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Excerpted From: Frank LoMonte and Ann Marie Tamburro, From After-school Detention to the Detention Center: How Unconstitutional School-disruption Laws Place Children at Risk of Prosecution for “Speech Crimes”, 25 Lewis & Clark Law Review 1 (2021) (398 Footnotes) (Full Document)
One moment, 18-year-old Niya Kenny was uneventfully sitting through a lecture in her 12th grade algebra class. The next moment, she unwittingly became the creator of a viral smartphone video that provoked nationwide outrage.
Kenny began filming as a Richland County sheriff's deputy entered her classroom to confront a student who refused a teacher's orders to put away her phone and go to the principal's office. Kenny continued recording as the deputy wrestled the noncompliant student out of her desk, slammed her to the floor and dragged her across the classroom, as startled classmates cried out in her defense.
At worst, Kenny might have expected to face school discipline for using her cellphone camera during class and shouting. What she got instead was an arrest, a stay in the county jail, and a misdemeanor charge of violating South Carolina's “Disturbing Schools Law,” which carries a potential penalty of 90 days in jail or a fine of up to $1,000.
Even after the Richland County Sheriff's Office concluded that Deputy Ben Fields used excessive force and fired him, the charge against Kenny did not immediately go away. It took 10 months for the state prosecutor's office to decide against charging either Fields or any of the students. The case has lingered for years afterward as the focus of a civil lawsuit putting the South Carolina statute's constitutionality at issue.
As schools fortify their police presence, adding full-fledged officers with arrest authority, students face increasing jeopardy when vague laws carry the risk of jail time for nonviolent “speech crimes.” While Kenny's case put Spring Valley High School and South Carolina's school-disruption law on a national stage, comparable laws are on the books in 25 other states. The most extreme versions empower police to arrest students for momentary acts of defiance that once resulted in nothing worse than suspension.
In 2019, the U.S. Supreme Court passed up a chance to clarify whether a state can, constitutionally, prosecute and jail a teenager for expressive conduct with no greater showing than it would take to justify school discipline--and arguably, even less. But although the justices declined to take up the case of Masters v. Kentucky, the issue is unlikely to go away. Whether through Kenny's ongoing civil suit, or some other yet-to-be-identified vehicle, the Court should set clear boundaries on the authority of school police to criminalize “back-talking” offenses.
Whether police should be patrolling and making arrests inside schools became a matter of urgent national concern after the May 25, 2020, killing of a 46-year-old Black man, George Floyd, at the hands of a white Minneapolis police officer during an arrest for a petty crime. Students across the country, outraged over Floyd's death and those of other Black victims of excessive force, helped lead campaigns to persuade districts to remove armed police (sometimes referred to as School Resource Officers, or “SROs”) from schools.
The Floyd protests are among the converging societal factors that make it timely for a national conversation about whether young people are in peril of arrest and prosecution simply for being outspoken. In recent years, particularly following the February 2018 Parkland school shootings in South Florida, there has been a resurgence in student activism, including walkout protests that could qualify as prosecutable crimes in some states. The nascent school de-policing initiative coincides with a broader bipartisan movement to roll back “tough-on-crime” laws enacted during the 1990s that filled America's prisons. The reform movement has even been felt at the school level, as both Texas and South Carolina have narrowed their school-disruption laws in recent years to primarily target outside trespassers rather than students.
Just as the public is taking a renewed interest in policing and in the over-criminalization of nonviolent behavior, the local news business is disintegrating, with fewer professional journalists to cover matters of importance to communities than at any time in modern history. Because of the loss of journalistic watchdog coverage, it is increasingly important that students themselves can safely blow the whistle on inadequacies and hazards in their schools without fear of being accused of criminally disruptive behavior. Vaguely worded “disruption” laws that carry the potential of arrest, prosecution, and jail can intimidate student critics from sharing information with the public. For all of these reasons, it is worth examining the state of laws that criminalize school misbehavior, especially when those laws target students or put students at disproportionate exposure to prosecution.
Quite a bit of excellent recent scholarship addresses the issue of heavy-handed policing of nonviolent misbehavior in public schools, and how the “criminalization” of school discipline disproportionately places nonwhite students and students with disabilities on a trajectory toward dropping out of school and entering the criminal justice “pipeline.” This Article draws on that research and augments it by directly confronting the significant constitutional questions raised by statutes that expose students to arrest, prosecution, and jail for speech that “interferes” with school functions. A close analysis of these statutes--in particular, the Kentucky statute at the center of the Masters case--finds serious constitutional concerns, both because some states' laws set a dangerously low threshold for the criminalization of pure speech and because they fail to give fair notice of what constitutes a criminally punishable “interference” or “disturbance.” This Article draws a roadmap for litigators to challenge facially unconstitutional “school disturbance” laws, as well as point legislators toward a remedy for the most obvious constitutional infirmities.
