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

Authors

Frank LoMonte, University of Florida
Ann Marie Tamburro

Author Details

Ann Marie Tamburro, J.D. Candidate 2021, University of Florida Levin College of Law.

First Page

1

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 scrutiny. Students of color are uniquely at risk of being subject to 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 declined to review), this 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 this Article is on the constitutional infirmity of Kentucky’s statute and similar school-disruption statutes across the country. 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 under the well-established Tinker standard.

Although the Supreme Court missed a 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 at a time of renewed youth activism, as young people engage in peaceful political protests that, under the most extreme state “disruption” statutes, could constitute grounds for arrest.

Recommended Citation

Frank LoMonte & Ann M. Tamburro, From After-School Detention to the Detention Center: How Unconstitutional School-Disruption Laws Place Children at Risk of Prosecution for “Speech Crimes”, 25 Lewis & Clark L. Rev. 1 (2021).
Available at: https://lawcommons.lclark.edu/lclr/vol25/iss1/3