Opinion
Civil Action 2:16-cv-2794-MBS
12-01-2021
Kenny, et al., Plaintiffs, v. Wilson, et al., Defendants.
ORDER
Margaret B. Seymour, Senior United States District Judge.
Plaintiffs in this class action challenged as unconstitutionally vague the Disturbing Schools Law, codified at S.C. Code Ann. § 16-17-420, and the Disorderly Conduct Law, codified at S.C. Code Ann. § 16-17-530. The class sought as relief a declaratory judgment that the statutes violate the Fourteenth Amendment; a permanent injunction enjoining the State of South Carolina from enforcing the Disorderly Conduct Law; and an order enjoining the State from considering and/or retaining records of individuals prosecuted or charged under the Disturbing Schools and Disorderly Conduct Laws, except as would be permissible following expungement.
On May 17, 2018, while this lawsuit was pending, the South Carolina Legislature amended the Disturbing Schools Law to apply to non-students only. This amendment mooted Plaintiffs' request that the court enjoin enforcement of the Disturbing Schools Law and Plaintiffs at no point challenged the Disturbing Schools Law in its current form. Plaintiffs maintained, however, that the Disturbing Schools Law in its former iteration is unconstitutionally vague and, on that basis, sought relief enjoining Defendant from considering and/or retaining records of individuals prosecuted or charged under the former Disturbing Schools Law.
On October 8, 2021, the court issued an opinion and order granting the motion for summary judgment filed by Plaintiffs Niya Kenny; Taurean Nesmith; Girls Rock Charleston, Inc.; D.S., by and through her next of kin Juanita Ford; S.P., by and through her next of kin Melissa Downs, and D.D., by and through his next of kin, Temika Hemmingway (collectively, “Plaintiffs”) on behalf of themselves and those similarly situated. The opinion and order additionally denied the cross motion for summary judgment filed by Defendant Alan Wilson, in his official capacity as Attorney General of South Carolina (“Defendant”). In granting Plaintiffs' motion, the court ordered in relevant part the following injunctive relief:
the State's enforcement of S.C. Code Ann. § 16-17-530 is permanently enjoined as to elementary and secondary school students in South Carolina while they are attending school . . .;
. . . the State is permanently enjoined from retaining the records of the Disorderly Conduct Law Sub-Class and the Disturbing Schools Law Sub-Class, relating to being taken into custody, charges filed, adjudication, or disposition under S.C. Code Ann. § 16-17-420, prior to May 17, 2018, and under S.C. Code Ann. § 16-17-530, except as would be permissible following expungement under S.C. Code Ann. § 17-1-40 . . . .ECF No. 240 at 38. The first injunction is referred to as the Enforcement Injunction and the second injunction is referred to as the Expungement Injunction. Defendant filed a notice of appeal to the Fourth Circuit Court of Appeals on October 12, 2021.
The first injunction concerns enforcement of the Disorderly Conduct Law and affects the class certified as: “[a]ll 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 S.C. Code § 16-17-530 while attending school, ” (“Enforcement Class”). ECF No. 201. The second injunction concerns retention of records under the Disorderly Conduct and Disturbing Schools Laws and affects the sub-classes certified as: “[a]ll 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 S.C. Code § 16-17-530, ” (“Disorderly Conduct Law SubClass”); and “[a]ll 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 S.C. Code § 16-17-420 prior to May 17, 2018, ” (“Disturbing Schools Law Sub-Class”). ECF No. 201.
The matter is now before the court on Defendant's motion for a stay of the opinion and order pending Defendant's appeal of the court's decision (“Motion to Stay”). ECF No. 252.Plaintiffs filed a response opposing the Motion to Stay, ECF No. 257, to which Defendant filed a reply, ECF No. 258. The court assumes the reader's familiarity with the factual background and procedural history of this lawsuit. The court additionally finds that a hearing would not aid in the disposition of the Motion to Stay.
