USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 1 of 40

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2166

CAROLINA YOUTH ACTION PROJECT; D.S., by and through her next of kin Juanita Ford, on behalf of herself and all others similarly situated; S.P., by and through her next of kin Melissa Downs, on behalf of herself and all others similarly situated Plaintiffs – Appellees,

and

NIYA KENNY, on behalf of herself and all others similarly situated; TAUREAN NESMITH, on behalf of himself and all others similarly situated

Plaintiffs,

v.

ALAN WILSON, in his official capacity as Attorney General of South Carolina

Defendant – Appellant,

and

J. ALTON CANNON, JR., in his official capacity as the Sheriff of Charleston County, SC; on behalf of himself and others similarly situated; LUTHER T. REYNOLDS, in his official capacity as the Chief of the Police Department of the City of Charleston, SC; REGINALD L. BURGESS, in his official capacity as the Chief of the Police Department of the City of North Charleston, SC; CARL RITCHIE, in his official capacity as the Chief of the Police Department of the City of Mt. Pleasant, SC; on behalf of himself and others similarly situated; LEON LOTT, in his official capacity as the Sheriff of Richland County, SC; on behalf of himself and others similarly situated; W. H. HOLBROOK, in his official capacity as the Chief of the Police Department of the City of Columbia, SC; on behalf of himself and others similarly situated; JOHNNY MACK BROWN, in his official capacity as the Interim Sheriff of Greenville County, SC; KEN MILLER, in his official capacity as the Chief of the Police Department of the City of Greenville, USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 2 of 40

SC; on behalf of himself and others similarly situated; LANCE CROWE, in his official capacity as the Chief of the Police Department of the City of Travelers Rest, SC; on behalf of himself and others similarly situated; STEVE MOORE, in his official capacity as Interim Chief of the Police Department of the City of Simpsonville, SC; on behalf of himself and others similarly situated; M. BRYAN TURNER, in his official capacity as the Chief of the Police Department of the City of Mauldin, SC; on behalf of himself and others similarly situated; DAN REYNOLDS, in his official capacity as the Chief of the Police Department of the City of Greer, SC; on behalf of himself and others similarly situated; A. KEITH MORTON, in his official capacity as the Chief of the Police Department of the City of Fountain Inn, SC; on behalf of himself and others similarly situated; MICHAEL D. HANSHAW, in his official capacity as Interim Chief of the Police Department of the City of Simpsonville, SC

Defendants.

------------------------------

JUVENILE DEFENDER ADVOCATE; NATIONAL POLICE ACCOUNTABILITY PROJECT; NATIONAL WOMEN'S LAW CENTER, NAACP, NATIONAL DISABILITY RIGHTS NETWORK, NATIONAL CENTER FOR YOUTH LAW, ADVANCEMENT PROJECT NATIONAL OFFICE, ANTI-DEFAMATION LEAGUE, ATLANTA WOMEN FOR EQUALITY, BAZELTON CENTER FOR MENTAL HEALTH LAW, BIRNBAUM WOMEN'S LEADERSHIP NETWORK AT NYU SCHOOL OF LAW, CENTRAL CONFERENCE OF AMERICAN RABBIS, CHICAGO FOUNDATION FOR WOMEN, DISABILITY RIGHTS ADVOCATES, FAMILY EQUALITY, GEORGETOWN LAW - CENTER ON POVERTY AND INEQUALITY'S INITIATIVE ON GENDER JUSTICE & OPPORTUNITY, LAWYERS CLUB OF SAN DIEGO, LEGAL AID AT WORK, MEN OF REFORM JUDAISM, NASW, NATIONAL NETWORK TO END DOMESTIC VIOLENCE, THE WOMENS LAW CENTER OF MARYLAND, INCORPORATED, UNION FOR REFORM JUDAISM, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, WOMEN LAWYERS ON GUARD INC., WOMEN OF REFORM JUDAISM, WOMEN'S BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA, WOMEN'S BAR ASSOCIATION OF THE STATE OF NEW YORK AND WOMEN'S LAW PROJECT

Amici Supporting Appellees.

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Appeal from the United States District Court for the District of South Carolina, at Charleston. Margaret B. Seymour, Senior District Judge. (2:16-cv-02794-MBS)

Argued: October 25, 2022 Decided: February 22, 2023

Before NIEMEYER, HARRIS, and HEYTENS, Circuit Judges.

Affirmed by published opinion. Judge Heytens wrote the opinion, in which Judge Harris joined. Judge Niemeyer wrote a dissenting opinion.

ARGUED: James Emory Smith, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellant. Sarah Hinger, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees. ON BRIEF: Alan Wilson, Attorney General, Robert D. Cook, Solicitor General, Thomas T. Hydrick, Assistant Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellant. Galen Sherwin, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Allen Chaney, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. Aleksandra Chauhan, Juvenile Defender Advocate, SOUTH CAROLINA COMMISSION ON INDIGENT DEFENSE, Columbia, South Carolina, for Amicus Juvenile Defender Advocate. Lauren Bonds, Eliana Machefsky, Keisha James, NATIONAL POLICE ACCOUNTABILITY PROJECT, New Orleans, Louisiana; Trisha Pande, PATTERSON HARKAVY LLP, Chapel Hill, North Carolina, for Amicus National Police Accountability Project. Sabrina Bernadel, Hunter Iannucci, Sunu Chandy, Emily Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C.; Janette Louard, Victor Goode, Anna Kathryn Barnes, Office of the General Counsel, NAACP, Baltimore, Maryland; Michael Harris, Luke Fernbach, NATIONAL CENTER FOR YOUTH LAW, Oakland, California; Courtney M. Dankworth, Adrian Gonzalez, Dominique Jones, DEBEVOISE & PLIMPTON LLP, New York, New York, for Amici National Women’s Law Center, The National Association for the Advancement of Colored People, National Disability Rights Network, National Center for Youth Law, and Additional Advocacy Organizations.

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TOBY HEYTENS, Circuit Judge:

South Carolina law makes it a crime for elementary and secondary school students

to act “disorderly” or in a “boisterous manner”; use “obscene or profane language”; or

“interfere with,” “loiter about,” or “act in an obnoxious manner” in (or sometimes near) a

school. Our primary question is whether the challenged laws give students fair warning

about what expressive behaviors may expose them to criminal penalties and contain

sufficient guardrails to prevent arbitrary or discriminatory enforcement. Like the district

court, we hold the answer is no.

I.

A.

This case involves challenges to two provisions of the South Carolina Code. The

first is known as the disorderly conduct law. As relevant here, that law 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.”

-

530(A)(1) & (2). 1

The second provision is known as the disturbing schools law. During the relevant

time, that provision made it a misdemeanor:

1 The same statute also makes it unlawful to be “found on any highway or at any public place or public gathering in a grossly intoxicated condition” or to “discharge[] any gun, pistol, or other firearm while upon or within fifty yards of any public road or highway” “while under the influence or feigning to be under the influence of intoxicating liquor.”

(A)(1) & (3). Those provisions are not challenged here.

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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 . . . .