Section II sets out the foundational First Amendment principles that constrain the government's authority to enforce content-based prohibitions on even highly offensive and disagreeable speech, and how those fundamental principles have been applied in the unique setting of a public K-12 school. Section III examines how federal courts have skeptically reviewed statutes that expose critics of the police or other government officials to prosecution. Section IV examines the proliferation of statutes across the country that purport to criminalize speech “disrupting” or “interfering with” school functions, and how constitutional challenges to those statutes have fared. Section V focuses on one of the most extreme and dangerous of these statutes, Kentucky's, and how the courts missed an opportunity to clarify that students cannot be criminally charged with “speech crimes” based on evidence no greater than (and potentially less than) what is needed to justify school disciplinary action. Section VI explains how the contemporary “law and order” mentality, fueled by tragic (though infrequent) acts of mass violence on school grounds, has militarized the enforcement of good-behavior standards, which makes vague criminal statutes that invite subjective prosecution all the more hazardous. Finally, Section VII concludes that, absent the authoritative guidance that the Supreme Court declined to provide in the Masters case, states should take the initiative on their own to rewrite misguided “school disruption” laws that invite discriminatory, viewpoint-based abuse.
[. . .]
As the country smoldered in outrage during June 2020 over the killings of unarmed Black people by police, America's streets filled with students demonstrating against continued police presence in their schools. Students helped achieve significant public-policy changes by doing exactly what the broadest school-disruption laws appear on their face to criminalize: talking back to authority figures.
One of many infirmities of school-disruption statutes is that they make no allowance for speech directed to the many thousands of armed police officers patrolling schools. If a student in Kentucky directed protest speech toward a school police officer that diverted the officer even momentarily from police work, that behavior would satisfy the statutory elements for arrest and prosecution--even though, as the Supreme Court has long affirmed, police are expected to absorb even harshly worded criticism without arresting their critics.
That schools may take disciplinary action against students whose speech materially and substantially disrupts school functions is settled law. But criminalization is quite a different matter. Across the country, students are engaging in acts of civil disobedience that might foreseeably “interfere with” normal school functions and activities, including demonstrations in response to mass school shootings. That a student who demonstrates against gun violence might be exposed to criminal prosecution and a year in jail is intolerable in a civilized society. Unfortunately, however, that is the risk for students in Kentucky and at least a handful of other states.
Reforming overly broad school-disturbance laws is not just a matter of creating a more comfortable educational climate for students' benefit. The public regularly learns of school mismanagement or abusive behavior by school authorities because of student whistleblowers. It is increasingly important that young people be empowered to share stories of wrongdoing by school police or other authority figures, because traditional news media coverage of schools has dwindled. One national study, conducted even before recent newsroom downsizing worsened the problem, found that only 1.4% of mainstream media stories involved education, and even that minimal coverage was dominated by shootings and other disasters. Because it is so challenging for adults to get a candid picture of what is going on inside schools, laws that intimidate whistleblowers like Niya Kenny from sharing stories of official misconduct arguably make schools more, not less dangerous.
Although Masters is an outlier situation because it involves an adult school visitor, the far more common application of the statute will be against students. And those students--including protesters, whistleblowers, and editorial commentators--will suffer the brunt of vague, subjective enforcement if constitutionally infirm statutes are permitted to remain on the books.
Young people attending public schools are uniquely vulnerable to government overreaching, because they spend most of their waking hours in a custodial setting interacting with government authority figures. They are doubly vulnerable because government punishment of young people takes place beneath a shroud of secrecy, as privacy laws make the student disciplinary process and the juvenile court process nearly impervious to scrutiny. And they are more likely to run afoul of indistinct laws and regulations simply because--with the exception of prisoners--they are the most-watched people in America, subject to constant monitoring by school officials and surveillance cameras as well as by police. School is, in many ways, the perfect “trap for the unwary” to make a misjudgment and end up in jail: Authority figures monitor students' every move. They can search and question students with minimal justification. And the more rules schools enact, the more violations police can invoke as a basis for even more intrusive searching, interrogation, and detention.
