This Comment recommends that legislatures repeal school disturbance laws and that courts find these laws unconstitutional. To support this conclusion, this Comment proceeds in the following manner. Section II discusses the development of law concerning children’s rights in schools, from laws encompassing school-based forms of protest to the more recent development of zero tolerance school discipline and the different charges that may result from student misbehavior in school. As school disturbance laws have put thousands of students in the hands of the juvenile justice system, involvement that carries lifelong consequences,8 some advocates have sought to push back on the severity of the laws, challenging them through the legislatures and the courts. Parts II.C. and II.D. discuss these challenges and their successes and failures.
Section III discusses the many harms that come from reliance on school-based law enforcement officers to police routine student misbehavior. Not only do school disturbance laws increase juvenile justice involvement, they are widely recognized as having a discriminatory impact against students of color, lesbian, gay, bisexual, transgender, and queer (LGBTQ) students, and students with disabilities.9 Aside from the harms, school disturbance laws are, by pure common sense and on their face, simply unconstitutional. Part III.B. discusses how school disturbance laws should be found both void for vagueness and unconstitutionally overbroad. Finally, Part III.C. shows that school disturbance laws are unnecessary state intrusion—they take responsibility away from the parties that should be responsible for handling routine student misbehavior: school administrators, teachers, and parents. Further, if an arrest in school is warranted, it may be brought under an existing charge that already has a depth of case law limiting its reach, such as disorderly conduct.10
This Section provides an overview of children’s rights in school settings. It further explores the effect of “zero tolerance” on school enforcement of student discipline, leading to the frequent use of sworn law enforcement officers to police student behavior. It describes different statutory bases for student arrests, including disorderly conduct, disturbing the peace, and so-called “school disturbance laws” prohibiting minor student misbehavior that are the main focus of this Comment. Finally, it explores recent legislative and judicial responses to school disturbance laws.
- A. A History of Children’s Rights in Schools
Since the introduction of compulsory schooling laws, the rights of children, parents, and the State in schools have been in tension.11 The pattern of tension began when early Supreme Court decisions concerning children in schools and establishing a “children’s rights” body of case law did not focus on children’s rights at all, but rather the rights of parents to direct their children’s education.12 The rights of parents were weighed against the right of the State to regulate and control children in matters of education in cases like Wisconsin v. Yoder, 13 which weighed the State’s interest in compulsory education against the right of Amish parents to keep their children out of school after eighth grade.14 While in cases like Yoder, the rights of parents came out stronger, State interests were advanced in cases like Ingraham v. Wright,15 which held that schools could impose corporal punishment on children without notice to parents and without obtaining parental consent.16 This Part reviews the modern cases that lay the foundation for the present “children’s rights” body of law.
- The Tinker line of cases and “material and substantial disruption”
Struggles over regulating student behavior in school began to emerge in the context of student expression, whether students expressed themselves through protesting or other forms of speech.17 Tinker v. Des Moines Independent Community School District,18 a foundational school discipline case, involved a supposed disruption caused in school when several students wore black armbands to school in protest of the War in Vietnam.19 The students wearing the armbands were suspended from school until they came back without the armbands.20 The Court found little evidence of actual disruption resulting from the armbands, and came out on the side of students, holding that their right to First Amendment freedom of expression was not outweighed by the school’s wish to avoid controversy.21 The Tinker Court famously stated that students do not “shed their constitutional rights to freedom of speech or of expression at the schoolhouse gate,”22 that “[s]chool officials do not possess absolute authority over their students,” and that “[s]tudents in school as well as out of school are ‘persons’ under our Constitution… possessed of fundamental rights which the State must respect.”23
Tinker also, importantly, set a standard for restricting student rights in school.24 Even while seemingly championing the rights of students, the Court acknowledged the “comprehensive authority of the State and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in schools.”25 While Tinker dealt with freedom of speech under the First Amendment, its standard has applied in school discipline cases broadly.26 The standard set was that prohibition of student conduct requires “facts which might reasonably [lead] school officials to forecast substantial disruption of, and material interference with, school activities.”27 The Court later paraphrased this standard as prohibiting conduct “materially and substantially interfering with the requirements of appropriate discipline in the operation of the school.”28
Dissenting opinions in Tinker pointed to the school’s need for control, and students’ immaturity.29 Justice Black was not “fully persuaded that school pupils are wise enough, even with this Court’s expert help from Washington, to run the 23,390 public school systems in our 50 states,”30 and warned that the Tinker decision would make students “ready, able, and willing to defy their teachers on practically all orders.”31 He emphasized the purpose of schools was to make us a “more law-abiding people,” cautioned that “[w]e cannot close our eyes to the fact that some of the country’s greatest problems are crimes committed by the youth, too many of school age, and stated that “[s]chool discipline…is an integral and important part of training our students to be good citizens.”32 Justice Harlan, also dissenting, stated that “school officials should be accorded the widest authority in maintaining discipline and good order in their institutions.”33 These dissenting opinions set the stage for post-Tinker school discipline decisions.
Despite a seemingly high bar for prohibiting student conduct set by Tinker, post-Tinker decisions proceeded to give schools more authority and discretion in imposing discipline.34 Bethel School District v. Fraser,35 which emphasized a school’s “need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process,”36 permitted schools to prohibit speech that is vulgar, lewd, indecent, or plainly offensive.37 Perhaps because of the rise of “zero tolerance” school discipline imposing more severe consequences for routine misbehavior,38 cases then began to deal with the rights of students in schools who come into contact with law enforcement, and the role of law enforcement in imposing school discipline.39
- School searches and seizures in New Jersey v. T.L.O.
New Jersey v. T.L.O.,40 a case involving a child who was searched in school on suspicion of possessing drugs and then arrested,41 brought judicial attention to the intersection of educational institutions and the juvenile justice system. The essential questions concerned the proper standard for the legality of searches conducted by school officials, and whether school searches were subject to Fourth Amendment protections.42 Citing Tinker for the proposition that students “do not ‘shed their constitutional rights…at the schoolhouse gate,’”43 and clearly establishing that school authorities are State representatives, not merely parental surrogates,44 the Court held that the Fourth Amendment applies to school searches.45 The standard set was the “reasonableness, under all the circumstances, of the search,” requiring reasonable grounds for suspecting that the search “will turn up evidence that the student has violated or is violating either the law or the rules of the school.”46 The scope of the search must be reasonable when reasonably related to the objective of the search and not “excessively intrusive in light of the age and sex of the student and the nature of the infraction.”47
The post-T.L.O. case of Vernonia School District 47J v. Acton, 48 which involved drug testing for student athletes, again focused on the balance of intrusion on Fourth Amendment rights with legitimate government interests in keeping drugs out of schools. Citing Justice Powell’s concurrence in T.L.O., the Court limited student rights in school by finding that students have a “lesser expectation of privacy than members of the population generally.”49 Vernonia demonstrates the common tension in children’s rights law between granting children the same substantive and procedural due process rights as adults (as in Tinker), and, on the other hand, finding that children are different from adults and thus have “special needs” entitled to different protections, often corresponding with lesser rights.50 The “legitimate governmental interests” in maintaining school order in various ways (in Vernonia, for example, by keeping drugs out of schools)51 have gained traction and major influence in setting school discipline law and policy.52
- The rise of “zero tolerance” school discipline
The policy of “zero tolerance,” which prescribed harsh punishments for a large range of school misbehavior, began with the Gun-Free Schools Act of 1994, which required states receiving funding under the law to expel students who bring weapons to school.53 “Zero tolerance” laws and practices were meant to act as a deterrent to any and all unwanted student conduct, ranging from serious bullying to everyday classroom disruptions such as interrupting teachers.54 At the same time in the 1990s, the juvenile justice system was responding to the fear of so-called “super-predators”—children thought to number in the tens of thousands whose natural response to being severely “morally impoverished” was to “murder, rape, assault, burglarize, deal deadly drugs, and get high.”55 The policy of zero tolerance in the juvenile justice system was mirrored in school policies that prescribed harsh exclusionary punishment for minor offenses.56
While these practices mostly focused on suspensions and expulsions, increasingly School Resource Officers (SROs) were called in to enforce and manage student behavior.57 School law enforcement officers have existed in schools since the 1950s, but the practice of policing student behavior with law enforcement officers dramatically increased in the 1990s and has continued to increase since then.58 SROs have been described by a Congressional Research Service report as “a hybrid educational, correctional, and law enforcement officer,” charged with enforcing school safety and discipline.59 These SROs (also sometimes called school safety officers, school police, and school liaison officers) are local law enforcement agency officers or school district police officers with “sworn authority to schools,” who carry arms and have arrest powers.60 This definition does not generally include school security officers hired directly by school districts, who are typically not armed and do not have arrest powers.61 In the 2013-14 school year, forty-three percent of all United States public schools had SROs,62 who may legally arrest children in schools for any behavioral disruptions with “probable cause” if school disturbance statutes are violated.63
- Statutes Criminalizing Student Behavior in School
At least thirty-one states have either statewide code provisions or municipal ordinances criminalizing conduct that takes place in or around schools.64 These statutes take varied forms: some are general disorderly conduct statutes that also apply to children in schools,65 some prohibit disturbing the peace and are also applied to schoolchildren,66 and others are school-specific.67 All may be bases for subjecting students to arrest or to a non-arrest based law enforcement referral that may result in juvenile justice system involvement (and the consequences that come with that involvement).68 Parts B.1-B.3 will review these statutes and their effects.