S.C. Code § 16-17-420(1) (effective June 2, 2010 to May 16, 2018). 2

Neither law represents an empty threat. Indeed, the enthusiasm with which one

South Carolina school district referred its students for criminal charges prompted the local

prosecutor to plead for more disciplinary issues to be resolved internally. The raw numbers

tell a similar story. During a 6-year period ending in July 2020, there were 3,735 referrals

of people between the ages of 8 and 18 for prosecution under the disorderly conduct law

for “school-related” incidents. JA 657. The disturbing schools law was even more widely

deployed. During a period of less than 6 years ending in March 2016, more than 9,500

students were referred for prosecution—including children as young as 7 years old.

Not all referrals result in a student being charged or adjudicated delinquent.

Referrals generally go first to the South Carolina Department of Juvenile Justice, which

makes a recommendation to the local prosecutor’s office. If the prosecutor chooses to go

2 In 2018, the disturbing schools law was amended to apply only to non-students. See Act 182, 2018 S.C. Acts (effective date May 17, 2018). This suit was filed before the 2018 amendment, and only the pre-2018 law is at issue in this appeal. For ease of reference, we will refer to the pre-2018 statute as “the disturbing schools law.” No party asserts the post-filing modification to the disturbing schools law creates a mootness problem, and we see none. As explained below, the only relief plaintiffs sought involving that law was an injunction against use of records generated before the 2018 changes. That controversy—which involves future use of existing records—remains very much alive. See Act 182 (providing that “all laws . . . amended by this act must be taken and treated as remaining in full force and effect for . . . the enforcement of . . . duties, penalties, forfeitures, and liabilities as they stood” before the repeal).

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forward, the case proceeds in family court. Even when charges are ultimately dismissed,

however, they continue to appear on a student’s record with the Department of Juvenile

Justice and the local prosecutor.

B.

In 2016, four students who had been referred or charged under the disorderly

conduct or disturbing schools laws, and a nonprofit organization that advocates for at-risk

youth, filed a putative class action challenging both laws as unconstitutionally vague. The

district court dismissed the case for lack of standing, but this Court vacated and remanded,

holding that at least three of the named plaintiffs adequately alleged a constitutionally

sufficient injury in fact. Kenny v. Wilson,

(4th Cir. 2018).

On remand, two of the original plaintiffs were voluntarily dismissed and a new

plaintiff was added. At this point, the plaintiffs are: (1) two of the people who this Court

held adequately alleged injury in fact (S.P. and D.S.); (2) a high school student charged

with violating the disturbing schools law for events alleged to have occurred at school when

he was in eighth grade (D.D.); and (3) the original organizational plaintiff.

After denying a motion to dismiss, the district court certified one main class and

two subclasses under Federal Rule of Civil Procedure 23(b)(2). The main class is

represented by the individual plaintiffs (S.P., D.S., and D.D.) and includes:

All elementary and secondary school students in South Carolina, each of whom faces a risk of . . . arrest or juvenile referral under the broad and overly vague terms of [the disorderly conduct law] while attending school.

JA 274–75. The first subclass consists of:

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All elementary and secondary school students in South Carolina for whom a record exists relating to being taken into custody, charges filed, adjudication, or disposition under [the disorderly conduct law].

JA 275. And the second subclass includes:

All elementary and secondary school students in South Carolina for whom a record exists relating to being taken into custody, charges filed, adjudication, or disposition under [the disturbing schools law] prior to May 17, 2018.

The district court later granted summary judgment for the plaintiffs. The court held

that both laws were unconstitutionally vague as applied to elementary and secondary

school students, and it permanently enjoined future enforcement of the disorderly conduct

law against those students. 3 The district court also “permanently enjoined” the 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

.” JA 947.

One of the named defendants—South Carolina’s Attorney General—appeals,

lodging multiple challenges to the district court’s rulings. We review the district court’s

decision to certify a class for abuse of discretion, its grant of summary judgment de novo,

and its decision to order injunctive relief for abuse of discretion. See Berry v. Schulman,

3 Plaintiffs did not seek an injunction against future enforcement of the disturbing schools law, which had been amended to apply only to non-students by the time of the district court’s judgment. See note 2, supra.

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(4th Cir. 2015) (class certification); Calloway v. Lokey,

(4th Cir. 2020) (summary judgment); eBay Inc. v. MercExchange, L.L.C.,

(2006) (injunctive relief).

II.

We begin by explaining why plaintiffs have standing and why we reject the Attorney

General’s efforts to import standing concepts into the class certification analysis.

A.

No lawsuit may proceed in federal court unless the party seeking relief has Article

III standing. Because “standing is not dispensed in gross,” “a plaintiff must demonstrate

standing for each claim [it] seeks to press and for each form of relief that is sought.” Town

of Chester v. Laroe Estates, Inc.,

(2017) (quotation marks omitted).

Article III standing has three elements. The plaintiff must have “suffered an injury

in fact that is concrete, particularized, and actual or imminent.” Thole v. U.S. Bank N.A.,

(2020). The plaintiff’s injury must have been “caused by the

defendant.”

And it must be “likely” the plaintiff’s injury will “be redressed by the

requested judicial relief.”

We conclude two of the named plaintiffs—S.P. and D.D.—between them have

standing to seek each form of relief requested in the current complaint and granted by the

district court. Accordingly, we need not consider whether the other plaintiffs have standing

or if their claims are otherwise justiciable. See Town of Chester,

(stating

that where “there are multiple plaintiffs,” “[a]t least one plaintiff must have standing to

seek each form of relief requested in the complaint”); Rumsfeld v. Forum for Acad. & Inst.

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Rights, Inc.,

, 52 n.2 (2006) (unnecessary to consider other plaintiffs once one

plaintiff has established standing to bring a particular claim). 4

During an earlier appeal, this Court held S.P. made “allegations . . . sufficient to

establish an injury in fact.” Kenny,

. Indeed, the Court determined S.P.

satisfied that requirement in two ways. First, S.P. had “a sufficiently imminent [future]

injury” by alleging she faced “a credible threat of prosecution” for conduct that “is

inevitable on school grounds.”

at 288–89, 291 (quotation marks omitted). Second, S.P.

had “an ongoing [present] injury” because she “plausibly allege[d]” the disorderly conduct

and disturbing schools laws “have a chilling effect on [her] free expression.”

,

289 n.3.

D.D. was not yet a plaintiff during the previous appeal. But we do not perceive—

and the Attorney General does not identify—any relevant difference between S.P.’s and

4 The Attorney General does not assert Article III requires that a single plaintiff have standing to seek every form of relief sought in the complaint, and we see no warrant for imposing such a requirement. Any such view would sit uncomfortably with Town of Chester, which states that “[i]f different parties raising a single issue seek different relief, then standing must be shown for each [form of relief].”

n.3. Nor are we aware of any authority for the proposition that Article III requires a single “master plaintiff” with standing to seek every form of requested relief rather than at least one plaintiff with standing to seek each form of relief. Cf. J.D. v. Azar,

(D.C. Cir. 2019) (“The irreducible constitutional minimum of Article III . . . is [a]t least one plaintiff—and only one plaintiff—with standing to seek each form of relief requested in the complaint.” (quotation marks and citations omitted)); Wilding v. DNC Servs. Corp.,

(11th Cir. 2019) (“[O]nly one named plaintiff for each proposed class needs to have standing for a particular claim to advance.”); Brackeen v. Haaland,

(5th Cir. 2021) (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement, and we therefore need conclude only that one plaintiff in the present case satisfies standing with respect to each claim.” (quotation marks omitted)), cert. granted sub nom. Nation v. Brackeen,

(2022).

