South Carolina laws against 'disorderly' school conduct ruled unconstitutional

Students in their first day of school at Wilder Elementary School in Louisville, KY
Empty class room is seen at Wilder Elementary School in Louisville, KY, Kentucky, U.S., August 11, 2021. REUTERS/Amira Karaoud
  • 4th Circuit holds South Carolina laws are unconstitutionally vague
  • Laws were disproportionately enforced against Black students, ACLU says

(Reuters) - A federal appeals court on Wednesday ruled that a pair of South Carolina laws that allowed elementary and secondary school students to be criminally charged for behaviors like cursing or acting in a "disorderly" or "boisterous" way were unconstitutional.

A 2-1 panel of the 4th U.S. Circuit Court of Appeals held the laws failed to provide students notice of what behaviors might expose them to criminal charges and lacked sufficient safeguards to prevent arbitrary or discriminatory enforcement.

The ruling marked a victory for a group of students represented by the American Civil Liberties Union who challenged the laws, which they said had been disproportionately enforced against students of color and students with disabilities.

U.S. Circuit Judge Toby Heytens, writing for the majority, said the laws were too vague to provide elementary and secondary school students due process under the U.S. Constitution's 14th Amendment.

"Laws imposing such weighty costs on free expression must define their bounds, so students have fair warning about what is prohibited and the discretion of those who enforce the laws is adequately constrained," Heytens wrote.

Heytens said the disorderly conduct law was so broad that unless the state meant to criminalize many "childish shenanigans," it was unclear what types of "adolescent mischief" were covered, creating the risk of arbitrary enforcement.

Heytens, an appointee of Democratic President Joe Biden, noted both laws had been widely enforced, with 3,735 referrals of students for prosecution under the disorderly conduct law and 9,500 under the disturbing schools law, with some defendants as young as 7.

Black students from 2015 to 2020 were charged with disorderly conduct at roughly seven times the rate of white ones, Heytens noted, adding: "The Constitution prohibits this type of inequitable, freewheeling approach."

Sarah Hinger, a lawyer with the ACLU, in a statement welcomed the ruling, saying it "recognized that the challenged laws arbitrarily criminalized a wide range of common student behavior."

Republican South Carolina Attorney General Alan Wilson, whose office defended the laws in court, did not respond to a request for comment. He had argued the laws should be judged under a more lenient vagueness standard.

The decision upheld a lower-court judge's 2021 ruling barring enforcement of the laws and ordering the expungement of records of children charged under them.

U.S. Circuit Judge Paul Niemeyer, an appointee of former Republican President George H.W. Bush, dissented, saying there was "little evidence" anyone had difficulty understanding what conduct was prohibited.

"We owe the State deference in its efforts to address school disruption problems — especially in this age when schools are under stress — by recognizing the presumption that its statutes are constitutional," he wrote.

The case is Carolina Youth Action Project v. Wilson, 4th U.S. Circuit Court of Appeals, No. 21-2166.

For the Carolina Youth Action Project: Sarah Hinger of the American Civil Liberties Union

For South Carolina: James Smith of the South Carolina Office of the Attorney General

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at