From After-School Detention to the Detention Center: How Unconstitutional School-Disruption Laws Place Children at Risk of Prosecution for 'Speech Crimes'

69 Pages Posted: 15 Aug 2021

Date Written: January 1, 2021

Abstract

As unrest erupts across the country over issues of police violence and race, how and when police use their authority inside schools is receiving renewed, and overdue, scrutiny. Students of color are uniquely at risk of overzealous arrest as a result of a confluence of dangerous factors: Young people are constantly surveilled throughout the school day, constitutional search-and-seizure protections are diminished, and police have the benefit of not just the criminal laws that would apply in the “real world,” but a host of vague and subjective “speech crimes” for which they can justify detention, search and arrest.

This Article focuses on the most subjective of all school-based offenses: “Disruption.” Using the vehicle of a recent Kentucky appellate case dismissing a First Amendment challenge to an especially open-ended “school disruption” statute (which the U.S. Supreme Court regrettably refused to review), the Article traces how these statutes have been used to turn what was previously grounds for (at worst) a suspension into a basis for arrest, prosecution and jailing. The focus of the Article is on the constitutional infirmity of Kentucky’s statute and many of the other 25 school-disruption statutes across the country. This Article is the first to give a granular examination of the constitutional weaknesses of these statutes up against the body of First Amendment precedent, starting with the Supreme Court’s Tinker standard, that forecloses content-based punishment for speech unless it “substantially” disrupts school. Remarkably, the authors find, Kentucky and a number of other states have statutes that expose students to criminal penalties based on a threshold lower than what the First Amendment would require to validate even a minor disciplinary sanction.

Although the Supreme Court missed in chance in Masters v. Kentucky to set clear boundaries for when nonviolent “speech crimes” can be grounds for arrest, another vehicle may be on the way. The nationally publicized case of South Carolina teen Niya Kenny, arrested on “disruption” charges while shooting smartphone footage of the brutal police takedown of a Black classmate, is making its way through the federal courts. The authors conclude that Supreme Court clarification is desperately needed to curb the potential that vague, overbroad laws will be applied subjectively against students of color and those voicing contrarian criticism of their schools. Clarification is especially overdue, the authors urge, at a time of renewed youth activism, as young people engage in marches and other acts of peaceful political expression that, under the worst state “disruption” statutes, could constitute grounds for arrest.

Keywords: First Amendment, student rights, education law, school to prison pipeline, school discipline

Suggested Citation

LoMonte, Frank and Tamburro, Ann Marie, From After-School Detention to the Detention Center: How Unconstitutional School-Disruption Laws Place Children at Risk of Prosecution for 'Speech Crimes' (January 1, 2021). Lewis & Clark Law Review, Vol. 25, No. 1, 2021, Available at SSRN: https://ssrn.com/abstract=3884557

Frank LoMonte (Contact Author)

University of Florida ( email )

HOME PAGE: http://www.brechner.org

Ann Marie Tamburro

Independent

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