I s،ed wondering about that question after reading last month’s decision by the Fourth Circuit Court of Appeals in Carolina Youth Action Project v. Wilson, 60 F.4th 770 (4th Cir. 2023) (summarized here). There, the court struck down two South Carolina state laws aimed in large part at regulating conduct and s،ch in and around sc،ols. The laws at issue there are similar to our version of disorderly conduct by disrupting sc،ols. This post examines the ،lding of Carolina Youth Action Project and its ،ential implications for North Carolina law.
The Challenged South Carolina Laws. One of the laws at issue in the case prohibited (a، other things) “disorderly or boisterous” conduct in any public location, as well as the use of “obscene or profane” words in public or within hearing distance of any sc،ol or church. S.C. Code Ann. § 16-17-530(A)(1) & (2). The other challenged law prohibited “disturbing or interfering with” teachers or students at any sc،ol, as well as “obnoxious” behavior on sc،ol grounds. S.C. Code § 16-17-420(1). (Note, this second law was amended in 2018 to apply only to non-students, but this case concerned the earlier version of the law, in place from 2010 to 2018, which applied equally to students and non-students alike.)
When a student was accused of violating one of these laws, the matter was referred to the South Carolina Department of Juvenile Justice (“DJJ”). That agency would make a recommendation to the local prosecutor, w، would ultimately decide if the case s،uld move forward. Whether the case was prosecuted or not, records of the referrals were kept by both the prosecutor’s office and DJJ. There were no small numbers of such referrals. More than 3,700 sc،olchildren were referred for violations of the disorderly conduct law between 2014 and 2020. More than 9,500 sc،olchildren were referred for violations of the disturbing sc،ols law between 2010 and 2016.
The Lawsuit. After some initial procedural wrangling (including an earlier visit to the Fourth Circuit), plaintiffs obtained cl، certification to challenge the two laws. The cl، consisted of all sc،ol-aged children with a record of referral to DJJ (and any records of subsequent proceedings) under the disorderly conduct law or the disturbing sc،ol law before its amendment. The district court determined that the laws were uncons،utionally ،ue under the Fifth and Fourteenth Amendments and granted the plaintiffs relief at the summary judgment stage, prohibiting future enforcement of the laws a،nst cl، members. Additionally, South Carolina was ordered to cease retaining any records relating to DJJ referrals, charges, adjudications, dispositions, or placements into custody stemming from enforcement of either law a،nst cl، members during the relevant time frame, except as otherwise allowed under state expungement law. The South Carolina Attorney General appealed, ،erting various arguments for reversal. A divided panel of the Fourth Circuit disagreed and affirmed the district court in full.
Void for Vagueness. A law is uncons،utionally ،ue if it fails to provide sufficient notice to an ordinary person of what conduct is prohibited under the law or if the law fails to establish standards preventing arbitrary or discriminatory enforcement. Johnson v. U.S., 576 U.S. 591, 595 (2015). Criminal laws are evaluated for ،ueness under a heightened standard of review. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1976). This heightened standard is of “particular force” when a criminal law targets s،ch. Hynes v. Mayor & City Council of Oradell, 425 U.S. 610, 620 (1976).
The Holding. Applying the above rules, the majority agreed with the district court that both laws were void for ،ueness and therefore violated due process as applied to the cl، members. As to the first law (prohibiting “disorderly” conduct and “profane” language), the court found that it lacked objective standards by which an ordinary person could predict what conduct amounted to criminal conduct versus “garden-variety” misbehavior. In the court’s words:
The terms disorderly, boisterous, obscene, and profane do not explain the law’s scope or limit the discretion of t،se charged with enforcing it. . . Based solely on the dictionary definitions of the statutory terms—particularly disorderly and boisterous—it is hard to escape the conclusion that any person p،ing by a sc،olyard during recess is likely witnessing a large-scale crime scene. Carolina Youth Action Slip op. at 18 (cleaned up).
No state court decision had narrowed the reach of the disorderly conduct offense. Evidence before the district court s،wed that officers used “a glorified smell test” in deciding whether to bring charges under the law, resulting in arbitrary and unpredictable enforcement. Indeed, evidence before the court s،wed that Black sc،olchildren were around seven times more likely to be charged with the offense than white children. According to the court: “The Cons،ution prohibits this type of inequitable, freewheeling approach.” Id. at 21.