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D.D.’s allegations supporting standing. Nor does the Attorney General assert that S.P. and

D.D. failed to back up their allegations “with the manner and degree of evidence required

at the successive stages of the litigation.” Lujan v. Defenders of Wildlife,

(1992).

The second and third standing requirements—causation and redressability—are also

satisfied. The threat of future prosecution, the present chill of constitutionally protected

expression, and the lingering effects of having been referred or charged (S.P. under the

disorderly conduct law and D.D. under the disturbing schools law) are directly caused by

the challenged laws. In addition, each of those harms is likely to be lessened by injunctions

barring the future enforcement of the disorderly conduct law against students and

prohibiting government officials from making further use of past referrals or charges.

B.

The Attorney General does not directly assert plaintiffs lack standing. At the same

time, many of the Attorney General’s arguments about why the district court abused its

discretion in certifying the three classes represent efforts to import justiciability concepts

into the class certification analysis.

For example, the Attorney General insists that “[t]he vast majority” of South

Carolina’s nearly 800,000 elementary and secondary school students “never have been

charged under either” the disorderly conduct or disturbing schools laws, “nor will they be

concerned that they might be charged in the future.” A.G. Br. 50. The Attorney General

also suggests “many students . . . may prefer that the laws be enforced.” Id. at 49.

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To be sure, if the class representatives fell within the purported “majority” the

Attorney General describes, there would be no justiciable case or controversy. People

without their own government records lack standing to ask that other people’s records not

be used. See Kenny,

n.2 (“one plaintiff does not have standing to request

that another plaintiff’s records be expunged”). Even those who have suffered a past harm—

including a referral or charge—cannot seek injunctive relief against future referrals or

charges unless a recurrence is likely. See, e.g., City of Los Angeles v. Lyons,

,

105–10 (1983). And at least at some point, lack of disagreement between the parties about

what should happen in the real world would prevent “sufficient concrete adversity . . . to

satisfy Article III.” Clarke v. Securities Indus. Ass’n,

, 397 n.12 (1987).

But none of that has anything to do with class certification. “Once threshold

individual standing by the class representative is met, a proper party to raise a particular

issue is before the court [and] there is no further, separate ‘class action standing’

requirement.” 1 Newberg and Rubenstein on Class Actions § 2:1 (6th ed. 2022). Put

another way, “[i]f a class representative has standing” to seek equitable relief, “the case is

justiciable and the proponent of the class suit need not demonstrate that each class member

has standing” to obtain class certification. § 2.3 & n.15 (citing cases); accord Hyland v.

Navient Corp.,

, 118 & n.1 (2d Cir. 2022); Olean Wholesale Grocery Coop.,

Inc. v. Bumble Bee Foods LLC,

, 682 n.32 (9th Cir. 2022) (en banc). As we

have already explained, at least one class representative for the main class and both

subclasses has Article III standing to seek each form of equitable relief requested in the

complaint. Nothing more is required on that score.

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We also are unpersuaded by the Attorney General’s arguments that the main class

and two subclasses certified by the district court fail the commonality, adequacy, and

typicality requirements imposed by Federal Rule of Civil Procedure 23. This Court’s

“review of class certification issues is deferential, cognizant of both the considerable

advantages that our district court colleagues possess in managing complex litigation and

the need to afford them some latitude in bringing that expertise to bear.” Krakauer v. Dish

Network, L.L.C.,

(4th Cir. 2019).

Commonality requires an entire set of claims “depend upon a common contention”

that is “capable of classwide resolution.” Wal-Mart Stores, Inc. v. Dukes,

(2011). That standard is satisfied here. The common contention among members of

the main class is that the disorderly conduct law is unconstitutionally vague because it fails

to provide fair notice about what conduct is prohibited and invites discriminatory

enforcement. That contention is “capable of classwide resolution” because the

“determination of its truth or falsity will resolve an issue that is central to the validity of

each one of the” class members’ “claims in one stroke.”

Each of the subclasses likewise shares a question. By their terms, the subclasses are

limited to “elementary and secondary school students in South Carolina for whom a record

exists relating to being taken into custody, charges filed, adjudication, or disposition” under

the disorderly conduct law or the disturbing schools law. JA 275. The subclasses’ members

thus share the “same injury”—that is, the harms flowing from the existence of such records.

Wal-Mart,

(quotation marks omitted). What is more, a class action has

potential to generate “common answers”—including the permissibility of the type of

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injunctive relief sought by the plaintiffs and awarded by the district court.

(quotation

marks omitted).

The Attorney General also insists the class representatives’ claims are atypical

because each of the class representatives has been referred under or charged with violating

the disorderly conduct or disturbing schools law, even though the vast majority of class

members have never been charged under either statute. But the main class brings a pre-

enforcement challenge against future uses of the disorderly conduct law, and the class

representatives’ past charges do not bear on their typical experiences as students threatened

by future prosecution. The class representatives’ claims are especially typical of members

of the subclasses, whose members were all arrested, charged, or adjudicated under one of

the laws at issue.

The Attorney General fares no better in his passing suggestion that “the disparity in

the status of the individual Plaintiffs and most all of the class members prevents them from

‘adequately protect[ing] the interests of the class.’” A.G. Br. 51 (quoting Fed. R. Civ. P.

23(a)(4)). “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest

between named parties and the class they seek to represent.” Amchem Products, Inc. v.

Windsor,

(1997). The Attorney General identifies no such conflicts of

interest. If anything, the class representatives’ experiences with being charged under the

challenged statutes enhance their incentive to vigorously prosecute the class’s shared claim

that the disorderly conduct law cannot be fairly enforced against students. The Attorney

General points to no authority—nor do we see any rationale—for decertifying a class

because its representatives are more highly motivated than unnamed class members to

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advance their shared interests. We thus hold that the district court did not abuse its

discretion in certifying the main class and its two subclasses.

III.

Like the district court, we hold that both the disorderly conduct and disturbing

schools laws are unconstitutionally vague as applied to elementary and secondary school

students. See note 1, supra (identifying portions of the disorderly conduct law not

challenged in this litigation).

A.

The Fourteenth Amendment declares: “No State shall . . . deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. One

component of due process is the void-for-vagueness doctrine. That doctrine bars a State

from taking away life, liberty, or property under a law that fails to “give a person of

ordinary intelligence adequate notice of what conduct is prohibited” or lacks “sufficient

standards to prevent arbitrary and discriminatory enforcement.” Manning v. Caldwell for

City of Roanoke,

(4th Cir. 2019) (en banc).

Of course, nearly every law entails some ambiguity, and “[t]he degree of vagueness

tolerated . . . depends in part on the type of statute.” Manning,

. Because

“the ‘consequences of imprecision are qualitatively less severe,’” “[l]ess clarity is required

in purely civil statutes.”

(quoting Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc.,

(1982)). In contrast, laws imposing “criminal penalties” or

“threaten[ing] to inhibit the exercise of constitutionally protected rights” are subject to “a

stricter standard.” Hoffman Estates,

; Manning,

. The “test

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of vagueness applies with particular force in review of laws dealing with speech.” Hynes

v. Mayor & Council of Oradell,

(1976); accord Edgar v. Haines,

(4th Cir. 2021) (explaining the “twin concerns of inadequate notice and arbitrary

or discriminatory enforcement are especially pronounced when a regulation implicates

speech” (quotation marks omitted)).

