Yesterday, the American Civil Liberties Union (ACLU) filed a lawsuit seeking to have South Carolina’s “Disturbing Schools” statute declared unconstitutional. The lawsuit is premised on due process grounds—laws must be written so that people can know what is and is not illegal, and the statute makes it illegal to act in an “obnoxious manner,” which can mean almost anything a police officer wants it to mean. That could include subjectively offensive speech, filming an officer’s actions, or angrily criticizing an officer as he slammed a classmate to the floor.
South Carolina’s “Disturbing Schools” statute encompasses both high school and college students, and makes it unlawful for any person to, in relevant part:
[…] wilfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; […]
But what does it mean to be “obnoxious” at (or even near) a school or college?
That proscription could encompass a wide range of behavior, leaving enforcement up to police officers and prosecutors’ subjective opinion that a student has acted in an “obnoxious manner.”
At least in some cases, law enforcement has viewed the “Disturbing Schools” statute as including “offensive” speech to or about administrators or police officers. In 1994, South Carolina’s Office of the Attorney General was asked “whether [a] student’s use of offensive language toward [a] principal or police officer” might subject the student to arrest under the statute. In a formal opinion interpreting the statute, the Attorney General answered this question in the affirmative: The “[u]se of obscene or profane language near” a school might well subject a student to arrest under the statute. That renders the statute so broad that it grants police officers unfettered discretion to arrest students if the officer subjectively felt offended by the content of the students’ words.
And how did this unfettered discretion play out in the situation giving rise to the ACLU’s suit?
One of the students suing to overturn the law was a college student who was arrested outside of his college-owned apartment. His offense? According to the lawsuit, after a campus security officer demanded his ID, the student complained that the officer was stopping him because of his race.
This kind of abuse is apparently not an isolated incident. In a separate case, a high school student, Niya Kenny, was arrested and charged under the “Disrupting Schools” statute after documenting a sheriff’s deputy violently pulling a student out of her chair. Videos of the incident were widely viewed and, as The New York Times reports, “led to the officer’s rapid dismissal, a federal civil rights investigation and national reflection on the line between youthful misbehavior and criminal activity, and on the proper role of police in the schools.”
Not only does an ambiguous law grant administrators and officers too much leeway, but that leeway can result in disproportionate enforcement. Per the Times report:
African-American students are four times as likely as white students to be charged, state records indicate, and across the state, as a result of the vagueness in the law, the same act can draw a verbal warning in one school and a criminal charge in another.
Conviction can result in detention of up to 90 days and a $1,000 fine, but the more common results are diversion to counseling, probation or placement in special disciplinary schools.
Much of the disruptive behavior that schools seek to deter—not including the protected activities described above—can be readily punished using existing, well-defined laws. Even a cursory review of the 1994 opinion from South Carolina’s Attorney General reveals that much of the behavior addressed—including loitering, trespassing, and assault—is already prohibited by other statutes. There is no need to grant officers widespread latitude to arrest anyone they believe is acting in an “obnoxious” manner near a school.
On a long enough timeline, every student of any age—including college students—is likely to be “obnoxious” or say “obnoxious” things at some point. That shouldn’t make them criminals.
The First Amendment is already clear on that point. The government may not detain, incarcerate, or assign criminal records to those who say things it finds “obnoxious.”