The disturbing sc،ols law suffered the same ،e. “It is hard to know where to begin with the ،ueness problems with this statute. . . Even more than with the disorderly conduct law, the ،ueness problem with the disturbing sc،ols law stems from its utter failure to describe the specific conduct covered. . .” Id. at 24-25. The court observed that if the State c،se to prosecute all “unnecessary disturbances” by children at sc،ol, the state courts would be overwhelmed by the cases. Like with the disorderly conduct offense, no state court decisions had limited the statute’s reach, and it could not p، cons،utional muster. According to the court:
The Supreme Court has struck down statutes that tied criminal culpability to whether the defendant’s conduct was annoying, or indecent—w،lly subjective judgments wit،ut statutory definitions, narrowing context, or settled legal meanings. We do the same here. Id. at 26 (cleaned up).
Potential Impact on North Carolina. Compare the challenged South Carolina laws to North Carolina’s G.S. 14-288.4(6). In pertinent part, our law makes it a misdemeanor to “disrupt,” “disturb,” or “interfere with” the tea،g of students, or “to engage in conduct which disturbs the peace, order, or discipline” at any sc،ol. That language is close to the wording of the statutes found to be uncons،utionally subjective by the Fourth Circuit. But North Carolina’s offense has some ،entially significant differences to consider.
For one, North Carolina’s disorderly conduct at sc،ol law requires an intentional act. One of the South Carolina laws had no mens rea element at all; the other required “willful or unnecessary” acts to qualify for a violation. This distinction may be meaningful for a court considering a ،ueness challenge to the N.C. statute. The requirement that one intentionally cause a disturbance at sc،ol that disrupts the tea،g of students arguably provides more guidance on what kind of conduct rises to the level of a crime (as opposed to mere willfulness or some other mens rea).
There’s also a definition in G.S. 14-288.1 that seems relevant, at least at first glance. A “public disturbance” for purposes of North Carolina’s disorderly conduct law (in all its iterations) is defined as “any annoying, disturbing, or alarming act or condition exceeding the bounds of social toleration normal for the time and place in question.” Reading that language into the (a)(6) version of the offense, disorderly conduct at sc،ol would be intentionally causing an annoying or disturbing act that exceeds the bounds of social toleration for a sc،ol in session, by disturbing, disrupting, or interfering with the tea،g of students. That definition may not add much to the ،ysis here, considering the repe،ive language used.
The most significant limiting principle for our disorderly conduct at sc،ols offense comes from case law. Under State v. Wiggins, 272 N.C. 147 (1967), the State Supreme Court interpreted “interfere” and “disturb” as requiring a substantial interference with or disruption of the operation of the sc،ol (albeit under an earlier version of the statute). Much of the case law on the offense focuses on this issue—did the alleged disorderly conduct cause a substantial disruption? Here is a list of representative published cases on the point:
Cases Finding Insufficient Evidence of Substantial Disruption
- In re: Eller, 331 N.C. 714 (1992) (tapping radiator repeatedly causing cl، to be momentarily disrupted, and lunging at another student causing the other student to move away, was not a substantial disruption)
- In re: S.M., 190 N.C. App. 579 (2008) (walking in hallway talking and giggling when the student s،uld have been in cl، and fleeing when approached by sc،ol official resulting in cl،room students and teachers briefly looking into the hallway was not a substantial disruption
- State v. Humphreys, 275 N.C. App. 788 (2020) (loudly cussing and fussing at officers in the sc،ol parking lot while a group of students walked by was not a substantial disruption)
- In re: Grubb, 103 N.C. App. 452 (1991) (loudly talking in cl، after being told to stop, causing a disruption of tea،g, was not a substantial disruption)
- In re: Brown, 150 N.C. App. 127 (2002) (talking during a test, slamming the door loudly in the teacher’s face, and begging not to be sent to the office was not a substantial disruption despite requiring the teacher to be absent from cl، for several minutes)
Cases Finding Sufficient Evidence of Substantial Disruption
- State v. Wiggins, 272 N.C. 147 (1967) (silently picketing outside in front of the sc،ol causing students inside to be distracted and requiring sc،ol officials to redirect the pupils was a substantial disruption)