Defendant does not ask the court to stay the portion of the opinion and order that dismisses Plaintiffs Kenny and Nesmith from the action. ECF No. 252 at 1 n.1.
LEGAL STANDARD
The power to grant a stay pending appellate review is part of a court's “traditional equipment for the administration of justice.” Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 9-10 (1942)). However, considering that a stay is an “intrusion into the ordinary processes of administration and judicial review, ” a stay “is not a matter of right, even if irreparable injury might otherwise result to the [applicant].” Id. at 427 (quoting Virginia Petroleum Jobbers Assn. v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958) and Virginian R. Co. v. United States, 272 U.S. 658, 672 (1926)). Rather, ordering a stay is “an exercise of judicial discretion, ” and “[t]he propriety of its issue is dependent upon the circumstances of the particular case.” Id. at 433 (quoting Virginian R. Co., 272 U.S. at 672-73). Courts are guided by the following four factors in determining how best to exercise that discretion: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The movant . . . bears the burden of showing that the circumstances justify a stay pending appeal.” Id. at 433. Of relevance here, when an injunction serves as an equitable remedy for constitutional violations, the court's “clear and compelling duty . . . is to institute meaningful relief to eliminate the effects of past illegality and assure future compliance with the laws of the land.” Holloway v. City of Virginia Beach, No. 2:18-cv-69, 2021 WL 3037410, at *4 (E.D. Va. Jul. 19, 2021) (citing Louisiana v. United States, 380 U.S. 145, 154 (1965) (“We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future”).
DISCUSSION
I. Likelihood of Success on the Merits
A. Void for Vagueness Analysis
Defendant contends first that the court erred by “improperly conflating [the vagueness] analysis with a deficient First Amendment analysis, ” thereby “assum[ing] that the statutes implicated the First Amendment without any analysis of the First Amendment issues at stake.” ECF No. 252 at 5. The proper analysis, Defendant posits, required the court to “first consider whether ‘the enactment reaches a substantial amount of constitutionally protected conduct, '” which in turn required the court to “analyze the First Amendment implications of the statutes in the proper context of the unique school environment.” Id. (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)). Defendant argues that the statutes do not reach a substantial amount of constitutionally protected conduct and, “because [the statutes] are not impermissibly vague in all of their applications, the plaintiffs' facial vagueness challenges must fail.” Id. at 6 (citing Village of Hoffman Estates, 455 U.S. at 495).
Plaintiffs respond that Defendant miscites Village of Hoffman Estates and cites to non-precedential cases to advance the State's position. ECF No. 257 at 8-9. Moreover, Plaintiffs assert, even if the court erred by failing to consider the circumscribed nature of First Amendment rights in a classroom or schoolyard setting, the error is not so pervasive as to disrupt the court's ruling.
Notably, in his affirmative motion for summary judgment, Defendant did not argue that the court should undertake the legal analysis that he now asserts the court failed to follow. Nor did he make any such assertion in his response to Plaintiffs' cross motion. In other words, Defendant asks the court for the extraordinary remedy of a stay based on an argument he articulates for the first time in a post-judgment filing following the conclusion of five years of litigation. The court is unpersuaded by Defendant's eleventh-hour endeavor to defend against Plaintiffs' claims.
First, as Plaintiffs note, the language Defendant relies on from Village of Hoffman Estates to assert that the court must first determine whether the statutes reach a substantial amount of constitutionally protected conduct pertains to an overbreadth challenge, which was not at issue in this case. See Village of Hoffman Estates, 455 U.S. at 494-95. See also Holder v. Humanitarian Law Project, 561 U.S. 1, 20 (2010) (explaining, in the context of an as applied challenge, that “our precedents make clear that a Fifth Amendment vagueness challenge does not turn on whether a law applies to a substantial amount of protected expression . . . [o]therwise the doctrines [of vagueness and of overbreadth] would be substantially redundant”) (citing United States v. Williams, 553 U.S. 285, 304 (2008); Hoffman Estates, 455 U.S. at 494-495, 497). But see Martin v. Lloyd, 700 F.3d 132, 135 (4th Cir. 2012) (instructing that “[w]hen considering a facial challenge, courts first determine whether the enactment implicates a substantial amount of constitutionally protected conduct”) (citing Hoffman Estates, 455 U.S. at 494).
