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Federal Appeals Court Recognized Students’ Rights To Challenge South Carolina Law That Chills Freedom Of Expression

The Fourth Circuit Court of Appeals recently issued a decision against the mass incarceration of students in South Carolina and in defense of students’ rights to engage in freedom of expression.

It determined [PDF] multiple students arrested and charged with violating the state’s “disturbing schools” law and “disorderly conduct” statute made sufficient arguments that the statutes are too vague for students to know what conduct will be interpreted as violating the law.

The appeals court found the claims that they chill students’ exercise of free expression, “forcing them to refrain from exercising their constitutional rights or to do so at the risk of arrest and prosecution,” were valid. It vacated a district court decision and remanded the case.

Sarah Hinger, a staff attorney for the American Civil Liberties Union (ACLU), which brought the case against the statutes, declared, “The court has sent a clear message: rather than funnel children into the criminal justice system over minutiae and lawful activities, schools must recognize and protect students’ rights. This message is particularly important in this time of student activism.”

The state’s “disturbing schools” law makes it unlawful for any person to “interfere with or to disturb in any way or in any place the students or teachers of any school or college” in the state. It may be applied against anyone who enters a school or college premise and “loiters” around the premise, “except on business, without the permission of the principal or president in charge.”

An individual can be punished with 90 days in jail or a fine of $1,000 for violating the law. Additionally, the “disorderly conduct” law may target any person on any highways or at any public places, who conducts themselves in a “disorderly or boisterous manner.”

Criminal charges under the two statutes, according to the ACLU, are the “leading reasons young people enter the juvenile justice system in South Carolina. Between 2010 and 2016, over 9,500 young people throughout the state were referred to the Department of Juvenile Justice under the disturbing schools law, a statistic that excludes those students seventeen and older who are charged and prosecuted as adults.”

Niya Kenny and Taurean Nesmith, who are both black, were arrested and charged with violating the state’s “disturbing schools law” after they challenged police conduct.

Kenny witnessed a school resource officer, who was known to students as “Officer Slam,” “pull a female student from her desk, drag her on the floor, and handcuff her.” Video of the incident went viral. As she tried to document it and urged someone to stop the abuse of her classmate, she was placed under arrest. It left her “scared and humiliated, and she withdrew from high school.”

Nesmith, a student at Benedict College, accused a campus police officer of engaging in racial profiling and questioned the request from the officer to produce identification. The officer arrested him.

Four of the students challenging the statutes (two under the umbrella of the nonprofit organization, Girls Rock) are in middle or high school and were previously charged with violating the “disturbing schools law.”

One of them, D.S., a black student with learning disabilities, faced a charge of violating the law after an “altercation” she did not start. In fact, she was the only person with an injury, “a lump on her head.”

The appeals court concluded D.S., as well as Nesmith, faced a “credible threat of future arrest or prosecution” under the statutes because they regularly attend school. They may have further interactions with “school resource officers,” and they were previously prosecuted under the laws. Plus, officials accused of enforcing the laws have not “disavowed enforcement” if these students “engage in similar conduct in the future.”

According to the ACLU, these statutes disproportionately impact black students or students with disabilities. The appeals court agreed that, too, covers D.S. and Nesmith, making the threat against them “credible.”

Hinger asserted, “Under South Carolina’s so-called ‘disturbing schools’ law, black students are nearly four times as likely to be punished than white students. That means that black children are disproportionately saddled with criminal records and other burdens that come with charges and arrests.”

These laws are a part of “Lockdown High.” As Annette Fuentes detailed in her groundbreaking book published in 2011 under the same title, schools feed into the prison system.

When officials in President Donald Trump’s administration talk about “hardening” schools in response to the shooting at Marjory Stoneman Douglas High School in Parkland, Florida, they are urging cities and states to increase “zero tolerance” measures that will restrict the dignity, freedom, and rights of young people.

For example, Marjory Stoneman Douglas students will apparently now be required to use “only clear backpacks” after spring break. Students have complained about this change, saying it will not make them safer but transform their school into a jail.

Schools in New Jersey, Pennsylvania, and South Carolina punished students for walking out of class in solidarity with students at Marjory Stoneman Douglas, who are at the forefront of the struggle for meaningful gun control.

Fortunately, no students were prosecuted. But laws like the ones wielded against students in South Carolina could easily be deployed to crush student activism in high schools.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."