- Disorderly Conduct
Violating a “disorderly conduct” statute is one of the most common bases for school arrests.69 For example, in Delaware’s 2011-12 school year, disorderly conduct not related to offensive touching or fighting/assault was the second most common charge resulting from a student arrest.70 As the fourth most common juvenile charge in Massachusetts, disorderly conduct in schools has been described as “disrespect toward [SROs]…rowdiness and loud public behavior… [or] disturbing a school in session.”71 The Florida Department of Juvenile Justice found that disorderly conduct was one of the most common school-based referrals to juvenile court.72 One Mississippi high school had a 400% increase in arrests over three years, the majority were for disorderly conduct.73 Michael Nash, former president of the National Council of Juvenile and Family Court Judges and former presiding judge of juvenile court in Los Angeles, stated that while the intended purpose of SROs is to provide safety, they “often end up handling discipline and handing out charges of disorderly conduct or assault.”74
Disorderly conduct is a discretionary arrest, subject to opinion on what behavior counts as “disorderly” and deserving of arrest.75 The charge is, by nature, vague and subjective, resulting in potential for abuse.76 Studies have found that while white youth in schools are more likely to be charged with objective, clearly-defined offenses (such as vandalism or weapons offenses), black youth are much more likely to be charged with subjective offenses like disorderly conduct.77 In Delaware’s 2011-12 school year, seventy-seven percent of students charged with disorderly conduct were black.78 In a study of Pittsburgh, Pennsylvania, school arrests over four years, disorderly conduct was “the most common offense for black 10-year-olds in cases with a single charge.”79 The nature of the conduct that warranted the charges in Pittsburgh has been described, in some examples, as “disrupt[ing] a class by cussing,” “use of profanity,” and, in one case, simply, “[a]ctor is disruptive at school.”80
- Disturbing the Peace and Disturbing Assemblies
Disturbing the peace is not as broad as disorderly conduct, though disorderly conduct can include a breach of the peace.81 States and municipalities sometimes have broad disturbing the peace statutes that have been applied to school-based conduct,82 or disturbing the peace statutes that specifically encompass school conduct.83 Disturbing assemblies is a related charge that also encompasses school-based conduct, either as applied or with school-specific statutory language.84 While disturbing the peace can mean fighting, it can also be committed with “abusive, profane, indecent, or otherwise provocative language.”85 Conduct encompassed by disturbing the peace in school ranges from hallway fights to cursing at teachers and other disruptive or loud behavior.86 Cursing in school is only supposed to give rise to a disturbing the peace violation if the target is likely to be provoked to respond with violence to the words.87 However, although disturbing the peace is not seen as being as broad as disorderly conduct it is still seen as a catchall charge, making its use subject to discretion in the same way as disorderly conduct.88
As with disorderly conduct, disturbing the peace (which does not have a clear definition) is frequently used across the nation as a basis for school-based arrests.89 In Jefferson Parish, Louisiana from 2012-14, disturbing the peace was the third most frequently used school-based charge.90 In Stockton, North Carolina from 2013-17, almost half of school-based arrests were for disturbing the peace.91 In San Bernardino, California from 2005-15, over a third of more than 30,000 school-based arrests were brought under this charge.92
- School Disturbance
At least twenty-two states and dozens of local municipalities outlaw some form of disturbing school.93 These statutes and ordinances, which can be termed “school disturbance laws,” vary in the language they use: some specifically use the term “disturbing school;”94 some prefer the word “disruption” and use the words “disrupting the operation of a school.”95 Some rely on the word “interfere” and make it unlawful to knowingly “disrupt or interfere with…[an] educational institution.”96 Others, more specifically, outlaw “willfully or maliciously mak[ing]…any noise, disturbance, or improper diversion” which disturbs the peace of a school,”97 “act[ing] in an obnoxious manner” in a school,98 “annoy[ing]” the conduct of classes, “willfully interrupt[ing]” a school, or being “rude, boisterous or disorderly” on school grounds.99 Only a couple of school disturbance laws make any distinction between such unlawful conduct committed by non-pupils (such as trespassers) versus pupils.100
In the majority of states that do not make a distinction between pupils and non-pupils, enforcement of the statutes against students varies.101 In some states, like Washington and Delaware, school disturbance laws are rarely enforced.102 However, in states like South Carolina, these statutes have widely been used to bring charges against students for school-based conduct.103 There, disturbing school has been the second most common juvenile charge after misdemeanor assault, with an average of seven kids charged with disturbing school every day schools were in session in 2015.104 While collection of data varies across the nation, more than 1,000 students a year are charged with disturbing schools in Maryland, Florida, and Kentucky; this number is around 2,000 in North Carolina; in Arizona, which does not officially track the number of charges per year, estimates place school disturbance charges at up to 5,000.105 One nationwide estimate suggests that juveniles are charged with disturbing school more than 10,000 times a year.106
- Judicial interpretation of school disturbance laws
Because not all states with school disturbance laws have a thorough and developing body of case law interpreting their statutes, examples of such interpretation can be found in the courts of only a few states. The courts of Georgia, Alabama, and Maryland, for example, have begun to interpret their statutes to determine what conduct rises to the level of an illegal school disturbance.107 The Georgia Court of Appeals found that there was sufficient evidence to support a conviction for disturbing school when a student started a fistfight outside the school building before school started, drawing a crowd of spectators.108 The court gave special attention to the fact that the incident attracted spectators, seeming to find that the distraction to students caused the disturbance.109 In Alabama, when a student threatened to burn a field and the principal spoke to him about his behavior, the school argued that the school disruption law had been violated because having to speak to him was a disruption preventing the principal from attending to his other duties.110 The court found this argument “illogical and incompatible with common sense,” because it would make any school incident a principal must address criminal.111
The courts of Maryland have addressed the state’s school disturbance law in several opinions, beginning with 1998 case In re Nahif A.112 The student in that case was involved in a “heated altercation” with school officials, refusing to follow directions, cursing, and shouting in a hallway where classes were in session nearby.113 The charge for disturbing schools was for this behavior only, as separate charges were filed for the underlying offenses that led to the altercation.114 Nahif A. argued that Maryland’s school disturbance law,115 as originally crafted, intended to criminalize riots during the Vietnam War era, specifically sit-ins, protest marches and other forms of civil disobedience that would interrupt school activities.116 Additionally, since Nahif A. attended a school specifically intended to support students with behavioral issues, he argued that the law was not intended to apply to him.117 The court held that the language of the statute was “plain and unambiguous,” and that nothing in the language would exclude application to students with behavioral issues.118 His delinquency adjudication was therefore upheld.119
After Nahif A.’s shouting, cursing, and refusal to follow directions were found to fall within the scope of Maryland’s school disturbance law,120 Maryland’s highest court attempted to limit the scope of conduct that counts as “disturbing school” in the 2003 case of In re Jason W.121 In this case, middle school student Jason W. had written “There is a bomb” in pencil on a wall in a school stairwell, erasing the word “bomb” when a teacher approached.122 Jason W. was taken to the principal’s office, where the police were called.123 The police officer questioned Jason W., who said he did not know what he was doing, following which the officer charged him under the school disturbance law.124 The court noted that the school did not take the writing seriously as a bomb threat, not having cleared the school or alerted any relevant agency, and that it caused no actual disruption of school activities.125 After reviewing the legislative history of the law, including concerns expressed when the original bill was pending in the legislature that the law “could be applied to a kindergarten pupil throwing a temper tantrum,”126 the court found that the state’s juvenile court prosecutors were advancing exactly that overbroad and absurd interpretation.127 It set guidelines for what type of conduct may not rise to the level of disturbance under the law: The words “disturb or otherwise willfully prevent,” as used in § 26-101(a), cannot be read too broadly or too literally. A child who speaks disrespectfully or out of turn, who refuses to sit down or pay attention when told to do so, who gets into an argument with another student, who throws a rolled-up napkin across the room, who comes to class late, or even one who violates the local dress code in some way, may well disturb the class and, if sent to the principal, may divert the teacher or the principal from other duties for a time, but surely that conduct cannot be regarded as criminal because it is temporarily disruptive. We reject the State’s argument that there need not be any “actual disturbance.” The only sensible reading of the statute is that there must not only be an “actual disturbance,” but that the disturbance must be more than a minimal, routine one. It must be one that significantly interferes with the orderly activities, administration, or classes at the school.128
The Maryland courts then applied the Jason W. standard (that conduct be more than a routine disruption) to subsequent cases, beginning with In re Qoyasha D.129 Qoyasha D. was a middle schooler with an emotional disability inhibiting his anger control and self-management and whose education was governed by an Individualized Education Program (IEP) because of the disability.130 He left class without permission and ran down the hall, punching lockers and knocking over a sign before he returned to class, at which point he was no longer aggressive.131 When an instructional assistant told him to leave class, he refused, so a school police officer was called who also told him to leave, at which point he complied.132 At this point the officer said he was under arrest, and Qoyasha D. attempted to walk away.133 When the officer grabbed Qoyasha D.’s arm, Qoyasha D. clenched his fists, following which the officer said he must comply or be pepper-sprayed. Qoyasha D. did not comply, and was pepper-sprayed, handcuffed, and arrested.134 The court found that Qoyasha D.’s conduct was closer to Nahif A.’s than Jason W.’s, and upheld the conviction,135 also noting that the fact that Qoyasha D. had an IEP was not relevant to the delinquency.136
In other subsequent cases, the Maryland courts have made varied determinations on what counts as disturbing school, even in similar situations. With no clear distinction between them, one classroom fight was held to be a school disturbance,137 while a nother was not;138 yelling, screaming, and cursing after refusing to take off a hoodie was also not a disturbance.139 The loose standard that the Court of Appeals reached in Jason W., that the conduct must be more than a routine disturbance,140 is the closest thing to a “test” of whether conduct meets the statute, and that test has been applied to similar situations with varied results.141
- Legislative Responses to School Disturbance Statutes
As stories of children being charged with disrupting school have been increasingly reported,142 some legislators have felt pressure to respond.143 In Texas, State Senator John Whitmire led the push to change Texas’s school disruption law, which defined school disruption as a Class C misdemeanor subjecting thousands of offenders to up to $500 in fines.144 Disruption of Class, in Texas, was one of the most common charges officers would use to “ticket” students, referring them immediately to juvenile court.145 State Senator Whitmire noted that the practice was “ridiculous on its face,” as it was used to ticket children, even under the age of ten, for behaviors such as “marking on a wall with a pencil” or “using a cuss word.”146 In one case that became highly publicized, a girl was ticketed for disruption when she sprayed herself with perfume after classmates said she smelled.147 State Senator Whitmire has noted that if the law had been enforced when he was a child, he himself may have been charged with disrupting school.148
Texas Senate Bill 393,149 which became effective September of 2013, prohibited school police officers from issuing citations for misbehavior at school.150 The bill also removed Disruption of Class from the education code.151 Officers can instead issue “complaints,” but a prosecutor must decide whether to charge the student with a crime.152 Additionally, the complaint must be accompanied by an affidavit from an eyewitness.153 In the year following the change in the law, Class C misdemeanor ticketing dropped by seventy-one percent.154