The Attorney General offers three arguments for applying a more lenient vagueness

test here. We find each unpersuasive.

Citing Hoffman Estates and this Court’s decision in Martin v. Lloyd,

(4th Cir. 2012), the Attorney General asserts the challenged laws do not implicate “a

substantial amount of constitutionally protected conduct” and thus may not be declared

void for vagueness unless they are “impermissibly vague in all [their] applications.”

A.G. Br. 20 (quoting Martin,

). That argument misreads Martin, Hoffman

Estates, and the decisions since them. Martin emphasized that where a challenged statute

“imposes criminal penalties”—as these statutes do—“the standard of certainty is higher

and the statute can be invalidated on its face even where it could conceivably have . . .

some valid application.”

(quotation marks omitted). Hoffman Estates said

the “all of its applications” standard is limited to situations in which the challenged law

implicates “no constitutionally protected conduct” and it specifically distinguished

“[v]agueness challenges to statutes” that “involve First Amendment freedoms.”

& n.7 (emphasis added). Finally, the Supreme Court has now twice clarified that

“although statements in some of [its] opinions could be read to suggest otherwise,” the

Court’s “holdings squarely contradict the theory that a vague provision is constitutional

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merely because there is some conduct that clearly falls within the provision’s grasp.”

Johnson v. United States,

(2015); accord Sessions v. Dimaya,

, 1214 n.3 (2018).

Shifting gears, the Attorney General suggests the challenged laws do not implicate

any constitutionally protected conduct and more leeway is thus appropriate. This Court

already rejected the first step of that argument in our previous opinion in this very case. In

Kenny, this Court identified two bases for concluding the individual plaintiffs had alleged

a constitutionally sufficient injury, both of which turned on the notion that the challenged

statutes implicate “First Amendment rights” and “have a chilling effect on . . . free

expression.” Kenny,

n.3; see

at 289–90. That conclusion was necessary

to the Court’s holding in Kenny, and we see no warrant to depart from it here. 5

Finally, the Attorney General argues that plaintiffs’ attacks on both the disorderly

conduct and disturbing schools laws should be viewed as facial challenges and the district

court failed to treat those challenges with appropriate “disfavor.” A.G. Br. 19. We

acknowledge the persistent and muddy dispute about whether plaintiffs’ challenges are

properly described as facial, as applied, or both. In particular, the dichotomy between facial

and as-applied challenges does not map neatly onto plaintiffs’ claim that the disorderly

5 That these statutes implicate First Amendment protected conduct undermines the Attorney General’s reliance on Copeland v. Vance,

(2d Cir. 2018), which rejected a vagueness challenge to a New York law criminalizing possession of certain knives. As Copeland acknowledged, the “general principles” it applied “are more flexible in vagueness cases involving the First Amendment.”

at 111 n.2.

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conduct law is vague on its face when applied to the thousands of elementary and secondary

school students throughout South Carolina.

In the end, we conclude this quarrel is much ado about little. Beyond insisting that

facial challenges are “looked upon with disfavor” and that this fact represents “a further

constraint” on a court’s ability to find the challenged statutes facially unconstitutional,

A.G. Br. 18, the Attorney General does not contend that the answer to the facial versus as-

applied question changes the basic legal standard governing plaintiffs’ vagueness

challenge. Instead, the classification dictates the amount of caution with which we proceed

and how much we consider plaintiffs’ particular identity and circumstances. See White

Coat Waste Project v. Greater Richmond Transit Co.,

(4th Cir. 2022).

Mindful of both judicial restraint and the unique circumstances of students in a school

setting, we proceed.

B.

We begin with the disorderly conduct law, which, as relevant here, makes it a crime

to conduct oneself in a “disorderly” or “boisterous” manner or use “obscene” or “profane”

language within earshot of a school.

(A)(1)–(2).

1.

For those who have met—or been—elementary or secondary school students, a

question naturally arises: How does this statute objectively distinguish criminally

disorderly, boisterous, obscene, or profane childhood misbehavior from garden-variety

disorderly, boisterous, obscene, or profane childhood misbehavior? See Kenny,

(noting elementary and secondary school students “are in many ways disorderly or

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boisterous by nature”). The Attorney General offers no satisfying answer, nor can we

discern one for ourselves. See A.G. Reply Br. 13–14 (asserting “[t]he disorderly conduct

statute . . . is clearly intended to punish criminal conduct, not disciplinary infractions”);

Oral Arg. 8:55 (contending the statute requires “a criminal level of misbehavior”).

The terms “disorderly,” “boisterous,” “obscene,” and “profane” do not explain the

law’s scope or limit the discretion of those charged with enforcing it. “Disorder” is defined

by what it lacks—order. 6 “Boisterous” can simultaneously mean “noisily turbulent,”

“rowdy,” “marked by or expressive of exuberance and high spirits,” “stormy,” and

“tumultuous.” 7 “Obscene” and “profane” invite similarly subjective interpretations, with

definitions of the former including “abhorrent to morality and virtue” and “containing or

being language regarded as taboo in public usage” 8 and the latter encompassing “obscene,”

“vulgar,” and even “irreverent.” 9 Based solely on the dictionary definitions of the statutory

terms—particularly disorderly and boisterous—it is hard to escape the conclusion that any

person passing a schoolyard during recess is likely witnessing a large-scale crime scene.

6 See, e.g., Disorderly, Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/disorderly (last visited Jan. 5, 2023) (“1: engaged in conduct offensive to public order. 2: characterized by disorder”). 7 Boisterous, Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/boisterous (last visited Jan. 5, 2023). 8 Obscene, Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/obscene (last visited Jan. 5, 2023). 9 Profane, Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/profane (last visited Jan. 5, 2023).

18 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 19 of 40

The Attorney General does not identify any “narrowing state court interpretation”

that fixes the problem. Smith v. Goguen,

(1974). This Court’s decision

in Kenny already rejected the Attorney General’s reliance on City of Landrum v. Sarratt,

(S.C. Ct. App. 2002). In Kenny, the Court explained that while Sarratt

clarifies that “profane language alone cannot constitute a violation of the [disorderly

conduct] law,” “it says nothing at all about how to interpret other vague phrases in the

[d]isorderly [c]onduct [l]aw like ‘conducting [oneself] in a disorderly or boisterous

manner’ or even what conduct must accompany profane language for there to be a criminal

conviction.”

.

The South Carolina Supreme Court’s decision in State v. Perkins,

(1991), likewise does not cure the vagueness problems in the disorderly conduct law. In

Perkins, the court reversed a conviction for conduct that did not occur at school where the

record showed only that the defendants “became upset and raised their voices” while

visiting a sheriff’s office.

. The court determined that to save the disorderly

conduct law from being unconstitutionally overbroad, the law may not reach “spoken

words addressed to a police officer” unless the expression meets the constitutional test for

“fighting words.”

That decision, however, did not purport to construe—much less

narrow—the vague terms of the disorderly conduct law or explain what additional conduct

can violate it.

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

19 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 20 of 40

of adolescent mischief are “covered by the [law] and what [are] not.” City of Chicago v.