During the telephonic hearing on the cross motions for summary judgment, the court asked counsel the significance of analyzing the void for vagueness challenge as a facial rather than an as applied challenge, and whether the outcome would change depending on how the court characterized the challenge. Defendant emphasized the State's position that the challenge to the statutes is facial but could not explain to the court how the outcome would change, other than to assert that facial challenges are particularly disfavored and carry a higher burden of persuasion for the party challenging the statute. See ECF No. 240 at 22 (“The parties conceded at oral argument that the outcome of the lawsuit would not change based on whether the court characterizes the challenge as one that is facial or one that is as applied”). Now, in his reply brief in support of the Motion to Stay, Defendant asserts: “[i]f the challenge which Plaintiffs have made is an as applied case, rather than a facial one, the analysis would be significantly different, particularly in a class action.” ECF No. 258 at 9. In any event, as discussed below, the statutes not only reach a substantial amount of constitutionally protected conduct, they impose criminal penalties, which is a distinction Defendant fails to acknowledge in his lengthy discourse on the State's interest in regulating the school environment. See, e.g., ECF No. 258 at 4-9.
Second, as the court explained in its opinion and order, the United States Supreme Court clarified in Johnson v. United States that a party need not demonstrate that a statute is incapable of any valid application in order to prevail on a void for vagueness challenge. ECF No. 240 at 22 (citing 576 U.S. 591, 595 (2015)). See Sessions v. Dimaya, 138 S.Ct. 1204, 1214 n.3 (2018) (“Johnson made clear that our decisions ‘squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision's grasp'”).
Finally, contrary to Defendant's present argument, the statutes in fact reach a substantial amount of constitutionally protected conduct in that they implicate the class members' First Amendment rights. The Fourth Circuit observed as much when it noted that “attending school inevitably involves expressive conduct” and accepted Plaintiffs' allegations that the statutes “limit their right to free speech under the First Amendment.” Kenny v. Wilson, 885 F.3d 280, 281, 288 (4th Cir. 2018). Indeed, public school students do not shed their First Amendment rights “at the school house gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 511-13 (1969). Accord Mahanoy Area School District v. B.L., 141 S.Ct. 2038, 2044 (2021). However, the “constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). A student's conduct that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others, ” is not protected speech. Tinker, 393 U.S. at 513. And “[s]chool officials may regulate such speech even before it occurs, as long as they can point to ‘facts which might reasonably have led [them] to forecast' such a disruption”; however, “[s]chool officials may not [] punish speech based on only an ‘undifferentiated fear or apprehension of disturbance' or ‘a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.'” Hardwick v. Heyward, 711 F.3d 426, 434 (4th Cir. 2013) (quoting Tinker, 393 U.S. at 508, 509, 514)).
It makes no difference that Tinker concerned the school district's regulation of students' participation in a symbolic act that involved no “aggressive[] [or] disruptive action, ” because the Court dealt squarely with the problems that lie “in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities.” Id. at 507-08.
Not only do the statutes reach constitutionally protected conduct, see, e.g., ECF No. 240 at 24-25, 26-27, 30-31, 34, 35 (this court's discussion of how the statutes implicate students' First Amendment Rights), the undisputed record reflects that students were charged under the statutes even when their behavior did not materially disrupt classwork or involve substantial disorder or invasion of the rights of others. Tinker, 393 U.S. at 512-13 (“A student's rights [] do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects . . ., if he does so without ‘materially and substantially interfer(ing) with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others”) (citation omitted). See ECF No. 219 (Declaration of S.P.); ECF 223-15 (Declaration of Niya Kenny).