South Carolina’s school disturbance law,155 which has been one of the most frequently used in the country,156 has also been the subject of some of the most widespread calls for legislative reform.157 The law as originally written in 1919 had been intended to be applied to trespassers in all-girls schools, but in recent years has been applied almost exclusively to students.158 In 2015, a video of an SRO forcibly removing a black girl from her desk and throwing her across the room went viral,159 drawing attention to the state’s school disturbance law.160 That girl, who has remained anonymous, and another student, Niya Kenny, who protested during the encounter, were charged with disturbing school.161 South Carolina State Senator Mia McLeod called the incident “shocking and unconscionable,” and sponsored a bill that would eliminate school arrests for disturbing school.162 This bill, S. 131, passed on May 14, 2018, and was signed into law on May 17, 2018.163 While S. 131 does not ban the use of school arrests for “disturbance,” it urges schools to exhaust all other discipline before involving law enforcement, and also increases the punishment for non-student violators only to up to a year in prison and a fine of up to two thousand dollars.164 Similar bills have died in committee in the past.165 The State Board of Education also tentatively approved a plan that would limit SRO involvement to serious incidents, which also must be approved by the legislature.166
- Court challenges to school disturbance statutes
In addition to legislative responses, there have been court challenges to the constitutionality of school disturbance laws, but they have been limited and generally unsuccessful.167 School disturbance laws have been challenged on the basis of unconstitutional vagueness and unconstitutional overbreadth.168
The vagueness doctrine is predicated on the Fourteenth Amendment of the United States Constitution, under which no person may be deprived of life, liberty, or property without due process of law.169 Due process requires fair notice, so that people can conform their conduct to the law.170 Therefore, a criminal statute must be sufficiently definite so that an ordinary person can understand what conduct is prohibited.171 A criminal statute will be found void-for-vagueness under the due process clause if it does not provide minimally adequate notice of what conduct is prohibited to individuals who might be prosecuted, or if it “grants too much discretion to law enforcement without standards to avoid arbitrary or discriminatory enforcement.”172 Either by itself is sufficient to find a statute void-for-vagueness.173 Further, a statute may be found void-for-vagueness either on its face or as applied.174
A civil statute will be found void-for-vagueness when “its language is such that men of common intelligence must necessarily guess at its meaning.”175 However, where a judicial construction of a state statute has removed the vagueness, the statute can be upheld.176 There is less room for ambiguity in criminal statutes because of the heightened consequences to their violation.177
The overbreadth doctrine specifically concerns the First Amendment and applies only within that context.178 A s tatute i s u nconstitutionally o verbroad if it does not aim specifically “at the evils within the allowable control of the government,” but also covers constitutionally protected activities.179 Even clear and precise legislation may be overbroad if it covers such conduct.180 The test of overbreadth is whether the statute’s language is so broad as to discourage conduct that is expressly protected by the Constitution.181 The focus must be on the “normal and reasonable” reading of the language.182
To challenge a statute on the basis of overbreadth, the challenging party must establish that (1) the protected activity is part of the law’s target, and that (2) there is “no satisfactory method of severing the law’s constitutional from its unconstitutional applications.”183 A substantial number of the law’s applications must be unconstitutional for a statute to be overbroad on its face, in relation to the statute’s legitimate purposes.184 If conduct is involved as well as speech, the overbreadth must be both real and substantial when judged against the law’s legitimate purposes.185 An overbreadth challenge can be defeated if the state court has given a narrowing construction to the statute.186
- Kenny v. Wilson as a challenge to unconstitutional vagueness
Following the headline-grabbing incident of an SRO throwing a student from her desk in a South Carolina school, the American Civil Liberties Union (ACLU) brought suit on behalf of the classmate who verbally protested the SRO’s behavior and was also arrested, Niya Kenny, and all similarly situated parties.187 Other named plaintiffs include a college student arrested for criticizing a police officer for the racial profiling of a fellow student, a student with disabilities arrested for refusing to leave the school library and cursing at a student making fun of her, and a student arrested for disturbing schools after a minor physical altercation and who was later threatened with detention for failure to pay the fine.188 The defendants are the South Carolina Attorney General, Alan Wilson, and the local police departments that provide SROs to schools.189 The ACLU noted that in South Carolina, black students are nearly four times as likely as white students to be charged with disturbing school.190
In the complaint filed by the ACLU, the plaintiffs argue that South Carolina’s school disturbance law covers “a broad swath of adolescent behavior,” violating fundamental fairness and “the most basic tenets of due process” by creating an impossible standard for children to understand and follow.191 Additionally, the plaintiffs argue that the law prevents students from speaking out against abuses.192 The plaintiffs note that the law, enacted nearly 100 years ago, was never intended to apply to students rightfully in their own school, and has only served to draw thousands of youth into the juvenile justice system.193
The complaint targets not only the school disturbance law, but South Carolina’s disorderly conduct statute, saying that both are unconstitutionally vague and fail to provide notice to students of what adolescent conduct would fall under the law.194 Because the conduct covered by both statutes is indistinguishable from conduct schools address without resort to arrest (such as cursing, refusal to follow directions, or physical altercations without significant injury), the statutes are impermissibly vague.195 Not only are the statutes vague, the plaintiffs argue, they are also unnecessary since schools have access to a range of effective approaches to prevent disruption and address misbehavior.196 The plaintiffs seek declaratory relief that the statute violates their constitutional right to due process when applied to schoolchildren, and seek an injunction enjoining the law from being applied to students.197
The specific words alleged to be vague in the school disturbance statute are “interfere,” “disturb,” “loiter,” and “act in an obnoxious manner.”198 The complaint also cites South Carolina Attorney General’s Opinions addressing the reach of the statute, which allow the Disturbing Schools charge to apply to the use of offensive language toward teachers, principals, and police officers, and to failure to leave school when asked.199 The plaintiffs argue that behavior should be managed by school administrators rather than police officers, and that the racial disparities in the law’s application not only cannot be explained by racial differences in behavior, but that the greatest disparities come up when laws use subjective words like “disrupt.”200 The plaintiffs’ memorandum accompanying the motion for preliminary injunction argues that the school disturbance law is void for vagueness on its face and fails to provide adequate notice to students of the nature of prohibited conduct.201
The United States Department of Justice (DOJ) also filed a Statement of Interest in Kenny v. Wilson, urging that if the plaintiffs’ allegations are taken as true, they have stated a proper claim under the due process clause of the Fourteenth Amendment.202 Citing J.D.B. v. North Carolina,203 holding that a child’s age informs an analysis of police custody,204 the DOJ notes that student behavior is influenced by their diminished maturity, and that children can demonstrate negative behaviors and still become productive members of society.205 Additionally, in the experience of the DOJ enforcing civil rights, significant racial disparities can indicate the unconstitutional vagueness of a statute.206
The defendants prevailed in the U.S. District Court for the District of South Carolina (Charleston) on a motion to dismiss for failure to state a claim, on the grounds that plaintiffs lacked standing.207 On appeal to the Fourth Circuit, the district court was reversed.208 The Fourth Circuit left room for a challenge to the Disturbing Schools law based on vagueness, noting that Tinker and prior state cases addressed only overbreadth.209 Further, the court found that the plaintiffs faced credible threats of prosecution from discriminatory enforcement based on race and disability, and on the plausibly vague nature of the law itself.210 The case is currently pending.211
- In re Amir X.S. as a challenge to unconstitutional overbreadth
In re Amir X.S.212 was a pre-Kenny South Carolina case challenging the overbreadth of South Carolina’s school disturbance law. The case began in family court, which held the statute constitutional and adjudicated Amir X.S. delinquent.213 When Amir X.S. moved to quash the juvenile petition on the grounds that the statute was unconstitutionally vague and overbroad, the State argued that he lacked standing to challenge the statute since his conduct “fell plainly within its terms.”214 Because the traditional rule of standing is “relaxed” for claims involving overbreadth, the appellant needed only to show that the statute could cause someone—anyone—to “refrain from constitutionally protected expression.”215 The alleged overbreadth must not only be real, but also substantial.216 While the South Carolina Supreme Court recognized that expressive conduct may be covered by the First Amendment,217 it held that the conduct prohibited by the school disturbance law does not cover that type of protected expressive conduct.218 Specifically citing Tinker, the court noted that symbolic expressive conduct can clearly not be subjected to school disciplinary consequences.219
Because the court found that Tinker d id n ot a pply t o t he t ype o f c onduct prohibited by the school disturbance law, it looked instead to Grayned, the Supreme Court case which dealt with student picketing prohibited by an anti-noise statute.220 The important piece of Grayned, for the court, was the substantial disruption of school activities rather than the conduct itself.221 Not only is the conduct prohibited by the school disturbance law substantially disruptive, it is not protected by the First Amendment, the Amir X.S. court held, and therefore cannot be challenged on the grounds of overbreadth.222 Amir X.S.’s conduct had been to refuse to leave a classroom, to curse at the teacher and students, and to attempt to hit his teacher as he was escorted from the room.223 Additionally, the court found that the construction of the statute itself is limited by its applicability only to schools, and that since there is a limiting construction, the statute was not overbroad.224 Ultimately, while the statute may encompass protected speech, and “[a]ny fertile legal imagination can dream up conceivable ways in which enforcement of a statute violates First Amendment rights,” the court held that it does not do so “substantially.”225
- A.M. v. Holmes and the validity of arrests under school disturbance laws
A.M. v. Holmes involved a thirteen-year-old, F.M., who allegedly disrupted his physical education class and was arrested under New Mexico’s school disturbance law.226 F.M., a seventh grader, fake-burped in class, making other students laugh, and his teacher requested that he stop.227 F.M. ignored her requests and continued, and was then asked to sit in the hallway.228 He did so, but continued the fake-burping and laughing.229 F.M.’s teacher called an SRO, who asked F.M. to come to the school’s administrative office; F.M. cooperated.230 The SRO then told F.M. he would be arrested for interfering with the educational process, and drove him to the juvenile detention center.231 A.M., F.M.’s parent, sued, arguing that F.M. had been deprived of his civil rights through an unlawful arrest and the use of excessive force, among other Fourth Amendment claims.232 A.M. felt that the officer “should have known that burping was not a crime” and that because her son was compliant, the officer did not need to use force in arresting him.233 The district court granted qualified immunity to the officer and the school administrators, and dismissed the claims against the officer, which A.M. appealed to the Tenth Circuit Court of Appeals.234
The circuit court focused on whether the school disturbance law encompassed F.M.’s conduct.235 Because the statute manifested the legislature’s intent to prohibit a “wide swath of conduct” that interferes with the educational process, the court held that it did encompass F.M.’s conduct.236 F.M.’s conduct, the court reasoned, did not “merely…disturb the good order” of the classroom, it brought the activities of the class “to a grinding halt.”237 The use of handcuffs was also appropriate given reliance on clearly established law.238
Justice Neil Gorsuch, then a judge on the Tenth Circuit Court of Appeals, offered a sarcastic dissent, stating that maybe nowadays it is “too old school” for the teacher to have ordered extra laps or given detention to F.M., and that “[m]aybe today you call a police officer,” who decides that rather than escorting the compliant thirteen-year-old to the principal’s office, “an arrest would be a better idea.”239 Judge Gorsuch cited an earlier New Mexico case State v. Silva,240 which A.M. also relied on, holding that a more substantial interference is required under a similar school disturbance law (applying in that case to college sit-ins, but with identical language to the school disturbance law in the present case).241 Judge Gorsuch also cited In re Jason W. for the proposition that conduct that requires intervention by a school official does not rise to the level of a school disturbance under the law.242
Upon losing her case, A.M. petitioned for certiorari to the United States Supreme Court,243 which was denied in May of 2017.244
This Section argues that school disturbance laws are not only unnecessary for maintaining school discipline, but are unconstitutionally vague and overbroad. Because any juvenile justice system involvement is harmful, school disturbance laws are not worth the lifelong burden placed on the students charged under them. The use of school disturbance laws is marked by persistent and substantial racial bias, bias against LGBTQ students, damaging effects on students with disabilities, and general harms associated with juvenile justice system involvement. Because school disturbance laws violate the due process rights of students, are harmful, and are unnecessary, they should be repealed or held unconstitutional by the courts.