Morales,

(1999). Lacking any meaningful standards, the record confirms

that officers deploy a glorified smell test to determine whether a student’s disorder is

disorderly enough to be criminal. For example, one police officer testified arrest may be

appropriate if “someone is causing such a disturbance that it would cause me to look over

and see what’s going on,” but not if “someone [is] having a loud discussion with someone.”

JA 344.

When asked about this issue at oral argument, the Attorney General stated that law

enforcement officers must conduct a “totality of the circumstances” analysis to decide

whether the disorderly conduct law is violated. Oral Arg. 12:46–13:04. It is true that 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, selling drugs,

or the like. But we are unaware of any crime—nor could the Attorney General cite one—

requiring a multifactored balancing test to determine whether a thing a person undisputedly

did is unlawful in the first place. Oral Arg. 13:04–13:31; see United States v. Williams,

(2008) (“What renders a statute vague is not the possibility that it will

sometimes be difficult to determine whether the incriminating fact it establishes has been

proved; but rather the indeterminacy of precisely what that fact is.”).

The risk of arbitrary enforcement is emphasized and exacerbated by schools’ codes

of conduct, many of which similarly prohibit “disorderly conduct” or “obscene or profane

language” but punish such misbehavior with detention or verbal reprimands.

See, e.g., JA 635. As a result, a student’s profanity-laced tirade during lunch is likely to

20 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 21 of 40

violate both the disorderly conduct law and the school’s internal code of conduct, but

whether that student is scolded or arrested turns on the whims of a school resource officer.

Unsurprisingly, this unbridled discretion generates starkly disparate outcomes. Indeed,

evidence submitted to the district court shows that between 2015 and 2020, Black youth

were charged with disorderly conduct for incidents in schools at roughly seven times the

rate of their white peers. The Constitution prohibits this type of inequitable, freewheeling

approach. 10

2.

The Attorney General insists the disorderly conduct law is valid because several

incident reports “demonstrate[] criminal conduct” or “show fighting words.” A.G. Reply

Br. 1, 16. Relatedly, the Attorney General argues that S.P.’s challenge is foreclosed because

the behavior for which she was adjudicated delinquent was plainly covered by the

disorderly conduct law. Those arguments founder twice on the law and once on the facts.

First, as noted previously, the Supreme Court recently rejected (twice!) “the theory

that a vague provision is constitutional merely because there is some conduct that clearly

10 Although the Attorney General complains about the district court’s consideration of this statistic, he does not explain why it was improper for the court to do so. That this sort of evidence might also be relevant had plaintiffs brought an equal protection challenge does not mean it lacks value to confirm that the disorderly conduct law fails to give sufficient guidance to prevent discriminatory enforcement. Indeed, this Court has rejected vagueness challenges where plaintiffs failed to provide evidentiary support that a law encouraged discriminatory enforcement. See, e.g., Hardwick v. Heyward,

(4th Cir. 2013).

21 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 22 of 40

falls within the provision’s grasp.” Johnson,

; see Dimaya,

n.3.

Second, the Attorney General fails to distinguish between the two forms of relief

plaintiffs are seeking against the disorderly conduct law. True enough, we recently clarified

that a person defending against a current charge may not raise a vagueness defense if their

own behavior was unambiguously proscribed by the relevant law. See United States v.

Hasson,

, 618–22 (4th Cir. 2022). But that problem, if it exists, relates only to

S.P.’s request to enjoin further use of the record of her past referral under the disorderly

conduct law. It has nothing to do with S.P.’s and D.D.’s separate request for injunctive

relief against the disorderly conduct law’s future enforcement—which stems from the

“credible threat of prosecution” for conduct that “is inevitable on school grounds” and the

“chilling effect on their free expression” that threat creates. Kenny,

, 289

n.3, 291 (quotation marks omitted). 11

Finally, the facts of S.P.’s previous referral for violating the disorderly conduct law

do not foreclose her request to enjoin further use of the existing record. In 2015, S.P. was

a high school freshman dealing with a bully. After a difficult morning when she was

derided as fat, ugly, and manly, S.P. orally confronted her classmate before joining her

friends at a nearby table in the library. A librarian who witnessed the incident called the

principal, who in turn called the student resource officer after S.P. refused to leave. As the

11 The Attorney General’s argument about the facts of S.P.’s individual case also has nothing to do with D.D.’s request to enjoin further use of the record of his past referral under the disturbing schools law.

22 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 23 of 40

student resource officer was escorting S.P. out of the library, S.P. said “fuck you” to her

bully. JA 379. After several students started clapping and mocking her, S.P. stated “fuck

all of you.”

S.P. was charged with violating the disorderly conduct law. The solicitor

presenting the charge to family court said S.P. violated the disorderly conduct law because

she “was loud and used profanity when the administrator and school resource officer were

trying to talk with her.” JA 386.

Although we agree S.P. misbehaved, we do not agree her misbehavior

unambiguously fell within the bounds of a criminal disorder law. See Morales,

(loitering ordinance unconstitutional because it failed to clarify “what loitering is

covered by the ordinance and what is not”). S.P.’s outburst falls within the realm of

“abusive language between or among students, to include profane language” or “disruptive

acts which interfere with the educational process,” which would expose her to

consequences under a school’s disciplinary code. JA 635. But we cannot conclude S.P.’s

conduct unambiguously fell within the criminal disorderly conduct law’s grasp given that,

on a different day, a different school resource officer might well have concluded that her

misconduct justified only detention rather than prosecution. See Morales,

(Breyer, J., concurring) (“[I]f every application of [an] ordinance represents an exercise of

unlimited discretion, then the ordinance is invalid in all its applications.”). 12

12 Any contention that S.P.’s conduct was clearly proscribed by the disorderly conduct law is even weaker because her charge arose solely from spoken words. We are skeptical that S.P.’s statements “fuck you” and “fuck all of you” were fighting words under modern First Amendment doctrine. See United States v. Bartow,

(4th Cir. 2021) (noting that the Supreme Court “has so narrowed the ‘fighting words’ exception

23 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 24 of 40

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.

C.

We likewise agree with the district court that the disturbing schools law cannot

withstand constitutional scrutiny. During the relevant time, that law made it a crime to

“wilfully or unnecessarily” “interfere with or to disturb in any way or in any place the

students or teachers of any school or college in this State,” “to loiter about such school or

college premises,” or “to act in an obnoxious manner thereon.”

-

420(A)(1)(a)–(c); see note 2, supra.

It is hard to know where to begin with the vagueness problems with this statute. We

need not consult the dictionary to conclude that if South Carolina prosecuted all

unnecessary disturbances, loitering, or obnoxiousness in schools, judicial dockets would

be overrun by preteens. Even more than with the disorderly conduct law, the vagueness

that it has not upheld a criminal conviction under the doctrine since Chaplinsky [v. New Hampshire,

(1942)] itself.”). Our doubts are only enhanced because S.P.’s profanity was prompted by the intervention of the school resource officer, who is “expected to exercise a higher degree of restraint than the average citizen and should be less likely to be provoked into misbehavior by such speech.” Payne v. Pauley,

(7th Cir. 2003).

24 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 25 of 40

problem with the disturbing schools law stems from its utter failure to describe the specific

conduct covered by the statute.

The disturbing schools law’s application to conduct that is “willful[] or

unnecessar[y]” makes the problem worse, not better. Although “a scienter requirement may

mitigate a law’s vagueness,” Hoffman Estates,

, this statute speaks in the

disjunctive. As a result, prosecutors need never show willfulness (or purpose, knowledge,

intent, or any other culpable state of mind) so long as they can prove the offending conduct

was done “unnecessarily”—a word steeped in its own vagueness problems.

