BRACK: Vague school disciplinary law blocked, but ruling appealed

By Andy Brack, editor and publisher  |  A school-to-prison pipeline emboldened by what’s been called a vague disorderly conduct law is closed for now, but the state attorney general wants it back.  Instead of appealing a law that has wrongly criminalized student behavior for too long, S.C. Attorney General Alan Wilson should let schools follow normal disciplinary protocols to do their jobs and stop wasting time in federal courts.

In a 39-page ruling, Senior U.S. District Judge Margaret B. Seymour of Columbia on Oct. 8 issued an order to keep the state permanently from enforcing a law that allowed students to be charged criminally for what the ACLU of South Carolina says can be normal adolescent behaviors “including cursing or undefined ‘disorder’ or ‘boisterousness’ behavior at school.”  The judge also ruled the state couldn’t keep records of students charged under the law or an earlier version of it that was on the books for years.

“The court recognized that broadly criminalizing students as a means to manage their behavior is not only bad policy, [but] it also violates their constitutional rights,” said Sarah Hinger, a senior staff attorney with the ACLU Racial Justice Program in a press statement.  “The court has sent a clear message: Rather than funnel children into the school-to-prison pipeline over minor rule-breaking and protected First amendment activities, schools must recognize and protect students’ rights.”  Another lawyer for the organization said it would continue fighting against “draconian school policing models” and push for evidence-based efforts to keep schools safe.

Between 2015 and 2020, more than 5,000 South Carolina students were arrested for disorderly conduct.  More than 70 percent of those arrests occurred at schools — and disproportionately among students of color and students with disabilities, the ACLU said. 

“Black students across the state were more than six times as likely as white classmates to be targeted under the law and arrested for being ‘disorderly’ or ‘boisterous,’” the group said, adding that disabled students were also often charged instead of getting the support services they needed.

The case, originally filed in 2016, included a Columbia student who was arrested and taken to a detention center for crying out after a school resource officer picked up and threw a classmate to the ground. Other plaintiffs in Conway, Summerville and Travelers Rest later were added to the case.

Wilson’s office, which appealed the ruling to the Fourth Circuit Court of Appeals on Oct. 12, said it had no comment because the litigation was pending.  But it argued to Seymour that nullifying the law would take away law enforcement tools at schools and “leave matters up to school disciplinary policy.”

Seymour disagreed. She ruled the law, which was passed by the legislature in 2018 to supersede another law on the books for generations, abridged fundamental rights held by students.

“These tools furthermore encourage, if not cause, arbitrary and discriminatory enforcement, as reflected by the undisputed record, because they provide law enforcement with no standard for application,” she wrote.  “The record further demonstrates that the charge itself, even absent a conviction, carries long-lasting and deleterious effects. 

“The state is capable of fashioning its 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.”

In other words, the state can’t just roust students for what may be considered regular student behavior to get troublemakers out of the way.  There has to be a clear process to dispense discipline in schools.

South Carolinians should expect no less.  Schools need to be safe, but schools also need to follow the freedoms protected in the Constitution.  Let’s keep schools places of learning, not places where craven politicians try to score political points by filling schools with police as a way to throw red meat to their base. 

Andy Brack is editor and publisher of Charleston Currents, and publisher of the Charleston City Paper.  Have a comment?  Send to: editor@charlestoncurrents.com.