- School Disturbance Laws are Harmful and Discriminatory
- School disturbance laws increase harmful juvenile justice system involvement
When it becomes “too old school” for a teacher to give detention and the teacher or school administrator decides that “an arrest would be a better idea,”245 a child that would once have had their behavior addressed by the school becomes a subject of the juvenile justice system. The “school-to-prison pipeline” is sometimes discussed as the somewhat abstract idea that zero tolerance school discipline, like suspensions and expulsions, inevitably leads to juvenile justice involvement.246 However, the school-to-prison pipeline can be very literal, with more children than ever going straight from classrooms to prisons.247 Juvenile justice involvement comes with a lifetime of harmful consequences.248
Even one court visit on a juvenile justice charge can result in negative educational outcomes, increasing the risk that a child will drop out of school.249 Further, court appearance is most detrimental to those with the least previous involvement in delinquency.250 Some theorize that the arrest will have a deterrent effect. In fact, the opposite is true: juvenile justice involvement leads to more juvenile justice involvement.251 For both youth who experience incarceration and for juvenile justice involved youth who do not (instead getting probation, for example), system involvement follows them long-term.252
For youth that, as a result of a school disturbance delinquency adjudication, are incarcerated, adequate education is difficult to access.253 Problems in attaining an education while incarcerated include lack of appropriate work and educational resources,254 lack of qualified teachers,255 harmful disciplinary practices including the use of seclusion,256 and difficulty transitioning back to regular schools following incarceration, often because youth are not given adequate credit for education completed while in juvenile justice placements.257 If children are not only unable to access an adequate education while incarcerated, but then fall further behind when they leave incarceration, it becomes easy to see how juvenile justice involvement so dramatically affects the dropout rate.258
Even those youth who are not incarcerated as a result of violating a school disturbance law face negative outcomes as a result of court involvement.259 Although ninety-five percent of youth involved in the juvenile justice system, including (generally) those who are involved due to violating school disturbance laws, are in the system for non-violent offenses, the juvenile records that result from that involvement will follow them into adulthood.260 Having a juvenile record interferes with a young person’s ability to secure housing, get a job, join the military, go to college, or be the recipient of public benefits.261 While it is commonly believed that juvenile records are automatically sealed at age eighteen, in reality procedures for sealing and expungement of these records vary widely across states.262 These records result in “lifelong barriers to success.”263
- School disturbance laws have a disparate impact on students of color, LGBTQ students, and students with disabilities
Black students face disproportionately high rates of school arrest.264 Black students, at sixteen percent of total school enrollment, account for thirty-one percent of school-related arrests.265 Over seventy percent of students in school-related arrests or law enforcement referrals are black or Latino.266 In accordance with that heightened rate of arrest, school disturbance laws are more often used to charge students of color—in South Carolina, black students like Niya Kenny are nearly four times as likely to be charged under the state’s school disturbance law.267 Black students are also more likely to be in schools with SROs and school police officers in the first place: seventy-four percent of black high school students attend a school with at least one on-site law enforcement officer, compared with sixty-five percent of white high school students.268 In middle school, the disparity is even greater, with fifty-nine percent of black students attending a school with law enforcement officers compared to forty-seven percent of white students—and early system involvement also increases the likelihood of later involvement.269 Given that subjective offenses create greater opportunities for the influence of implicit bias, compared with clearly-defined objective offenses, this bias and use of discretion leads to more students of color being charged with the subjectively-defined “disturbing school.”270
LGBTQ youth also experience the effects of greater reliance on law enforcement to enforce school discipline.271 While LGB youth, for example, make up just five to seven percent of all youth, they represent up to twenty percent of youth in the juvenile justice system.272 LGB youth are between 1.25 and 3 times as likely to face criminal consequences, like school-based arrests, when their heterosexual counterparts do not for similar conduct.273 In general, LGB and gender-nonconforming youth are up to three times more likely to experience harsh disciplinary treatment, ranging from school-based sanctions to school arrests and juvenile justice involvement, 274 because of discretionary application of subjective rules—not because they engage in more delinquent behavior.275
Finally, it appears likely that juvenile justice system involvement, in effect, criminalizes disability. Students with disabilities represent a quarter of all students arrested or referred to law enforcement from schools, while they account for 12% of the entire student population.276 Nothing in the law prevents an SRO from arresting a student for conduct directly caused by their disability.277 In fact, the Individuals with Disabilities Education Act (IDEA) was amended by Congress expressly to state that nothing within the IDEA prevents reporting agencies (like schools) or law enforcement from applying laws equally to crimes committed by students with disabilities.278 This has resulted in the fact that a shocking 20% of students with emotional and behavioral disorders have been arrested in school— often for conduct directly caused by their disabilities.279 Because some emotional and behavioral disabilities are likely to cause disturbances in schools, especially in schools that are not appropriately responding to the students’ behavioral needs with their IEPs, school arrests and referrals to law enforcement are, in many cases, criminalizing disability.
- School Disturbance Laws are Unconstitutionally Vague and Overbroad
- School disturbance laws are unconstitutionally vague
School disturbance laws should be held unconstitutionally vague because they do not provide minimally adequate notice of what conduct is prohibited to students who might be prosecuted.280 Additionally, under the vagueness doctrine school disturbance laws “grant too much discretion to law enforcement without standards to avoid arbitrary or discriminatory enforcement.”281 Because the average, reasonable student is unable to distinguish between conduct that would be subject merely to school-based punishment and conduct that would be subject to arrest, school disturbance laws fail to pass the first test of vagueness.282 Because, on their face and as applied, they do not provide standards to avoid arbitrary or discriminatory enforcement, school disturbance laws also fail the second vagueness test.283
First vagueness test: minimally adequate notice to a person of average intelligence
Under the first test for vagueness, school disturbance laws would have to provide minimally adequate notice of what conduct is prohibited.284 One typical statute is South Carolina’s, which is frequently employed to bring charges for school-based conduct.285 It makes it unlawful to “willfully or unnecessarily… interfere with or disturb” students or teachers or to “act in an obnoxious manner” in a school.286 The question is what is meant by “interfere,” “disturb,” or “obnoxious manner,” and whether an ordinary person (in this case, a child) would reasonably know what conduct this encompasses.
A “person of average intelligence” should be a reasonable child
The notice required by due process must be of the type that ordinary people can understand.287 Further, the statute must give fair warning of the prohibited conduct when measured by “common understanding and practice.”288 School disturbance laws should thus be construed through the understanding of an ordinary child—not simply an ordinary person—and should be measured by common understanding and practice specifically in schools. Increasingly in criminal justice, a “reasonable child” standard is used and advocated for.289 In a typical school, a reasonable student would likely not know that they could be arrested for offenses such as criticizing a school police officer, cursing at a student, making fun of them for their behavioral disabilities, complaining about having to get a late slip loud enough that others in the hallway could hear, or speaking with another student after being sent out of class.290 If an average, reasonable child would not know whether “interfering with” or “disturbing” school would encompass interrupting a teacher, cursing at another student, or complaining about or criticizing adults, the statute is unconstitutionally vague.
Would Niya Kenny have known that she would be arrested, as she shouted for help while watching an officer throw a classmate from her desk?291 Would an autistic ten-year-old with a need for extensive behavior management services, who kicked and scratched an aide after the child said he did not want to be touched, know that his conduct would subject him to handcuffs and a juvenile record?292 Would an eighth grader participating in a “Skittle fight” on the bus (with several students throwing skittles at each other) know that, as he took a social studies test in class the next day, he would be arrested?293 Would a reasonably intelligent student who committed any of those behaviors at a school without SROs before transferring to a school with SROs where she then does the same thing know that the behavior would now subject her to arrest? The use of discretion inherent in school disturbance laws makes minimally adequate notice to a child of average intelligence nearly impossible.
Second vagueness test: Too much discretion to law enforcement without standards to avoid arbitrary or discriminatory enforcement
Many school codes of conduct punish disruptive offenses with consequences ranging from detention to suspension and expulsion.294 In today’s schools, SROs are law enforcement, and increasingly classroom management is delegated not to teachers but to these law enforcement officers.295 It is within an SRO’s discretion to charge a child with school disturbance.296 Given the highly discretionary nature of school disturbance laws,297 and widely varied use of school disturbance laws across states,298 there is no consistent basis for the application of these laws. Additionally, the implicit bias inherent in discretion leads to arbitrary and discriminatory enforcement.299
- School disturbance laws are unconstitutionally overbroad
School disturbance laws are so broad they do not aim specifically “at the evils within the allowable control of the government,” but can easily cover constitutionally protected activities.300 Challenges arguing that school disturbance statutes’ languages are so broad as to discourage conduct that is expressly protected by the Constitution,301 must focus on the “normal and reasonable” reading of their language.302 These statutes would fail if they have a substantial number of applications covering constitutionally protected conduct; additionally, there must be “no satisfactory method of severing the law’s constitutional from its unconstitutional applications.”303 The overbreadth must weigh against the law’s legitimate purposes,304 and constitutionality can be sustained if the state court has given a narrowing construction.305
In re Amir X.S. showed that the traditional rule of standing is “relaxed” for claims involving overbreadth, meaning the challenger need only show that the statute could cause any third party, not necessarily a plaintiff, to “refrain from constitutionally protected expression.”306 While Amir X.S.’s own conduct (not only refusing to leave the room, but cursing at and attempting to hit a teacher, continuing disruption as he was escorted from the room) may have fallen within the meaning of a school disturbance,307 it would be difficult to say that Niya Kenny’s speech (calling attention to the unfairness of the arrest she was witnessing)308 would not have been constitutionally protected expression within the meaning of Tinker.309 Under Tinker, any “material and substantial disruption” would already have been caused by the arrest itself and not by Niya Kenny’s words of protest.310 Yet she was arrested and charged with disturbing school due to her words, which not having caused a material and substantial disruption were constitutionally protected speech under Tinker.311
The danger that the vague charge of “disturbing schools” can be used to arrest students for practically any unwanted in-school behavior—including constitutionally protected speech—renders the statute unconstitutionally overbroad. The South Carolina Supreme Court has failed to provide an appropriate narrowing construction to the statute other than saying that the statute applied only to schools.312 To state that there exists an appropriate narrowing construction because the statute (giving no specificity as to conduct) is narrowed to a particular location (schools) is not to provide an appropriate narrowing construction at all. On its face, a statute that says only that “act[ing] obnoxious” or “disturb[ing] in any way or in any place the teachers or students of any school” will necessarily encompass constitutionally protected conduct and speech–including constitutionally protected unpopular speech, like Niya Kenny’s–to a substantial degree.313
- School Disturbance Laws are Unnecessary
- Disorderly conduct and disturbing the peace are similar charges with less risk of abuse
There is no need to rely on specific school disturbance laws, because disorderly conduct, disturbing the peace, and disturbing assemblies already exist as charges. While similar vagueness arguments can be (and are) made against disorderly conduct statutes,314 an existing body of case law has better defined when, for example, disorderly conduct statutes sink to the level of unconstitutional vagueness.315 A disorderly conduct or disturbing the peace statute, to be valid, must give a person of ordinary intelligence fair warning that their conduct will be prohibited.316 While school disturbance laws are, depending on the state, either criminal or civil offenses, disorderly conduct is a criminal offense and thus is held to a higher standard of certainty, meaning a vague disorderly conduct statute can be held invalid on its face even if it may have some valid application.317
The Supreme Court has ruled on the validity of disorderly conduct statutes as applied to the following types of (often) school-based conduct: verbal acts, noisemaking, and “an annoying manner of acting,” and state courts are bound by the standard of vagueness set by the Supreme Court.318A charge of disorderly conduct, therefore, will not survive a challenge in a situation where a student, for example, curses at a teacher, because the Supreme Court has held that only “fighting words” and other unprotected speech may be covered.319 Similarly, “annoying” conduct is lawfully prohibited only when the words or conduct would have a direct tendency to cause violence or incite to fight.320 Since, unfortunately, cursing in school is a common enough occurrence that the average teacher (and student) will not be induced to fight by it,321 a disorderly conduct charge would not be appropriate. Because the scope of disorderly conduct and disturbing the peace has been limited by case law, it has less potential for abuse than school disturbance laws.