See Unnecessarily, Merriam-Webster Dictionary, https://www.merriam-webster.com/dict

ionary/unnecessarily (last visited Jan. 5, 2023) (“not by necessity: to an unnecessary

degree”).

Nor have South Carolina’s courts provided a limiting construction. As this Court

explained in its previous opinion, the primary decision on which the Attorney General

relies involved an overbreadth challenge and did not “consider the separate question of

whether the [disturbing schools law’s] prohibitions are unconstitutionally vague and allow

for arbitrary and discriminatory enforcement.” Kenny,

(discussing In re

Amir X.S.,

(S.C. 2006)). Kenny likewise explained why the disturbing

schools law compares unfavorably to the regulations at issue in the primary cases discussed

in Amir X.S.—specifically, Tinker v. Des Moines Independent Community School District,

(1969), and Grayned v. City of Rockford,

(1972). See Kenny,

885 F.3d at 290–91. Indeed, the ordinance in Grayned, the constitutionality of which was

a “close” question, included a scienter standard and express temporal and spatial

25 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 26 of 40

restrictions. 408 U.S. at 107, 109. The disturbing schools law lacks any analogous

clarifying features. Thus, its constitutionality is not nearly so close a question.

The Supreme Court has “struck down statutes that tied criminal culpability to

whether the defendant’s conduct was ‘annoying’ or ‘indecent’—wholly subjective

judgments without statutory definitions, narrowing context, or settled legal meanings.”

Williams,

. We do the same here.

IV.

We turn to the remedy. The Attorney General challenges the final portion of the

district court’s order, which “permanently enjoin[s]” the relevant government officials

“from retaining the records” of members of either subclass “relating to being taken into

custody, charges filed, adjudication, or disposition under” either the disorderly conduct or

disturbing schools law “except as would be permissible following expungement under

.” JA 947.

For a final time, we are unpersuaded. Despite questioning the district court’s

“authority” to order this sort of “class-wide expungement,” A.G. Br. 52, the Attorney

General cites no controlling precedent from the Supreme Court or this Court for his

objection and even the non-precedential authorities the Attorney General cites

acknowledge expungement is sometimes warranted. The Supreme Court has affirmed

class-wide expungement relief where records were obtained in violation of the

Constitution, see Goss v. Lopez,

(1975), and courts throughout the nation

have followed its lead, see Carolina Youth Br. 66 (collecting cases).

26 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 27 of 40

The district court committed no abuse of discretion here—not just because the

challenged laws are facially invalid as applied to elementary and secondary school students

but also because the subclasses demonstrated ongoing injury by the retention of existing

records. 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. 13 Having concluded the laws may not be constitutionally enforced against

South Carolina’s elementary and secondary students, we see no reason for allowing such

continuing injuries to stand.

The Attorney General insists that if minors desire expungement, they should petition

to have their juvenile records expunged using the processes outlined in South Carolina

Code § 63-19-2050. That misses the point. The subclasses’ entitlement to expungement

does not depend on whether they individually satisfy the eligibility criteria outlined in

South Carolina’s expungement statute, which is meant to deal with people convicted under

valid laws. Rather, the subclass members are uniformly entitled to relief because the laws

could not authorize or legitimize any elementary school student’s arrest, charge, or

delinquency adjudication in the first place. See Welch v. United States,

(2016). Plaintiffs do not seek vacatur of earlier enforcement actions, but relief from

13 See Application for Admission—Part B, Supreme Court of South Carolina Office of Bar Admissions, https://barapplication.sccourts.org/Documents/SamplePartB.pdf (last visited Jan. 5, 2023) (disclosure of juvenile offenses); Army Reg. 601-210, ¶ 2-11(a) (interview on any records of juvenile court adjudications);

- 1420(B) (driver’s license suspension);

(A) (grounds for student expulsion).

27 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 28 of 40

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. 14

* * *

Lest there be any confusion: We do not hold that schools are powerless to discipline

elementary and secondary school students who disturb the learning environment.

Consistent with Tinker and the decisions following it, South Carolina educators possess

“comprehensive authority . . . consistent with fundamental constitutional safeguards, to

prescribe and control conduct in the schools.”

. As part of that authority,

schools may adopt and enforce codes of conduct, many of which appear to cover much of

the behavior punished under the disorderly conduct and disturbing schools laws.

But unlike the policy in Tinker or the codes of conduct maintained in schools

throughout the country, the laws challenged here expose minors to criminal prosecution

14 We flag several arguments relating to expungement the Attorney General has not made to this Court. The Attorney General has not claimed the district court erred in certifying the subclasses on the theory that they sought “different injunction[s]” or “individualized” relief that is not permissible under Federal Rule of Civil Procedure 23(b)(2). See Wal-Mart, 564 U.S. at 360–61 (quotation marks omitted). (At any rate, the district court entered two class-wide injunctions related to existing records and plaintiffs have stated without contradiction that the district court’s remedial order does not require the destruction of any records but merely restricts future use of such records. Oral Arg. 31:59–32:08.) In addition, at no point during his opening brief, his reply brief, or at oral argument has the Attorney General argued that any portion of the district court’s remedial order violates the rules of Younger v. Harris,

(1971), Heck v. Humphrey,

(1994), or their progeny. Accordingly, any such arguments—none of which implicates subject-matter jurisdiction—are now forfeited. See, e.g., IGEN Int’l, Inc. v. Roche Diagnostics GmbH,

, 308 (4th Cir. 2003).

28 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 29 of 40

and all the collateral consequences that follow. Laws imposing such weighty costs on free

expression must define their bounds, so students have fair warning about what is prohibited

and the discretion of those who enforce the laws is adequately constrained. Because the

laws before us fail to do so, the judgment of the district court is

AFFIRMED.

29 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 30 of 40

NIEMEYER, Circuit Judge, dissenting:

Three South Carolina school students who engaged in disruptive behavior while in

school were charged with violating either of two South Carolina misdemeanor statutes —

South Carolina Code § 16-17-530 (the Disorderly Conduct Statute) and § 16-17-420 (2010)

(the Disturbing Schools Statute). They commenced this action on behalf of themselves

and a class of persons similarly situated, contending that the statutes are unconstitutionally

vague. They sought declaratory and injunctive relief, as well as an expungement remedy

that would prohibit the State from considering or retaining their criminal records relating

to the charges.

The district court agreed with the plaintiffs, granting them, as well as a class of all

elementary and secondary school students in South Carolina, a permanent injunction

prohibiting the enforcement of the Disorderly Conduct Statute against elementary and

secondary students in South Carolina while attending school. It also certified two

subclasses of students who had been referred or charged under either statute and ordered

the expungement remedy for both subclasses. The majority opinion affirms.

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

30 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 31 of 40

Disorderly Conduct Statute, I would uphold the constitutionality of that statute on the

merits.

In my view, the majority opinion blurs its analysis of the two statutes and who has

standing with respect to each form of requested relief. And in doing so, it dismisses the

importance of any distinction between facial challenges and as-applied challenges,

describing the “quarrel” about the two as “much ado about little.” Ante at 17. In contrast,

I believe that each statute and form of relief must be analyzed separately, as the

circumstances of each are meaningfully distinct for purposes of applying the appropriate

analysis and disposing of the plaintiffs’ claims.