Although it is unlikely that many teenagers are actually being jailed for criticizing their teachers or principals, statutes like Kentucky's still may inflict a harmful “chill” on students' willingness to assert themselves (for instance, to complain about sexual harassment or to defend themselves when wrongfully accused of misconduct). Because school employees are under no countervailing infirmity--no statute exposes a school employee to criminal prosecution for speaking “disruptively” to a student or parent--the statute worsens the already-existing power imbalance that especially disadvantages nonconforming students. While overbroad statutes such as those in Arkansas, Idaho, Kentucky, Delaware, Montana, North Dakota, and West Virginia might be judicially narrowed in the event of a First Amendment challenge, generations of students should not have to wait for someone to volunteer to become the “test arrestee” whose appeal provides that vehicle. A speech-restrictive statute that cannot constitutionally be enforced as written is repugnant because a reasonable speaker cannot be expected to commit a crime in hopes that a judge will rewrite the statute.
Across the country, advocates from the left and right are uniting around “criminal justice reform” measures that decriminalize minor drug offenses, reduce the penalties for nonviolent crimes, make it easier to obtain release from jail on bail, and remove the reputational stigma that results from a publicly accessible criminal record. While some of the movement may be motivated by mercy and a renewed belief in the power of rehabilitation, some is also based on the recognition that law enforcement agencies disproportionately choose to use their arrest authority on people of color.
Even if arrest results in “only” a brief commitment to juvenile detention rather than adult jail, juvenile incarceration carries real consequences and real risks. Far too many juvenile detention centers have proven to be unsafe places for kids. In a series of reports named a finalist for the 2018 Pulitzer Prize in reporting, The Miami Herald documented that employees at Florida juvenile correctional facilities used violence to keep teenage detainees in line, including offering snacks and treats as a “bounty” for detainees to attack each other for sport. The revelations led members of the Florida legislature to stage surprise inspections of youth detention centers, where one state representative concluded: “The living conditions are horrible, horrific, deplorable.” Even where employee behavior does not rise to the level of felonious, reports of overcrowding, inadequate medical and mental-health services, and ineffective safety precautions are commonplace. And this is to say nothing of the conditions in county jails, where older teens like Niya Kenny often are held without the benefit of basic medical or educational services. Taking any child into custody is a decision to put the child in the path of harm. Logic dictates that such a weighty decision should be made only where the child's presence in school presents a hazard to others that might justify risking the child's own safety--certainly not for behavior that is merely distracting. At a time when policymakers everywhere are offering adult-aged offenders second chances at rehabilitation, it is counter-intuitive for the legal system to expose vulnerable young people to dangerous confinement conditions for what could be no more than a fleeting adolescent temper outburst.
The justice system has ample tools to deal with seriously disruptive behavior at schools by way of well-established statutes criminalizing threats, harassment, and disorderly conduct. Even if school disturbance laws were wiped off the books tomorrow, it is unclear exactly what subset of antisocial behavior, if any, would fail to receive adequate punishment. But even assuming that policymakers believe schools need some enhanced protection against outsiders like the perpetrator of the Newtown, Connecticut, mass school shootings in 2012, it is possible to craft narrower and more constitutionally sound remedies than Kentucky-style school disturbance laws. States such as Utah and (after its 2018 reform legislation) South Carolina offer a model for more precisely tailored laws that target non-expressive conduct by school intruders, without worsening the already-stifling environment for student speech in schools.
Even in states where courts have imposed a narrowing judicial construction on facially overbroad statutes, as in California, Florida and Maryland, legislators should revisit their statutes so that--if the prohibitions must exist at all--the narrowness of their scope is readily apparent to a reasonable student or police officer, not discernible only by constitutional scholars. It serves no valid purpose to leave statutes known to be unconstitutionally overbroad on the books where they can be abused for coercion and intimidation (for instance, as bargaining leverage to make families accept undeserved disciplinary action, out of fear that school authorities will escalate the case to criminal court).
Vague school-disruption laws persist as a relic of an increasingly discredited “get-tough” era in which policymakers' default response to every societal ill was arrest, prosecution, and jail. While Johnathan Masters' case, perhaps understandably, failed to generate the sympathy and outrage that accompanied Niya Kenny's arrest, it should not take a viral video in every state to motivate a reexamination of antiquated criminal codes that accomplish little except making schools more disempowering.
Professor & Director of the Joseph L. Brechner Center for Freedom of Information at the University of Florida in Gainesville, Florida. B.A., 1992, Political Science, Georgia State University; J.D. (Order of the Coif), 2000, University of Georgia School of Law.
Legal Research Assistant, Joseph L. Brechner Center for Freedom of Information. J.D., 2021 (anticipated), University of Florida Levin College of Law.
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