- School disturbance laws are unnecessarily taking the place of classroom management
While this Comment takes the position that school disturbance laws are harmful, unconstitutional, and unnecessary, the importance of a safe classroom free from disturbances to the learning environment cannot be overstated. However, this fundamental responsibility belongs to schools, not to law enforcement, and when the lines become blurred and the responsibility becomes abdicated, schools become less places for education and more places for social control.
There are many proven ways to maintain school discipline without resorting to law enforcement. The United States Departments of Education and Justice, through the Supportive School Discipline Initiative and the School Discipline Consensus Project, sponsored a report by the Council of State Governments Justice Center called the School Discipline Consensus Report.322 This report provides comprehensive, research-based, and practical recommendations for establishing a positive school climate, encouraging schools and school districts to analyze their own discipline data to pinpoint issues and begin targeted school-based strategies for addressing them.323 This report can serve as a starting point for any school struggling to maintain appropriate discipline. Many effective, school-based disciplinary programs already exist, that are used by many schools and can be used by many more: Positive Behavioral Interventions and Supports (PBIS) (a multi-tiered system for setting behavioral expectations while providing appropriate supports);324 Assertive Discipline (a system of effective and positive classroom management strategies for teachers);325 Responsive Classroom (an approach to teaching focused on building an engaging, positive classroom community);326 and restorative approaches to discipline (focusing on responding to challenging behavior through engaging all parties involved in authentic dialogue leading to an effort to make things right);327 among many other effective approaches.
The roles of existing school security officers or SROs should also be redefined. Under no circumstances should police officers take on the role of teachers in managing routine classroom misbehavior.328 Arrests should be used only for the most serious conduct—“[a] scuffle between students in line for the bus does not need to be treated as an assault, and a student who heckles a speaker at a school event does not need to be charged with disorderly conduct.”329 SROs can also be trained to use discretion and to consider alternatives to arrest; good SROs already do this.330 If school administrators, teachers, students, and SROs are all clear on what their appropriate roles are, arrests under school disturbance laws can be eliminated, and school-based arrests in general can be kept to an appropriate minimum.
This Comment recommends that school disturbance laws be repealed by the legislatures and found unconstitutional by the courts. Because the rights of children in schools do not and should not “stop at the schoolhouse gate,”331 we must recognize that the Fourteenth Amendment protects children from the right to be deprived of their liberty without due process under vague, overbroad, harmful, discriminatory, and unnecessary school disturbance laws.332 Otherwise we consent to live in a nation where the rights of some of our most vulnerable residents, children, are not only limited but terminated at the schoolhouse gate.
1 E.g., Gary Fields and John R. Emshwiller, For More Teens, Arrests by Police Replace School Discipline, The Wall Street Journal ( Oct. 2 0, 2 014), h ttps://www.wsj.com/articles/ for-more-teens-arrests-by-police-replace-school-discipline-1413858602.
2 Institute of EducationSciences, Public School Safety and Discipline: 2013-14 18 (2015).
3 Evie Blad, Schools With Police But No Guidance Counselors: A Closer Look, Ed Week (Dec. 9, 2016), http://blogs.edweek.org/edweek/rulesforengagement/2016/12/black_hispanic_students_ more_likely_to_attend_schools_with_police_but_no_counselors.html.
4 See Amanda Ripley, How America Outlawed Adolescence, The Atlantic ( Nov. 2 016), h ttps:// www.theatlantic.com/magazine/archive/2016/11/how-america-outlawed-adolescence/501149/.
5 See, e.g., Fla. Stat. § 871.01 (2017).
6 See, e.g., Cal. Penal Code § 415 (2017).
7 See Ibid.; see, e.g., Robin Shulman, A South Carolina Student Was Arrested for ‘Disturbing a School’ When She Challenged Police Abuse, So We Sued, ACLU(Aug. 11, 2016), https://www.aclu.org/blog/ racial-justice/race-and-inequality-education/south-carolina-student-was-arrested-disturbing
8 See Juvenile Law Center, Failed Policies, Forfeited Futures 2 (2014).
9 See infra Parts III.A.1. and III.A.2.
10 See infra Part III.C.1.
11 Hillary Rodham, Children Under the Law, 43 Harv. Ed. Rev. 487 (1973) (“The delicate operation of inserting new elements into the control-of-children equation began during the compulsory schooling controversy. From the first confrontations between parents and the state, education has been the subject of continuous and often bitter struggles, primarily over the proper social role of education and the proper treatment of children within the schools.”)
12 Ibid. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (describing the right of a teacher to teach a foreign language and “the right of the parents to engage him so to instruct their children”); Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534-35 (1925) (holding that a compulsory school law which forbid parents from sending their children to private school “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control”); Prince v. Massachusetts, 321 U.S. 158, 166, 168 (1944) (citing Meyer and Pierce as standing for the principal of “children’s right to receive [education],” while at the same time stating that “[t]he state’s authority over children is broader than over like actions of adults,” reasoning that would be echoed in later school discipline cases).
13 406 U.S. 205 (1972).
15 430 U.S. 651 (1977).
16 Ibid. at 681.
17 See, e.g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
18 393 U.S. 503 (1969).
20 Ibid. at 504.
21 Ibid. at 503.
22 Ibid. at 506.
23 Ibid. at 511.
24 See Ibid. at 507.
26 E.g. New Jersey v. T.L.O., 469 U.S. 325 (1985).
27 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 503 (1969).
28 393 U.S. at 513.
29 Ibid. at 525–26.
30 Ibid. at 525.
31 Ibid. at 525–26.
33 Ibid. at 526.
34 E.g., Bethel School District v. Fraser, 478 U.S. 675 (1986).
35 478 U.S. 675 (1986).
36 Ibid. at 686.
37 Ibid. at 683.
38 See American Psychological Ass’n Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in the Schools? 852, AmericanPsychologist (Dec. 2008).
39 E.g. New Jersey v. T.L.O., 469 U.S. 325 (1985).
40 469 U.S. 325 (1985).
43 Ibid. at 348 (omission in original) (Powell, J., concurring).
44 Ibid. at 337.
45 Ibid. at 337.
46 Ibid. at 341–42.
48 515 U.S. 646 (1995).
49 Ibid. at 657.
50 See Hillary Rodham, supra note 11.
51 Vernonia, 515 U.S. at 653.
52 See infra notes 52-55 and accompanying text for a discussion of “zero tolerance” school discipline.
53 Gun-Free Schools Act, 20 U.S.C. § 7961 (2015).
54 See American Psychological Ass’n Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in the Schools? 852, AmericanPsychologist (Dec. 2008).
55 John J. DiIulio, Jr., The Coming of the Super—Predators, The Weekly Standard (Nov. 27, 1995), http://www.weeklystandard.com/the-coming-of-the-super-predators/article/8160.
56 See American Psychological Ass’n Zero Tolerance Task Force, supra note 54, at 852.
57 Schools that do not rely heavily on SROs to manage behavior use a variety of school-based behavior management systems. For examples, see, e.g., Positive Behavioral Interventions and Supports, https://www.pbis.org/ (last visited December 14, 2017); Lee Canter, Assertive Discipline (4th ed. 2009); Responsive Classroom, https://www.responsiveclassroom.org/ (last visited December 14, 2017); Amos Clifford, Center for Restorative Process; TeachingRestorative Practices with Classroom Circles 1 (2013).
58 Emily Morganet al., the Council of State Governments Justice Ctr., The School Discipline Consensus Report: Strategies from the Field to KeepStudents Engaged inSchool and Out of the Juvenile Justice System 187 (2014) [hereinafter School Discipline Consensus Report].
59 NathanJames et al., Cong. Research Serv., R43126, School Resource Officers: Law Enforcement Officers inSchools 2 (2013).
60 School Discipline Consensus Report, supra note 58, at 188.
62 Institute of EducationSciences, Public School Safety and Discipline: 2013-14 18 (2015).
63 See, e.g., A.M. v. Holmes, 830 F.3d 1123, 1139 (10th Cir. 2016).
64 Alabama, Alaska, Arizona, Arkansas, California, Delaware, Florida, Georgia, Kansas, Maine, Maryland, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Carolina, South Dakota, Texas, Utah, Vermont, Washington, West Virginia, and Wisconsin.
65 See, e.g., Wis. Stat. § 947.01 note 68 (LexisNexis 2017) (prohibiting “violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance,” and classified as a Class B misdemeanor) (applied when a child›s conduct was “disruptive of good order and tended to cause or provoke a disturbance” by bringing caffeine pills to school).
66 See, e.g., Cal. Penal Code § 415 note 6 (Deering 2017) (prohibiting “maliciously and willfully disturb[ing] another person,” subject to up to ninety days› imprisonment and/or a fine of $400) (considered in the case of a minor who acted aggressively and used offensive language in school).
67 See, e.g., S.C. Code Ann. § 16-17-420 (2017) (making it unlawful for “any person wilfully or unnecessarily…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…or to act in an obnoxious manner thereon,” classified as a misdemeanor subject to up to ninety days› imprisonment or a fine of $5000).
68 See Catherine Y. Kim, Policing School Discipline, 77 BrooklynL. Rev 861, 880 (2012). See generally Deborah N. Archer, Introduction: Challenging the School-To-Prison Pipeline, 54 N.Y.L. Sch. L. Rev. 867, 868 (2010) (on the so-called “school-to-prison pipeline”). See generally Juveniles for Justice, Justice for Juveniles: Youth Recommendations to Improve Educational Outcomes for Youth inthe Juvenile Justice System 1 (2015) (for an example of how juvenile justice involvement can hurt educational outcomes); Gary Sweeten, Who Will Graduate? Disruption of High School Education by Arrest and Court Involvement, 23(4) Just. Quarterly 462, 463 (2006).