I

The plaintiffs, D.S., D.D, and S.P., were South Carolina students who were charged

with disruptive conduct under the South Carolina statutes. Their individual circumstances

are important, especially with respect to an as-applied analysis.

In April 2016, D.S., a 17-year-old female student at Stall High School, engaged in

a physical fight in the hallway of her school. While she did not initiate the fight, she fully

engaged in it, and the fight had to be broken up by teachers at the school. D.S. was sent

home from school and later charged with violating the Disturbing Schools Statute.

In April 2017, D.D., an eighth-grade male student at Whittemore Park Middle

School, was confronted by school officials with information received from another student,

who wrote on social media that D.D. “was going to shoot up a school.” Multiple students

claimed that D.D. talked about shooting up a school the previous day when he was riding

31 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 32 of 40

the school bus. While D.D. denied the allegations, the school nonetheless called law

enforcement to patrol the school grounds in response to the threat, and D.D. was charged

with violating the Disturbing Schools Statute. Although that charge was ultimately

dismissed, D.D. was still required to transfer to another school.

Finally, in October 2015, S.P., a female freshman at Travelers Rest High School,

had an altercation with a classmate in the school library and then refused directives to leave

the library while speaking profanity. A classmate had been making fun of S.P. throughout

the morning, and S.P. loudly told her to “stop talking about” her. After the library

summoned the school principal and the principal told S.P. that she needed to leave the

library with him, S.P. refused. The principal then called a school resource officer to the

library, who also directed S.P. to leave the library to speak with him and the principal, and

again S.P. refused. Finally, when S.P. did decide to leave, she announced that she would

“rather be home than in this hell” and said to the classmate, “Fuck you.” Students in the

library began clapping as S.P. was leaving the library, and S.P. said to her classmates,

“Fuck all of you.” S.P. was suspended from school for four days and later charged with

violating the Disorderly Conduct Statute.

II. The Disorderly Conduct Statute

The plaintiffs challenged the Disorderly Conduct Statute as unconstitutionally

vague “as applied to elementary and secondary school students.” That law provides in

relevant part:

32 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 33 of 40

A person who . . . conducts himself in a disorderly or boisterous manner [or] uses obscene or profane language . . . at any public place or gathering or in hearing distance of any schoolhouse or church . . . is guilty of a misdemeanor.

(A). The standard for finding a statute unconstitutionally

vague is well established. A statute violates the Due Process Clause if it is so vague that it

fails to “give a person of ordinary intelligence adequate notice of what conduct is

prohibited” or lacks “sufficient standards to prevent arbitrary and discriminatory

enforcement.” Manning v. Caldwell,

(4th Cir. 2019) (en banc). It is

also well established that one whose conduct is clearly prohibited by a statute cannot

challenge the statute for vagueness. See United States v. Hosford,

(4th

Cir. 2016); United States v. Hasson,

, 616–17 (4th Cir. 2022). This is because

one who has not been affected by vagueness in a statute generally lacks standing to bring

a facial challenge on behalf of others who may have been affected. See Hart Book Stores,

Inc. v. Edmisten,

(4th Cir. 1979); see also Ali v. Hogan,

(4th Cir. 2022).

To begin, we have already found that S.P. and D.S. have standing to seek an

injunction against the enforcement of the Disorderly Conduct Statute in schools based on

a credible threat of future enforcement of the law and a potential chilling effect on student

conduct. See Kenny v. Wilson,

, 288–89 (4th Cir. 2018). But in Kenny, we

also acknowledged the requirement that “[a]t least one plaintiff must demonstrate standing

for each claim and form of requested relief.”

(emphasis added); see also Friends

of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,

(2000). While

we held in Kenny that the alleged threat of future enforcement supported standing for the

33 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 34 of 40

request for injunctive relief, such a threat does not support standing with respect to the

expungement remedy, which is based on past conduct. The plaintiffs are seeking

expungement relief on behalf of a subclass of all elementary and secondary school students

with existing records under the Disorderly Conduct Statute. But because S.P. is the only

named plaintiff who has a record of a past referral or charge under the Disorderly Conduct

Statute, we must determine whether that law was vague as applied to her when determining

whether she can pursue the expungement remedy. See Hosford,

. I

conclude that that cannot be shown.

S.P. created a protracted disturbance in the school library by refusing to comply

with directives from the school principal and a school resource officer, and the severity of

the disturbance was reflected in the fact that the students in the library clapped as S.P. was

leaving it, demonstrating that the disturbance had disrupted the entire library session.

Further, during the disturbance, S.P. used profanity in its boldest sense, acting in a

“disorderly or boisterous manner.” I would thus conclude that S.P.’s conduct fell squarely

within the scope of the Disorderly Conduct Statute, and the law was not impermissibly

vague as to her. The Statute made it a misdemeanor to conduct oneself “in a disorderly or

boisterous manner” or to use “obscene or profane language” while in a public place such

as a school.

(A)(1)–(2). Accordingly, S.P. does not have

standing to seek the expungement remedy on the ground that the Disorderly Conduct

Statute is facially vague.

With respect to the injunction remedy sought against future enforcement of the

Statute against elementary and secondary school students — which we earlier held S.P.

34 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 35 of 40

and D.S. have standing to pursue — I would conclude on the merits that the Disorderly

Conduct Statute is not unconstitutionally vague. Courts have consistently upheld similar

laws prohibiting disorderly conduct in public places. See, e.g., Grayned v. City of

Rockford,

, 110–11 (1972) (rejecting a facial vagueness challenge to an anti-

noise ordinance that forbade deliberately noisy activity “that disrupts or is about to disrupt

normal school activities” and was limited to when school was in session); United States v.

Moriello,

, 931–32 (4th Cir. 2020) (rejecting an as-applied vagueness

challenge to a regulation prohibiting “disorderly conduct” or other conduct on federal

property that “impedes or disrupts the performance of official duties by Government

employees”); United States v. Fentress,

, 529–30 (D. Md. 2003)

(rejecting a facial vagueness challenge to a regulation prohibiting “[d]isorderly conduct

which creates loud, boisterous, and unusual noise” or otherwise “tends to impede or prevent

the normal operation” of a Veterans Affairs facility); cf. Tinker v. Des Moines Indep. Sch.

Dist.,

, 508–09 (1969) (striking down a regulation of student conduct that was

akin to pure speech without any evidence that the conduct would substantially disrupt or

interfere with school activities).

Moreover, in this case, the Statute stands on even firmer ground when we apply it

in light of the limiting constructions given to it by South Carolina courts. Specifically, in

City of Landrum v. Sarratt, the South Carolina Court of Appeals concluded that profane

language alone does not violate the Disorderly Conduct Statute in light of the First

Amendment and therefore the Statute must instead be read to prohibit “fighting words” —

words spoken loudly or repeatedly in the presence of others accompanied by aggressive

35 USCA4 Appeal: 21-2166 Doc: 61 Filed: 02/22/2023 Pg: 36 of 40

behavior.

, 477–79 (S.C. Ct. App. 2002). The court observed that fighting

words incite violence and thus are not protected by the First Amendment.

