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25 Lewis & Clark L. Rev. i (2021-2022)

handle is hein.journals/lewclr25 and id is 1 raw text is: Lewis & Clark
Law Review
Volume 25                         2021                         Number 1
EDITOR'S NOTE
Connor  B. M cD erm ott..................................................................................  xi
ARTICLES
From After-School Detention to the Detention Center: How Unconstitutional School-
Disruption Laws Place Children at Risk of Prosecution for Speech Crimes
Frank LoMonte & Anne Marie Tamburro .........................................................1
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.

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