Disturbing Schools Statute at Issue in Civil Rights Class Action

A group of students have filed a proposed civil rights class action lawsuit seeking to block enforcement of South Carolina’s Disturbing Schools and Disorderly Conduct statutes.

Plaintiffs in the class action lawsuit are current and former students of South Carolina schools and one non-profit organization, Girls Rock Charleston Inc. that purports to represent similarly situated students.

All plaintiffs say they or the members of their organization are at risk for future referral or arrest under the statutes at issue.

The plaintiffs are suing a collection of law enforcement officials, including South Carolina Attorney General Alan Wilson and various local sheriffs and chiefs of police. They seek a court injunction blocking these officials from enforcing the Disturbing Schools and Disorderly Conduct statutes.

According to the class action lawsuit, the South Carolina Disturbing Schools statute makes criminal any “interference” or “disturbance” of a school, any act of “loitering,” and any “obnoxious” action.

They argue the language of this statute creates “an impossible standard for school children to follow and for police to enforce with consistency and fairness.”

They also argue that the state’s Disorderly Conduct statute is similarly vague.

That statute prohibits behaving “in a disorderly or boisterous manner,” the plaintiffs say. They claim that young people are commonly referred to the Department of Juvenile Justice under that statute.

Plaintiff Niya Kenny says she was arrested under the Disturbing Schools statute merely for documenting another student’s detention by a police officer.

Kenny says when the officer forcefully pulled the classmate from her desk and handcuffed her on the floor, Kenny responded by documenting the event and calling out for someone to stop the incident. For those actions, Kenny says she was arrested and charged under the Disturbing Schools statute.

Twenty-one-year-old plaintiff Taurean Nesmith says he was arrested and charged under the Disturbing Schools statute while attending Benedict College in Columbia. Nesmith was arrested and charged after he questioned a police officer’s demand to see his identification.

Plaintiffs D.S. and S.P. say they have a history of adverse action being taken against them under each of the statutes at issue. D.S. says she was charged under the Disturbing Schools statute, and S.P. says she was referred under the Disorderly Conduct statute, both while attending school.

The plaintiffs allege the Disturbing Schools statute has been improperly enforced in a number of ways.

They allege that in 2014 and 2015, black students were almost four times more likely than white students to be referred under a charge of Disturbing Schools.

That ratio increases to a six-fold greater likelihood within Charleston County, the plaintiffs allege.

Also within Charleston County, they say young people have been more likely to be referred to the juvenile justice system for Disturbing Schools than for any other reason.

The plaintiffs seek to represent a Class consisting of public school students in South Carolina who face risk of arrest or referral under the statutes at issue.

They are seeking a declaratory judgment stating that the Disturbing Schools statute violates their constitutional right to due process. They seek preliminary and permanent injunctions barring defendants from enforcing the statute.

They also seek injunctive relief that would bar defendants from considering any plaintiff’s records pertaining to detention or criminal processing under the statute, and from retaining such records except in accordance with current law pertaining to expungement.

The plaintiffs are represented by attorneys Susan K. Dunn of the ACLU Foundation of South Carolina and by Sarah Hinger, Galen Sherwin, Dennis D. Parker and Lenora Lapidus of the ACLU Foundation.

The South Carolina Disturbing Schools Statute Civil Rights Class Action Lawsuit is Niya Kenny, et al. v. Alan Wilson, et al., Case No. 2:16-cv-2794, in the U.S. District Court for the District of South Carolina, Charleston Division.