. While

the Sarratt holding may not be fully dispositive of the vagueness question, see Kenny,

, it nonetheless does narrow the scope of the Statute’s text. And when

evaluating a state statute, the federal courts must take the statute precisely as state courts

have interpreted it. See Kolender v. Lawson,

, 355 n.4 (1983).

Recognizing the principle that “every statute is presumed to be constitutional,”

United States v. Bollinger,

(4th Cir. 2015) (cleaned up), I conclude that

the Disorderly Conduct Statute is not unconstitutionally vague. Indeed, disorderly conduct

statutes have been enforced for hundreds of years without substantial difficulty.

III. The Disturbing Schools Statute

The plaintiffs also challenge the 2010 version of the Disturbing Schools Statute as

unconstitutionally vague on its face. That statute made it “unlawful . . . for any person

wilfully or unnecessarily . . . to interfere with or to disturb in any way or in any place the

students or teachers of any school or college in [South Carolina] . . . or . . . to act in an

obnoxious manner [on school or college premises].”

(A)

(2010). Because the Statute was amended in 2018, the plaintiffs no longer seek injunctive

relief as to its enforcement and instead seek only the expungement remedy, which requires

an as-applied analysis.

In Kenny, we held that D.S. and S.P. had standing to seek injunctive relief with

respect to the future enforcement of the Disturbing Schools Statute.

. But

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we did not decide — indeed we left open — who, if anyone, had standing to seek the

expungement remedy. See

at 287 n.2. Moreover, we observed that the request for

expungement relief might present a standing challenge for the plaintiffs “because one

plaintiff does not have standing to request that another plaintiff’s records be expunged.”

In this case, both D.S. and D.D. were charged under the Disturbing Schools Statute

and seek the expungement remedy. But to obtain such relief, they must demonstrate the

vagueness of the Statute with respect to its past enforcement against them, which is an as-

applied challenge. And it is well established that if an individual’s past conduct was clearly

prohibited by a statute, the individual cannot challenge it for vagueness. See Hosford,

; Hasson, 26 F.4th at 616–17. In this case, when looking at the alleged

conduct of D.S. and D.D. that gave rise to charges under the Statute, there can be little

doubt that the conduct was prohibited by the Disturbing Schools Statute.

D.S. got into a physical altercation in the school hallway that required intervention

by schoolteachers. A person of ordinary intelligence would undoubtedly understand that

engaging in a physical fight with another student on school property during school hours,

requiring the intervention of teachers, would qualify as interfering with and disturbing

students and teachers. Similarly, a person of ordinary intelligence would understand that

D.D. violated the Statute by threatening, within earshot of multiple other students, to “shoot

up” the school. Although he disputed the allegations, that is not relevant to the vagueness

analysis. The relevant question is whether the alleged conduct, if true, would fall squarely

within the terms of the Statute. See Hasson,

. Because the conduct of both

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D.S. and D.D. fell squarely within the terms of the Disturbing Schools Statute, they cannot

claim that they are entitled to the expungement remedy because the Statute was

unconstitutionally vague. Likewise, they lack standing to challenge it on the ground that

it was “vague for other hypothetical defendants.” Hosford,

.

Accordingly, the district court’s expungement remedy as to the Disturbing Schools

Statute should be vacated.

Even if a facial challenge of the Statute were properly before us — although it is

not — I would conclude nonetheless that the challenged version of the Statute was facially

constitutional. As the Supreme Court has recognized, conduct that disturbs the learning

environment is a proper target of regulation. See Grayned, 408 U.S. at 110–11. Also,

when evaluating a facial challenge to a state law, federal courts must “consider any limiting

construction that a state court . . . has proffered” in interpreting the law. Vill. of Hoffman

Estates v. Flipside, Hoffman Estates, Inc.,

, 494 n.5 (1982); see also Manning,

.

In In re Amir X.S., the Supreme Court of South Carolina rejected an overbreadth

challenge to the Disturbing Schools Statute.

(S.C. 2006). The court found

that the Statute does not prohibit the “clearly expressive conduct historically subject to

overbreadth adjudication in the school context” but is more appropriately understood as a

statute “targeting conduct termed ‘disruptive’ to schools,” similar to the anti-noise

ordinance at issue in Grayned.

. Although the court in In re Amir X.S. dealt with

overbreadth, whereas the Statute is challenged before us for vagueness, the state-court

opinion nonetheless imposes limitations on the Statute’s text that we cannot ignore. As to

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those limitations, the court stated: “First, the statute specifically deals with the disturbance

of students and teachers in South Carolina’s schools, and not a disturbance in just any

public forum. Furthermore, it does not explicitly prohibit any type of gathering or

expression except those which disturb the learning environment in South Carolina’s

schools.”

(citation omitted).

In addition, the court in In re Amir X.S. noted that the Disturbing Schools Statute

only prohibited conduct that was done “wilfully” or “unnecessarily.”

(quoting S.C. Code Ann § 16-17-420(1)(a) (1972)). The Supreme Court “has recognized

that a scienter requirement may mitigate a law’s vagueness, especially with respect to the

adequacy of notice to the complainant that his conduct is proscribed.” Vill. of Hoffman

Estates,

. The majority, however, mechanically dismisses the

“unnecessarily” language in the Statute as one that does not require a mens rea. I

respectfully disagree. “Wilfulness,” of course, is a well-recognized scienter requirement.

See Bryan v. United States,

(1998) (explaining that in the criminal

context, “wilfully” refers to a culpable state of mind, in which the defendant acted with a

bad purpose). And “unnecessarily,” as it is positioned in the alternative to “wilfully,” is

clearly meant to designate a similar mens rea, although a less traditional one.

“Unnecessarily” requires that the conduct have been done gratuitously —that is, without

justification or permissible purpose. See Gratuitous, Black’s Law Dictionary (11th ed.

2019) (“2. Done unnecessarily”). As so understood, the Statute unproblematically

prohibits disruptive activity that has no independent justification, that is undertaken

voluntarily, and that is of a nature that is highly likely to interfere with the proper

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functioning of an educational institution. On that natural understanding of the Statute’s

scope of application, I cannot see how it could be said to lack a mens rea.

At bottom, the Disturbing Schools Statute surely “give[s] a person of ordinary

intelligence adequate notice of what conduct is prohibited” and contains “sufficient

standards to prevent arbitrary and discriminatory enforcement.” Manning,

.

Therefore, if a facial challenge to the pre-2018 version of the Statute were properly before

us, I would uphold it as a constitutional restraint on conduct that disturbs the learning

environment in schools.

IV

The education of our youth demands safe and orderly schools that are conducive to

learning, and students — or indeed others — who disrupt school activities or create

disorder in them must therefore be subject to meaningful regulation.

For years, South Carolina has applied its Disorderly Conduct Statute and Disturbing

Schools Statute to address disruption in schools, and there is little evidence that school

officials, students, and parents have had difficulty in understanding what conduct was

prohibited. Flyspecking the Statutes’ words now with the purpose of finding ambiguities

is not, I respectfully submit, an appropriate judicial approach to reviewing state statutes.

Yet, students who clearly violated the statutes and understood that they were doing so now

seek to have them invalidated as unconstitutionally vague. We owe the State deference in

its efforts to address school disruption problems — especially in this age when schools are

under stress — by recognizing the presumption that its statutes are constitutional. I regret

that our holding today materially undermines the State’s efforts, and needlessly so.

40