69 Justice Policy Institute, EducationUnder Arrest: The Case Against Police inSchools 15 (2011).
70 Kerrin C. Wolf, Booking Students: An Analysis of School Arrests and Court Outcomes, 9 Nw J. L. & Soc. Pol’y 58, 70 (2013). See also Juvenile Law Center, Failed Policies, Forfeited Futures 2 (2014).
71 Lisa H. Thurau and Johanna Wald, Controlling Partners: When Law Enforcement Meets Discipline in Public Schools, 54 N.Y.L. Sch. L. Rev. 977, 1004 (2010).
72 Catherine Y. Kim, supra note 68, at 886.
73 Lydia Wright, Story from the field: Mississippi high school sending children to jail for ‘disorderly conduct,’ SouthernPoverty Law Center (Apr. 19, 2016) (describing how one student was handcuffed and threatened with arrest for this charge when “walking in the hallway, at a teacher’s request, during school hours”).
74 Erik Eckholm, With Police in Schools, More Children in Court, NYTimes (Apr. 12, 2013), http:// www.nytimes.com/2013/04/12/education/with-police-in-schools-more-children-in-court.html.
75 See Justice Policy Institute, supra note 69, at 15.
77 See Amanda Ripley, supra note 4. See also U.S. Department of EducationOffice for Civil Rights, Civil Rights Data CollectionData Snapshot: School Discipline Issue Brief No. 1, p. 6 (Mar. 2014) [hereinafter School Discipline Issue Brief No. 1]; Evie Blad and Alex Harwin, Black Students More Likely to be Arrested at School, Ed Week (Jan. 24, 2017), https://www. edweek.org/ew/articles/2017/01/25/black-students-more-likely-to-be-arrested.html.
78 Kerrin C. Wolf, supra note 70, at 72.
79 Jeffrey Benzing, From school to jail: How hundreds of kids get arrested in Pittsburgh schools ever y year, PublicSource ( Ju ly 3 1, 2 017 ), h t t p://publ icsou rce.org / from-school-to-jail-how-hundreds-of-kids-get-arrested-in-pittsburgh-schools-every-year/.
82 See, e.g., Cal. Penal Code § 415 (2017) (making unlawful, subject to imprisonment for not more than ninety days and/or a fine of not more than $400, “unlawfully fight[ing] in a public place,” “maliciously and willfully disturb[ing] another person by loud and unreasonable noise,” or “us[ing] offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”) This statute was used to charge a child who “hit a wall, kicked a trash can, and cursed in front of the school’s athletic director.”
83 See, e.g., Grand Rapids, Mich. Code of Ordinances § 9.142 (2017) (making it unlawful to “wilfully or maliciously make or assist in making any noise, disturbance or improper diversion by which the peace, quietude or good order of any public, private or parochial school is disturbed.”) Michigan has dozens of identical or similar ordinances.
84 See, e.g., Fla. Stat. § 871.01 (making guilty of a second-degree misdemeanor anyone who “willfully interrupts or disturbs any school or any assembly of people met for the worship of God or for any lawful purpose”); Kansas City, Mo. Code of Ordinances § 50-166 (2017) (making it unlawful “for any person acting alone or in concert with others to willfully, maliciously or contemptuously interfere unreasonably with any school or other meeting or assembly of people met together for any lawful purpose whatever, by making a noise, or by rude or indecent behavior or profane discourse within the place of any such school or assembly, or so near the same as to interrupt or disturb the order thereof”); W. Va. Code § 61-6-14 (2017) (making guilty of a misdemeanor anyone who “wilfully interrupt, molest or disturb any free school, Sunday school, or other school, a school exhibition…lawfully carried on”).
85 12 Am. Jur. 2d Breach of Peace and Disorderly Conduct § 1 (2017)
86 12 Am. Jur. 2d Breach of Peace and Disorderly Conduct § 2 (2017); see also Susan Ferriss, An Epidemic of Questionable Arrests by School Police, The Center for Public Integrity (Dec. 10, 2015), https://www.publicintegrity.org/2015/12/10/18944/epidemic-questionable-arrests-school-police
87 12 Am. Jur. 2d Breach of Peace and Disorderly Conduct § 2 (2017) (“[S]tudent›s conduct in vulgarly insulting teacher from about ten feet away by calling her a “fucking bitch” and then repeating this insult and also shouting “stupid bitch” while leaving the classroom did not constitute “fighting words” in violation of statute; considering the circumstances in which student uttered his words, his insults would not have likely provoked an ordinary teacher to exchange fisticuffs with the student or to otherwise react violently.”)
88 See Amanda Ripley, supra note 4.
89 See James King, School District Arrests Kids for Throwing Skittles, Vocativ (May 12, 2015), http:// www.vocativ.com/underworld/crime/where-students-can-get-arrested-for-throwing-skittles/ index.html; StocktonEducationEquity Coalition, Over-PolicinginStocktonSchools: AReport Card 1 (2017), https://www.aclunc.org/sites/default/files/Report_Card_SEEC.pdf; Susan Ferriss, An Epidemic of Questionable Arrests by School Police, The Center for Public Integrity (Dec. 10, 2015), https://www.publicintegrity.org/2015/12/10/18944/epidemic-questionable-arrests-school-police; Gary Fields and John R. Emshwiller, For More Teens, Arrests by Police Replace School Discipline, The Wall Street Journal (Oct. 20, 2014), https://www. wsj.com/articles/for-more-teens-arrests-by-police-replace-school-discipline-1413858602.
90 James King, School District Arrests Kids for Throwing Skittles, Vocativ (May 12, 2015), http:// www.vocativ.com/underworld/crime/where-students-can-get-arrested-for-throwing-skittles/ index.html
91 StocktonEducationEquity Coalition, Over-PolicinginStocktonSchools: AReport Card 1 (2017), https://www.aclunc.org/sites/default/files/Report_Card_SEEC.pdf
92 Susan Ferriss, An Epidemic of Questionable Arrests by School Police, The Center for Public Integrity (Dec. 10, 2015), https://www.publicintegrity.org/2015/12/10/18944/ epidemic-questionable-arrests-school-police
94 See, e.g., Foley, Alabama Code of Ordinances § 11–18 (2017) (rendering delinquent minors who engage in “disturbing school assemblies”); Fla. Stat. § 871.01 (2017) (“Whoever willfully interrupts or disturbs any school…commits a misdemeanor of the second degree.”); Grand Rapids, MichiganCode of Ordinances § 9.142 (2017) (“No person shall wilfully or maliciously make or assist in making any noise, disturbance or improper diversion by which the peace, quietude or good order of any public, private or parochial school is disturbed.”); Kansas City, Missouri Code of Ordinances § 50-170 (2017) (on “disturbing school activities”: “No person shall… intentionally disrupt, disturb or interfere with the teaching of any class of students, or any other school-sponsored activity conducted in a school building, or school grounds or in any other public place.”); Tarboro, North Carolina Code of Ordinances § 11-23 (2017) (on “disturbing school children or school functions”: “It shall further be unlawful for any person to cause any disturbance or to disrupt any school function.”); S.C. Code Ann. § 16-17-420 (2017) (on “Disturbing schools”: It shall be unlawful for any person wilfully or unnecessarily 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” subject to “not less than” thirty days imprisonment or by fine of between $50 and $500, or both.); Wash. Rev. Code § 28A.635.030 (2017) (on “Disturbing school”: “Any person who shall willfully create a disturbance on school premises during school hours or at school activities or school meetings shall be guilty of a misdemeanor.”).
95 See e.g., Fla. Stat. § 877.13 (2017) (making it unlawful “[k]nowingly to disrupt or interfere with the lawful administration or functions of any educational institution”); Ga. Code Ann. § 20- 2-1181 (2017) (on “disrupting operation of public school”); Wyandotte County – Unified Government, Kansas Code of Ordinances § 22-123 (2017) (on “disrupting schools”); St. Louis, Missouri Code of Ordinances § 15.112.020 (2017) (making it unlawful to disrupt or attempt to disrupt the normal operation of any public or private primary or secondary school”); Sparks, Nevada Code of Ordinances § 9.57.035 (2017) (on “[d]isrupting school activities”); N.C. Gen. Stat. § 14-288.4(6) (2017) (on disrupting any public or private educational institution); Boardman, OregonCode of Ordinances § Sec. 9.32.020 (2017) (stating that “[n]o person shall disrupt or threaten to disrupt the order, discipline or process in an educational setting”); Utah Code Ann. 76-9-106 (2017) (prohibiting “[D]isrupting the operation of a school” as a misdemeanor); Burlington, Vermont Code of Ordinances § 21-39 (2017) (on “[d]isruption of school operations”).
96 See, e.g., Gadsden, Alabama Code of Ordinances § 90-235 (2017) (making it unlawful to “interfere with the conduct and discipline of any public school”); Kansas City, Missouri Code of Ordinances § 50-166 (2017) (making it unlawful to “willfully, maliciously or contemptuously interfere unreasonably with any school”); Nev. Rev. Stat. Ann. § 392.910 (2017) (making it a misdemeanor to “interfere with or disturb any persons peaceably assembled within a building of a public school for school district purposes”); N.M. Stat. Ann. § 30-20-13 (2017) (stating that “[n]o person shall willfully interfere with the educational process of any public or private school”); N.D. Cent. Code § 15.1-06-16 (2017) (making it unlawful to “[w]illfully interfere with or interrupt the proper order or management of a public school by an act of violence, boisterous conduct, or threatening language”); Kershaw, South Carolina Code of Ordinances § 26-66 (2017) (making it unlawful to “[i]nterfere with or disturb in any way or in any place the students or teachers of any school”); S.D. Codified Laws § 13-32-6 (2017) (making guilty of a misdemeanor any person who “intentionally interferes with or interrupts the proper order or management of a public or nonpublic school”).
97 See, e.g., Topeka, Kansas Code of Ordinances § Sec. 54-131 (2017) (making it unlawful for any person to “willfully or maliciously make…in any building in which a public school shall be in actual session, any noise, disturbance or improper diversion”); Northville, MichiganCode of Ordinances § 54-156 (2017) (outlawing “[w]illfully or maliciously…making any noises, disturbance or improper diversions by which the peace, quietude or good order of any public, private or parochial school is disturbed”); Kansas City, Missouri Code of Ordinances § 50-166 (2017) (making it unlawful to “willfully, maliciously or contemptuously interfere unreasonably with any school…making a noise, or by rude or indecent behavior”).
98 See, e.g., S.C. Code Ann. § 16-17-420 (2017) (making it unlawful to “act in an obnoxious manner” in a school).
99 See, e.g., Gadsden, Alabama Code of Ordinances § 90-235 (2017) (making it unlawful to “be rude, boisterous or disorderly” in a school); Me. Rev. Stat. Ann. tit. 20-A, § 6804 (2017) (making someone who “willfully interrupts or disturbs the teacher or student by loud speaking, rude or indecent behavior” guilty of a civil offense); Kansas City, Missouri Code of Ordinances § 50-166 (2017) (targeting “rude or indecent behavior” in a school).
