As they are ordinarily understood, the terms used in South Carolina’s disorderly conduct statute – “disorderly,” “boisterous,” “obscene,” and “profane” – make it hard to escape the conclusion that any person passing a schoolyard during recess is likely witnessing a large-scale crime scene. The pre-2018 version of South Carolina’s disturbing schools statute’s prohibition of obnoxious conduct is similarly problematic. These statutes are unconstitutionally vague.
We affirm the district court’s (1) holding that both laws were unconstitutionally vague as applied to elementary and secondary school students and (2) permanent injunction barring retention of the records of plaintiff class members relating to being taken into custody, charges filed, adjudication or disposition under the statutes, except as would be permissible following expungement.
In pertinent part, South Carolina’s disorderly conduct statute, S.C. Code Ann. § 16-17-531(A), makes it a misdemeanor to “conduct [one]self in a disorderly or boisterous manner” “at any public place” or “use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church.”
The “disturbing schools” statute, S.C. § 16-17-420(1), makes it a misdemeanor “for any person 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 . . . .” This statute was amended in 2018; it no longer applies to students.
In this class action, three named plaintiffs were subjected to enforcement of these laws while they were secondary school students, as thousands of other South Carolina students have been over the past decade. We agree with the district court that the statutes are/were unconstitutionally vague as applied to elementary and secondary school students. Given that a delinquency adjudication under South Carolina law may impair a minor’s future practice of law, application for military service, use of a driver’s license, and educational opportunities, we also agree with the district court’s injunction barring defendants “from retaining the records of the” members of each subclass “relating to being taken into custody, charges filed, adjudication, or disposition” under either the disorderly conduct or disturbing schools laws, “except as would be permissible following expungement under S.C. Code Ann. § 17-1-40.”
While, as the appellant Attorney General argues, the challenged statutes are not impermissibly vague in all their applications, the U.S. Supreme Court’s holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp.” Johnson v. United States, 576 U.S. 591 (2015).
A reading of the disorderly conduct statute, above, leads naturally to a question: How does this statute objectively distinguish criminally disorderly, boisterous, obscene, or profane child misbehavior? The Attorney General offers no satisfying answer, nor can we discern one for ourselves.
The terms “disorderly,” “boisterous,” “obscene,” and “profane” do not explain the law’s scope or limit the discretion of those charged with enforcing it. The Attorney General does not identify any narrowing state court interpretation that fixes the problem.
Unless South Carolina intended to criminalize many childish shenanigans (a position the Attorney General does not advance), the vagueness that dooms the disorderly conduct law is not uncertainty about the normal meaning of the law’s terms but what acts of adolescent mischief are covered by the law and what are not.
While law enforcement officials routinely consider the totality of the circumstances in assessing whether a person in fact did something that violates the law such as stealing or selling drugs, we are unaware of any crime requiring a multifactored balancing test to determine whether a thing a person undisputedly did is unlawful in the first place.
The disorderly conduct law fails to give South Carolina’s schoolchildren fair warning about what it prohibits and vests practically unfettered discretion in those charged with its enforcement. We thus agree with the district court that the portions of that law prohibiting disorderly, boisterous, obscene, or profane language within earshot of a school are unconstitutionally vague as applied to elementary and secondary school students.
As it stood before 2018, the disturbing schools law also fails constitutional scrutiny. Even more than with the disorderly conduct law, the vagueness problem with the disturbing schools law stems from its utter failure to describe the specific conduct covered by the statute. Nor have South Carolina’s courts provided a limiting construction.
With respect to the permanent injunction, the Supreme Court has affirmed class-wide expungement relief where records were obtained in violation of the constitution, Goss v. Lopez, 419 U.S. 565 (1975), and courts throughout the nation have followed its lead. Here, plaintiffs sought relief from forward-looking use of records generated from the enforcement of impermissibly vague laws. The district court acted within its discretion in determining such relief was warranted to prevent additional harm from already completed constitutional violations.
(Niemeyer, J.) Respectfully, I would reverse. In particular, I would conclude that no named plaintiff has standing with respect to either statute to pursue the expungement remedy. This is because the availability of this relief turns on how the statutes were previously applied. And because the laws were not vague as applied to those plaintiffs, they lack standing to bring a facial vagueness challenge.
Further, while I acknowledge that the plaintiffs have standing to seek injunctive relief with respect to the prospective enforcement of the disorderly conduct statute, I would uphold the constitutionality of that statute on the merits.
Carolina Youth Action Project v. Wilson (Lawyers Weekly No. 001-025-23, 40 pp.) (Toby Heytens, J.) (Paul Niemeyer, J., dissenting) No. 21-2166. Appealed from USDC at Charleston, S.C. (Margaret Seymour, S.J.) James Emory Smith, Alan Wilson, Robert Cook and Thomas Hydrick for appellant; Sarah Hinger, Galen Sherwin and Allen Chaney for appellees; Aleksandra Chauhan, Lauren Bonds, Eliana Machefsky, Keisha James, Trisha Pande, Sabrina Bernadel, Hunter Iannucci, Sunu Chandy, Emily Martin, Janette Louard, Victor Goode, Anna Kathryn Barnes, Michael Harris, Luke Fernbach, Courtney Dankworth, Adrian Gonzalez and Dominique Jones for amici curiae. 4th Cir.