Today the Fourth Circuit issued its decision in Kenny v. Wilson, 2018 WL 1321983 (4th Cir. 2018), a case involving challenges by a number of students and student groups to South Carolina’s “Disturbing Schools Law” and “Disorderly Conduct Law,” which they challenged as being unconstitutionally vague. Both laws make it illegal to disturb schools (and other public places), but the plaintiffs complained that the statutes were both so vague that they could not tell in advance what sort of behavior would get them in trouble. Several of the student plaintiffs had been arrested before for challenging school police officers who they believed were engaging in excessive force or racial profiling.
The lower court dismissed the case for lack of standing, holding that the plaintiffs’ fear of future arrest was too speculative to support standing to challenge the constitutionality of the two laws. However, the Fourth Circuit ruled that at least for the students who had previously been arrested and were still in school, their fears were not based on speculation, but on their own personal histories. The Court also noted that attending school inevitably involves expressive conduct, and since these students were also alleging that their fear of being arrested would restrict their ability to “speak out about abuses” and “participate on conversations about policing,” they had at least alleged a legitimate claim under the First Amendment.
This case is now being sent back down to the trial court to presumably start discovery, so any decision is a long way off. However, this case is part of a growing movement to challenge what many people see as the “over-criminalization” of student misbehavior, in which schools use criminal laws to enforce discipline at school, thus leading many students to end up with a criminal record before they even get out of high school. Keep an eye on this case, as a decision on the merits could prove very interesting.