100 See, e.g., N.H. Rev. Stat. Ann. 193:11 § (2017) (specifying that “[a]ny person not a pupil who shall wilfully interrupt or disturb any school shall be guilty of a misdemeanor”). See contra S.D. Codified Laws § 13-32-6 (2017) (stating that any “person, whether pupil or not, who intentionally disturbs a public or nonpublic school when in session…so as to prevent the teacher or any pupil from performing his duty, is guilty of a Class 2 misdemeanor”).
101 Amanda Ripley, supra note 4.
107 See, e.g., Pitts v. State, 581 S.E.2d 306, 308 (Ga. Ct. App. 2003); Amanda Ripley, supra note 4.
108 Pitts v. State, 581 S.E.2d 306, 308 (Ga. Ct. App. 2003) (finding a violation of Ga. Code Ann. § 20-2-1181).
109 581 S.E.2d at 308; see also Amanda Ripley, supra note 4.
110 P.J.B. v. State, 999 So.2d 581, 583 (Ala. Crim. App. 2008).
111 999 So.2d at 588.
112 717 A.2d 393 (Md. Ct. Spec. App. 1998).
113 717 A.2d at 400.
114 Ibid. at 396. These charges included theft of a sandwich from the cafeteria and a drug transaction.
115 Md. Code Ann., Educ. § 26-101 (LexisNexis 2017) (“A person may not willfully disturb or otherwise willfully prevent the orderly conduct of the activities, administration, or classes of any institution of elementary, secondary, or higher education.”)
116 In re Nahif A., 717 A.2d at 399.
118 Ibid. at 400.
121 837 A.2d 168 (Md. 2003).
122 In re. Jason W., 837 A.2d at 170.
126 Ibid. at 173–174.
128 Ibid. at 175.
129 2015 Md. App. LEXIS 273 (Md. Ct. Spec. App. 2015).
130 In re Qoyasha D., 2015 Md. App. LEXIS at 1–2. See also Miranda Johnson, Why are we criminalizing behavior of students with disabilities?, WashingtonPost (Apr. 25, 2017), ht t ps://w w w.washing tonpost.com /news/answer-sheet /w p/2017/04/25/ why-are-we-criminalizing-behavior-of-children-with-disabilities/?utm_term=.0c7020405ace.
131 Ibid. at 3–4.
132 Ibid. at 4.
133 Ibid. at 5.
134 Ibid. at 5.
135 Ibid. at 9–10.
136 Ibid. at 11–12.
137 In re Damir M., 2015 Md. App. LEXIS 645, *12 (Md. Ct. Spec. App. 2015).
138 In re A.S., 2016 Md. App. LEXIS 995, *7 (Md. Ct. Spec. App. 2016).
139 In re Micah M., 2016 Md. App. LEXIS 309, *14 (Md. Ct. Spec. App. 2016).
140 In re. Jason W., 837 A.2d 168, 175 (Md. 2003).
141 See supra notes 137-39.
142 See, e.g., Richard Fausset and Ashley Southall, Video Shows Officer Flipping Student in South Carolina, Prompting Injury, NYTimes (Oct. 26, 2015), https://www.nytimes.com/2015/10/27/ us/officers-classroom-fight-with-student-is-caught-on-video.html.
143 See Amanda Ripley, supra note 4.
144 State Senator John Whitmire, Ticketing Students at School Teaches the Wrong Lesson (2011), http://www.senate.texas.gov/members/d15/press/en/p20110307a.pdf.
147 Donna St. George, In Texas Schools, Response to Misbehavior is Questioned, Wash. Post (Aug. 21, 2017), https://www.washingtonpost.com/local/education/in-texas-schools-a-criminal-response-to-misbehavior/2011/08/04/gIQA5EG9UJ_story.html?utm_term=.f0d1e9e156a7.
148 Amanda Ripley, supra note 4.
149 S.B. 393, 2013 Leg., 83(R) Sess. (Tex. 2013).
150 See Ibid., see also Jody Serrano, School Officers Can No Longer Issue On-Campus Misdemeanor Citations, Texas Tribune (Aug. 29, 2013), https://www.texastribune.org/2013/08/29/ class-disruption-cases-head-principals-office-not-/.
151 S.B. 393, 2013 Leg., 83(R) Sess. (Tex. 2013); see also Terri Langford, After Reforms, Student “Tickets” Decline, Texas Tribune ( Jun. 3 , 2 014), h ttps://www.texastribune.org/2014/06/03/ texas-students-see-fewer-tickets-issued/
152 Jody Ser rano, School Off icers Can No Longer Issue On-Campus Misdemeanor Citations, Texas Tribune (Aug. 29, 2013), https://www.texastribune.org/2013/08/29/ class-disruption-cases-head-principals-office-not-/.
153 S.B. 393, 2013 Leg., 83(R) Sess. (Tex. 2013); see also Terri Langford, After Reforms, Student “Tickets” Decline, Texas Tribune ( Jun. 3 , 2 014), h ttps://www.texastribune.org/2014/06/03/ texas-students-see-fewer-tickets-issued/
154 Ryan Poppe, Two Laws Lead To Significant Drop In Student Ticketing At Texas Schools, Texas Public Radio (Jun. 5, 2014), http://tpr.org/post/two-laws-lead-significant-drop-student-ticketing-texas-schools; Terri Langford, After Reforms, Student “Tickets” Decline, Texas Tribune (Jun. 3, 2014), https://www.texastribune.org/2014/06/03/texas-students-see-fewer-tickets-issued/.
155 S.C. Code Ann. § 16-17-420 (2017).
156 See Amanda Ripley, supra note 4.
157 See infra notes 161-67.
158 Paul Bowers and Maya T. Prabhu, South Carolina’s ‘disturbing schools’ law revision advances to Senate floor, Post and Courier (Mar. 21, 2017), https://www.postandcourier.com/news/ south-carolina-s-disturbing-schools-law-revision-advances-to-senate/article_792b7c94-0e58- 11e7-8b51-87320b9af5cb.html.; Paul Bowers, Law was written to protect girls’ schools, not to arrest students, Post and Courier (Aug. 5, 2016), https://www.postandcourier.com/archives/ law-was-written-to-protect-girls-schools-not-to-arrest/article_e2742436-32b9-5c06-8f32- c453d3d6d0d4.html.
159 South Carolina CopBody Slams High School Student to the Ground, https://www.youtube. com/watch?v=IY1e8qe-2O8 (last visited Jan. 30, 2018); Richard Fausset and Ashley Southall, Video Shows Officer Flipping Student in South Carolina, Prompting Injury, NYTimes (Oct. 26, 2015), https://www.nytimes.com/2015/10/27/us/officers-classroom-fight-with-student-is-caught-on-video.html.
160 Harriett McLeod, ‘Disturbing schools’ law criticized after South Carolina student’s arrest, Reuters (Oct. 30, 2015), https://www.reuters.com/article/us-south-carolina-police/disturbing-schools-law-criticized-after-south-carolina-students-arrest-idUSKCN0SO2NY20151030.
161 Evie Blad, State Laws That Can Lead to School Arrests Targeted for Change, Ed Week (Jan. 27, 2016), https://www.edweek.org/ew/articles/2016/01/27/state-laws-that-can-lead-to-school.html#.
162 Evie Blad, State Laws That Can Lead to School Arrests Targeted for Change, Ed Week (Jan. 27, 2016), https://www.edweek.org/ew/articles/2016/01/27/state-laws-that-can-lead-to-school.html#.
163 South Carolina General Assembly, A182, R198, S131 Status Information(last updated June 22, 2018), https://www.scstatehouse.gov/sess122_2017-2018/bills/131.htm.
164 Paul Bowers and Maya T. Prabhu, South Carolina’s ‘disturbing schools’ law revision advances to Senate floor, Post and Courier (Mar. 21, 2017), https://www.postandcourier.com/news/ south-carolina-s-disturbing-schools-law-revision-advances-to-senate/article_792b7c94-0e58- 11e7-8b51-87320b9af5cb.html.
165 Evie Blad, State Laws That Can Lead to School Arrests Targeted for Change, Ed Week (Jan. 27, 2016), https://www.edweek.org/ew/articles/2016/01/27/state-laws-that-can-lead-to-school.html#.
166 Erik Eckholm, South Carolina Law on Disrupting School Faces Legal Challenge, NYTimes (Aug. 11, 2016), https://www.nytimes.com/2016/08/12/us/south-carolina-schools.html.
167 E.g., Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016); In re Amir X.S., 639 S.E.2d 144 (S.C. 2006). See, e.g., Evie Blad, State Laws That Can Lead to School Arrests Targeted for Change, Ed Week (Jan. 27, 2016), https://www.edweek.org/ew/articles/2016/01/27/state-laws-that-can-lead-to-school.html# (noting an unsuccessful challenge to the law).
169 U.S. Const. amend. XIV, § 1.
170 West’s ALR Digest Constitutional Law § 4506 (2017).
171 See, e.g., Grayned v. City of Rockford, 408 U.S. 104 (1972); West’s ALR Digest Constitutional Law § 4506 (2017).
172 Ibid.; Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279, 286 (2003).
173 Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279, 286 (2003).
175 Romualdo P. Eclavea, Annotation: Supreme Court’s Application of Vagueness Doctrine to Noncriminal Statutes or Ordinances, 40 L. Ed. 2d 823 (2012).
177 Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279, 286 (2003).
178 See, e.g., Grayned v. City of Rockford, 408 U.S. 104 (1972); West’s ALR Digest Constitutional Law § 1140 (2017).
183 West’s ALR Digest Constitutional Law § 1140.2 (2017).
185 West’s ALR Digest Constitutional Law § 1141 (2017).
186 16A Am. Jur. 2d Constitutional Law § 430 (2017).
187 Compl. at 1, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016); ACLU Challenges South Carolina’s ‘Disturbing Schools’ Law, ACLU(Aug. 11, 2016), https://www.aclu.org/news/aclu-challenges-south-carolina-disturbing-schools-law. See also Robin Shulman, A South Carolina Student Was Arrested for ‘Disturbing a School’ When She Challenged Police Abuse, So We Sued, ACLU(Aug. 11, 2016), https://www.aclu.org/blog/racial-justice/race-and-inequality-education/ south-carolina-student-was-arrested-disturbing (detailing examples of students who have been arrested and charged under South Carolina’s school disturbance law).