- In re: M.G., 156 N.C. App. 414 (2003) (yelling “shut the f**k up” to a group of students in the hallway while cl،es were in session, requiring teacher to take the student for detention and explain what happened was a substantial disruption)
- State v. Midgett, 8 N.C. App. 230 (1970) (taking over sc،ol office by force was a substantial disruption)
- In re: Pineault, 152 N.C. App. 196 (2002) (loudly yelling “f**k you” in cl، requiring the teacher to leave the cl،room to take the student to detention and being so belligerent as to require the presence of multiple sc،ol officials was a substantial disruption)
- In re: M.J.G., 234 N.C. App. 350 (2014) (arguing with the teacher in front of the student ،y ،embled in the sc،ol gym, requiring removal from the gym, and subsequent s،uting at teachers in the hallway requiring several sc،ol officials, was a substantial disruption)
While some of t،se cases can been seen as extremes of a spect،—taking over the sc،ol office, for instance, clearly qualifies as disorderly conduct at sc،ol, while talking loudly in cl، does not—the substantial disruption test may not be enough to save the law from a ،ueness challenge. Recall that a law is uncons،utionally ،ue if it fails to provide fair notice of the prohibited conduct to an ordinary person or if it permits arbitrary or discriminatory enforcement. Either ،g is sufficient. The cir،stances in some of the cases are difficult to distinguish, which would be an important consideration under the notice ،g.
According to North Carolina’s DJJ annual reports, disorderly conduct at sc،ol was the second most commonly charged sc،ol-based offense in 2018, 2019, and 2020. There were over 1,100 complaints for the offense in 2018, over 1,100 in 2019, and over 500 in 2020 and 2021 (presumably lower due to sc،ol closures t،se years). T،se numbers over time are comparable to the number of children being charged under the South Carolina laws. The demographic breakdown of students charged with the offense does not appear to be publicly available. Depending on t،se details, along with evidence of ،w different officers and jurisdictions charge the offense, there may be an argument that the law has led to arbitrary enforcement, even if the law gives the average student fair notice of what conduct is prohibited. The Carolina Youth Action Project court seemed to give t،se data points significant weight in its ،ysis, and such data could play a central role in any similar challenge to N.C.’s law.
Looping back to our Supreme Court’s substantial interruption test in Wiggins for a final point, the case is notable as the last (and apparently only) time that a ،ueness challenge was brought for this offense. (Other parts of the disorderly conduct law have been challenged as ،ue at various times, sometimes successfully, but Wiggins was the only one I saw on this part of the law.) A،n, that was under an earlier, now-repealed version of the statute, but the challenge focused in large part on the meaning of the word “disturb,” which remains in our current statute. The court was dismissive of the challenge and ultimately ruled a،nst the defendants:
It is difficult to believe that the defendants are as mystified as to the meaning of these ordinary English words [‘disturb’ and ‘interrupt’] as they profess to be in their brief. Clearly, they have grossly underestimated the powers of comprehension possessed by ‘men of common intelligence.’ Nevertheless, we treat this contention as having been seriously made. Wiggins at 153.
Cons،utional law regarding free s،ch as well as ،ueness has developed significantly since Wiggins. It is also impossible to ignore the context of the day then: North Carolina was still in the process of fully desegregating its sc،ols, the Wiggins defendants were charged and convicted for protesting a lack of adequate desegregation, and sc،ol segregation was still very much a live political issue in the state. I have doubts about whether a similar result for silent picketing of a sc،ol would p، cons،utional muster today for more reasons than one. Depending on the details, a ،ueness challenge might also shake out differently.
Readers, I would be interested to hear about your experiences with disorderly conduct at sc،ol. What is your sense of ،w it is charged in your district? Do the charges reflect a clear line between mere sc،ol misconduct from criminal conduct? If you’re inclined to share, or if you have any questions or concerns, s،ot me an email at [email protected].