Kenny v. Wilson (2021): The Beginning of the End for Laws Criminalizing Student Misbehavior?

As of 2019, 31 states had laws or local ordinances that criminalized student misbehavior that occurred in or around schools. These laws often criminalize behaviors committed by students that may be socially inappropriate but fall short of criminal behavior. Moreover, the criminalized behaviors are often indistinguishable from behaviors that receive minimal penalties under school codes of conduct (e.g., cursing, loitering, boisterous conduct, annoying conduct). In an excellent article titled “Arrested at the Schoolhouse Gate: Criminal School Disturbance Laws and Children’s Rights in Schools,” Noelia Rivera-Calderón (2019) called for the abolishment of these laws because they are often too vague and overly general resulting in inconsistent enforcement

A very interesting case out of South Carolina, Kenny v. Wilson (2021), could spell the end of such laws that criminalize student misbehavior. The state of South Carolina had two laws, South Carolina Disturbing Schools Law (SC Code § 16-17-420) and the South Carolina Disorderly Conduct Law (SC Code § 16-17-530). The South Carolina Disturbing Schools Law made it illegal for any person to (a) interfere or to disturb in any way or in any place the students or teachers in any school or college; (b) loiter about such school or college premises, unless the person is doing business with the permission of the principal or president in charge; or (c) act in an obnoxious manner. The South Carolina Disorderly Conduct Law made it a misdemeanor for a person to be grossly intoxicated in a public place or to otherwise conduct themselves in a disorderly or boisterous manner or to use obscene or profane language. The two laws had been applied almost exclusively to students in schools. The problems with these laws essentially leave the definition of disorderly behavior vague, subjective, and dependent upon each individual officer’s opinion or judgment regarding what constitutes disorderly behavior.

In 2016 these two laws were challenged in a series of important cases that stemmed from an arrest made of a student who posted a video of a violent, headline-grabbing altercation in her classroom. In 2015 at a high school in Columbia South Carolina, a 16-year-old African American female student took her cell phone out in class. Her algebra teacher asked her to give up the phone. After multiple requests by the teacher, she continued to refuse to hand over her phone so the teacher called the principal. The student refused to hand over her cell phone to the principal, who then called the school resource officer (SRO) to the classroom. The student did not give her cell phone to the SRO who then tried to handcuff her and eventually flipped the student’s desk over with her seated in it. He then proceeded to drag her across the classroom floor. A student in the class, Niya Kenny, recorded the incident and posted it on social media. That video and others recorded by students in the classroom created a national furor over the use of unreasonable force in classrooms. When she was recording the incident, Niya uttered a few explicates about the school resource officer’s actions. Niya was later handcuffed, arrested, and taken to a detention center in Columbia, South Carolina. Nine hours after her arrest, Kenny was released from the detention center and the charges against Kenney were eventually dropped. Although the dragging incident did receive national attention, Niya’s arrests and detention did not.

In 2016, the American Civil Liberties Union (ACLU) filed a federal lawsuit against South Carolina alleging that the state’s Disturbing School Law and Disorderly Conduct Law were overly vague and violated due process right guaranteed by the Fourteenth Amendment to the US Constitution because the laws failed to provide sufficient notice of actual prohibited conduct and encouraged arbitrary and discriminatory enforcement. Additionally, the lawsuit asserted that both laws criminalized behavior that was indistinguishable from typical juvenile misbehavior, which schools address on a daily basis without involving the criminal justice system.

The case was brought before the district court The district court dismissed the complaint holding that the plaintiffs had a lack of standing to bring the lawsuit because their fear of possible arrest and prosecution under the two statutes did not arise above speculation, and did not constitute actual injury. The dismissal was appealed to the US Court of Appeals for the Fourth Circuit. The circuit court vacated the ruling of the district court and ruled that at least some of the plaintiffs in the lawsuit did not rely on speculation but rather that they had been previously arrested and charged under the disturbing school laws. Moreover, the plaintiffs did not know what specific actions at school may lead to charges in the future. Additionally, the circuit court concluded that the plaintiffs’ right to freedom of expression was curtailed because they did not know what expression at school may lead to arrest and charges in the future. The circuit court remanded the case back to the district court for further proceedings. In the interim, the South Carolina law was amended on May 17, 2018 to apply only to non-students.

In Kenny v. Wilson (2021), the district court judge, Margaret B. Seymour, granted a motion to certify all elementary and secondary public school students in South Carolina as a class. Judge Seymour also held that despite the changes to South Carolina’s disorderly conduct laws, students who had previously been arrested or cited for disturbing school offenses had their educational and life trajectories affected and allowed the case to continue. Alan Wilson, the attorney general for South Carolina, argued that if the judge invalidated the disorderly conduct statute, she would remove a tool of law enforcement for dealing with disruptive and fighting students who are yelling at staff and visitors, hitting other students, running away from staff, kicking over furniture, hitting doors, shoving staff and law enforcement. Judge Seymour dismissed this assertion noting that the Constitution does not permit criminal laws to be so broadly defined that they serve as an all-purpose tool for law enforcement.

Judge Seymore also asserted that such disorderly conduct laws can potentially cause arbitrary and discriminatory enforcement and the “charge itself, even absent a conviction, carries long lasting and deleterious effects.” The State, therefore, should fashion “law enforcement tools to address specifically for the school context what conduct it would criminalize and the standard by which the prohibition should be applied, and our Constitution requires no less” (Kenny v. Wilson, 2021, p. 21). 

Does Kenny v. Wilson (2021) point to the beginning of the end for vague disturbing school laws, such as those on the books in many states? Possibly. Although the ruling from Judge Seymour is only binding in South Carolina, it is a strong decision and could prove to be influential or persuasive in other state and federal courts throughout the country. When a ruling is persuasive, courts in other jurisdictions and of different levels are not bound to follow the ruling but may do so because the judges are persuaded by the decision. Judge Seymore’s ruling was clear and convincing. It may prove to be influential as other courts in other jurisdictions rule on laws similar to the South Carolina laws.

What can we infer such rulings mean for educators? Are there are lessons from Kenny v. Wilson (2021) for educators. I believe the answer is yes. When students break school rules, educators need to hold them accountable. However, any consequences used should be consistently and fairly applied. Additionally, students should clearly know in advance what behaviors are encouraged and what behaviors are prohibited. The rules and consequences that principals have in their schools and teachers have in their classrooms must be clear, reasonable, and school-related. Rules should be clear enough to allow students to distinguish permissible from prohibited behavior and consequences must be applied fairly and consistently.

Read Judge Seymore’s ruling in Kenny v. Wilson (2021) here.

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