188 Compl. at 1, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016)
189 Compl. at 6–9, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
190 Compl. at 1, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016)
191 Compl. at 1, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
192 Compl. at 1, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
193 Compl. at 1, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
194 Compl. at 2, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
195 Compl. at 2, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
196 Compl. at 3, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
197 Compl. at 3, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
198 Compl. at 11, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016); S.C. Code Ann. § 16-17-420 (2017).
199 Compl. at 12, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
200 Compl. at 13–14, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
201 Pl.’s Mot. for Prelim. Inj. and Mem. of Law in Support 18 (filed Aug. 16, 2016) (on file with the ACLU).
202 Statement of Interest of the United States at 2, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. Aug. 28, 2016).
203 564 U.S. 261, 292 (2011).
205 Statement of Interest of the United States at 7, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. Aug. 28, 2016).
206 Statement of Interest of the United States at 2–3, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. Aug. 28, 2016).
207 U.S. District Court District of South Carolina (Charleston) Civil Docket for Case #: 2:16− cv−02794−CWH, Civil Rights LitigationClearinghouse, https://www.clearinghouse.net/ chDocs/public/CJ-SC-0001-9000.pdf (last visited December 12, 2017).
208 Niya Kenny v. Alan Wilson (17-1367), Court Listener, https://www.courtlistener.com/docket/6074086/niya-kenny-v-alan-wilson/ (last visited December 12, 2017).
209 Kenny v. Wilson, 885 F.3d 280, 291 (4th Cir. 2018).
210 Kenny v. Wilson, 885 F.3d at 288-89.
211 Ibid. at 291.
212 639 S.E.2d 144 (S.C. 2006).
213 In re Amir X.S., 639 S.E.2d at 145.
215 Ibid. at 146.
217 Ibid. (citing U.S. v. O’Brien, 391 U.S. 367 (1968)).
220 In re Amir X.S., 639 S.E.2d at 146.
222 Ibid. at 148.
223 Ibid. at 149.
224 Ibid. at 148–149.
225 Ibid. at 149.
226 830 F.3d 1123 (10th Cir. 2016).
227 A.M. v. Holmes, 830 F.3d at 1129.
230 Ibid. at 1130.
232 Ibid. at 1132.
233 Ibid. The court also considered, in this same case, an unrelated incident involving a school search of F.M.
234 Ibid. at 1134.
235 Ibid. at 1139.
236 Ibid. at 1142.
237 Ibid. at 1148.
238 Ibid. at 1151.
239 Ibid. at 1169.
240 525 P.2d 543 (N.M. Ct. App. 1974).
241 A.M. v. Holmes, 830 F.3d at 1169.
243 A.M. ex rel F.M. v. Acosta, 137 S. Ct. 2151 (2017).
245 A.M. v. Holmes, 830 F.3d at 1169.
246 See, e.g., Deborah N. Archer, Introduction: Challenging the School-To-Prison Pipeline, 54 N.Y.L. Sch. L. Rev. 867, 868 (2010).
247 See Ibid. at 868 (noting that children are far more likely to be arrested at school than they were a generation ago).
248 See Gary Sweeten, Who Will Graduate? Disruption of High School Education by Arrest and Court Involvement, 23(4) Just. Quarterly 462, 463 (2006).
249 See Ibid. at 473 (noting that arrest and court appearance are “statistically significant predictors of high school dropout”).
250 See Ibid. at 477.
251 See Ibid. at 463.
252 See, e.g., Ibid.
253 See Juveniles for Justice, Justice for Juveniles: Youth Recommendations to Improve Educational Outcomes for Youth inthe Juvenile Justice System 1 (2015).
254 Ibid. at 2–4.
255 Ibid. at 5.
256 Ibid. at 6.
257 Ibid. at 8.
258 See Gary Sweeten, Who Will Graduate? Disruption of High School Education by Arrest and Court Involvement, 23(4) Just. Quarterly 462, 463 (2006).
259 Juvenile Law Center, Failed Policies, Forfeited Futures 2 (2014).
262 See Ibid. at 4.
263 See Ibid. at 2.
264 Evie Blad and Alex Harwin, Black Students More Likely to be Arrested at School, Ed Week (Jan. 24, 2017), https://www.edweek.org/ew/articles/2017/01/25/black-students-more-likely-to-be-arrested.html.
265 School Discipline Issue Brief No. 1, supra note 77, at 6.
266 Tamar Lewin, Black Students Face More Discipline, Data Suggests, NYTimes (Mar. 6, 2012), http://www.nytimes.com/2012/03/06/education/black-students-face-more-harsh-discipline-data-shows.html.
267 Amanda Ripley, supra note 4.
268 Evie Blad and Alex Harwin, Black Students More Likely to be Arrested at School, Ed Week (Jan. 24, 2017), https://www.edweek.org/ew/articles/2017/01/25/black-students-more-likely-to-be-arrested.html.
270 See Amanda Ripley, supra note 4; KirwanInstitute for the Study of Race and Ethnicity, Racial Disproportionality inSchool Discipline 3 (2014). See generally Justice Michael B. Hyman, Reining in Implicit Bias, 105 Ill. B. J. 26, 26 (2017) (describing implicit bias as the subconscious stereotyping based on race that affects everyone, including the justice system); Robert J. Smith and Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795, 795 (2012) (describing the impact of implicit bias on prosecutorial decisions).
271 Center for AmericanProgress, The Unfair Criminalizationof Gay and Transgender Youth 3 (2012).
272 Act 4 Juvenile Justice, Fact Sheet: LGBTYouth and Juvenile Justice 1 (2014).
273 Ctr. for AmericanProgress, Beyond Bullying10 (2014).
274 Ibid. at 2.
275 Ibid. at 5.
276 School Discipline Issue Brief No. 1, supra note 77, at 1.
277 See Ctr. for Law and Education, WhenSchools Criminalize Disability 1 (2002).
279 See PACER Ctr., Students with Disabilities and the Juvenile Justice System 3 (2013).
280 See supra note 169 and accompanying text for discussion of the vagueness doctrine.
281 Romualdo P. Eclavea, Annotation: Supreme Court’s Application of Vagueness Doctrine to Noncriminal Statutes or Ordinances, 40 L. Ed. 2d 823 (2012).; Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279, 286 (2003).
282 See, e.g., Compl. at 2, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
283 See, e.g., Compl. at 13–14, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
284 See supra note 169.
285 S.C. Code Ann. § 16-17-420 (2017) (making school disturbance a misdemeanor subject to up to ninety days› imprisonment or a fine of $5000).
288 73 Am. Jur. 2d Statutes § 234 (2017).
289 See J.D.B. v. North Carolina, 564 U.S. 261, 272 (2011) (explaining that “a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go”); Christopher Northrop and Kristina Rothley Rozan, Kids Will Be Kids: Time for a “Reasonable Child” Standard For the Proof of Mens Rea Elements, 69 Me. L. Rev. 109, 113 (2017) (arguing that the reasonable child standard should “always be used as the reference for proof of objective mens rea elements for juveniles”).
290 Robin Shulman, A South Carolina Student Was Arrested for ‘Disturbing a School’ When She Challenged Police Abuse, So We Sued, ACLU(Aug. 11, 2016), https://www.aclu.org/blog/ racial-justice/race-and-inequality-education/south-carolina-student-was-arrested-disturbing (detailing examples of students who have been arrested and charged under South Carolina’s school disturbance law).
291 See Erik Eckholm, South Carolina Law on Disrupting School Faces Legal Challenge, NYTimes (Aug. 11, 2016), https://www.nytimes.com/2016/08/12/us/south-carolina-schools.html.
292 See Miranda Johnson, Why are we criminalizing behavior of students with disabilities?, WashingtonPost (Apr. 25, 2017), https://www.washingtonpost.com/news/answer-sheet/wp/2017/04/25/why-are-we-criminalizing-behavior-of-children-with-disabilities/?utm_term=.0c7020405ace
293 See James King, School District Arrests Kids for Throwing Skittles, Vocativ (May 12, 2015), http://www.vocativ.com/underworld/crime/where-students-can-get-arrested-for-throwing-skittles/index.html
294 See School Discipline Consensus Report, supra note 58.
295 School Discipline Consensus Report, supra note 58.
296 See, e.g., A.M. v. Holmes, 830 F.3d 1123, 1139 (10th Cir. 2016).
297 See supra note 270 and accompanying text.
298 See supra notes 100-103 and accompanying text.
299 See supra note 270 and accompanying text.
300 See supra notes 178-182 and accompanying text; West’s ALR Digest Constitutional Law § 1140 (2017).
303 West’s ALR Digest Constitutional Law § 1140.2 (2017).
304 West’s ALR Digest Constitutional Law § 1141 (2017).
305 16A Am. Jur. 2d Constitutional Law § 430 (2017).
306 In re Amir X.S., 639 S.E.2d 144, 146 (S.C. 2006).
307 In re Amir X.S., 639 S.E.2d at 149.
308 Compl. at 1, Kenny v. Wilson, 2:16-cv-02794-CWH (D.S.C. 2016).
309 See Tinker v. Des Moines Independent School District, 393 U.S. 503, 513 (1969).
310 See Ibid.
311 See Ibid.
312 In re Amir X.S., 639 S.E.2d at 148–149.
313 See S.C. Code Ann. § 16-17-420 (2017) (making it unlawful for “any person wilfully or unnecessarily…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…or to act in an obnoxious manner thereon,” classified as a misdemeanor subject to up to ninety days› imprisonment or a fine of $5000).
314 E.g., State v. Cantwell, 676 P.2d 353 (Or. Ct. App. 1984) (holding portions of a disorderly conduct statute void for vagueness).
315 John P. Ludington, Annotation: Supreme Court’s Views Regarding Validity of Criminal Disorderly Conduct Statutes Under Void-For-Vagueness Doctrine, 75 L. Ed. 2d 1049 (2012).
318 16B Am. Jur. 2d Definiteness or vagueness of laws, regulations, and orders § 972 (2017).
319 Ibid., see also In re Juan A., 179 Cal. Rptr. 235, 242 (Cal. Ct. App. 2014) (holding that a child did not disturb the peace when he hit a wall, kicked a trash can, and cursed at the school’s athletic director, because the athletic director was not offended or likely to be spurred to violence).
320 John P. Ludington, Annotation: Supreme Court’s Views Regarding Validity of Criminal Disorderly Conduct Statutes Under Void-For-Vagueness Doctrine, 75 L. Ed. 2d 1049 (2012).
321 In re Juan A., 179 Cal. Rptr. 235, 242 (Cal. Ct. App. 2014).
322 See School Discipline Consensus Report, supra note 58.
323 School Discipline Consensus Report, supra note 58, at xxi.
324 Positive Behavioral Interventions and Supports, https://www.pbis.org/ (last visited December 14, 2017).
325 Lee Canter, Assertive Discipline (4th ed. 2009).
326 Responsive Classroom, https://www.responsiveclassroom.org/ (last visited December 14, 2017).
327 Amos Clifford, Center for Restorative Process, TeachingRestorative Practices with Classroom Circles 1 (2013).
328 See School Discipline Consensus Report, supra note 58, at 186.
330 Ibid. at 219.
331 Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969).
332 See U.S. Const. amend. XIV, § 1.