The court notes Defendant's citation to Holder v. Humanitarian Law Project, 561 U.S. 1, 19 (2010) to support its contention that the court conflated two separate analyses. ECF No. 252 at 5. The Court found error in the district court's holding that portions of the statute at issue “were unconstitutionally vague because they applied to protected speech-regardless of whether those applications were clear.” 561 U.S. at 19. This court found the statutes void for vagueness not because they implicate class members' First Amendment rights but because they fail to provide adequate notice of what conduct is prohibited and are so standardless as to authorize or encourage seriously discriminatory enforcement.
In finding that the statutes reached areas of protected speech, the court applied a heightened standard of review to its vagueness analysis. See ECF No. 240 at 21-22. Defendant does not contest that application of a heightened standard is appropriate in such a context, or that criminal laws are subject to greater scrutiny on a vagueness review. As Plaintiffs aptly articulate, precedent and common sense suggest that a stricter review should apply to criminal statutes enforced on school children.
In its endeavor to refocus the court's attention from a due process analysis to a protected speech analysis, Defendant cites a series of cases in which the court deferred to “states and school administrators on issues of school management.” ECF No. 252 at 7-8. None of these cases involve the enforcement of criminal laws against students for the purpose of maintaining order and discipline in the classroom.
Regardless of whether the court applies the standard set forth by Plaintiffs in their summary judgment briefs or by Defendant in his Motion to Stay, the outcome is the same: the statutes reach constitutionally protected conduct; application of a heightened standard of review is appropriate; and Plaintiffs are not required to demonstrate that the portions of the statutes they challenge have no valid application. Defendant's effort to avoid the consequences of the court's void for vagueness analysis by recasting the issue as one viewed within the limitations on free speech in a school setting is both untimely and misguided.
B. Authority to Enjoin Enforcement of Criminal Statutes and to Order Expungement
Defendant argues next that the court “lack[s] equity jurisdiction to enjoin criminal prosecutions, ” and “lack[s] authority to order class wide expungement.” ECF No. 252 at 17, 20. Plaintiffs respond to the first contention that Defendant “conflates standards of abstention of state court proceedings with the court's authority to issue a remedy against enforcement by state officials.” ECF No. 257 at 12. They respond to the second contention that the issue was argued and decided on their motion to certify class; federal courts have the authority to order expungement as a remedy where a conviction was based on a statute later declared unconstitutional; and expungement as a form of class relief is appropriate here so as to favor efficiency and avoid repetitive litigation. ECF No. 257 at 14.
Defendant does not contest the court's jurisdiction over the claims raised in this action. Such jurisdiction confers upon the court the authority to fashion an appropriate remedy upon determining that the statutes are unconstitutional. Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 69 (1992) (“[I]f a right of action exists to enforce a federal right and Congress is silent on the question of remedies, a federal court may order any appropriate relief”). See Davis v. Passman, 442 U.S. 228, 242, 245 (1979) (“it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the State to do”) (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)). See also North Carolina State Conference of NAACP v. McCrory, 831 F.3d 204, 239 (4th Cir. 2016) (“once a plaintiff has established the violation of a constitutional or statutory right in the civil rights area, . . . court[s] ha[ve] broad and flexible equitable powers to fashion a remedy that will fully correct past wrongs”) (citations omitted).
With respect to the Enforcement Injunction, “[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. However, 42 U.S.C. § 1983 is an Act of Congress that fits squarely within the exception set forth in the federal anti-injunction statute. Mitchum v. Foster, 407 U.S. 225, 242-43 (1972). Separately, federal injunctive intervention in a pending state court prosecution is appropriate under the following exceptional circumstances: “where irreparable injury is both great and immediate”; “where the state law is flagrantly and patently violative of express constitutional prohibitions”; “or where there is a showing of bad faith, harassment, or . . . other unusual circumstances that would call for equitable relief.” Id. at 230 (quoting Younger v. Harris, 401 U.S. 37, 46, 53, 54 (1971) (internal quotation marks omitted)). Defendant has not cited the court to case or statutory law that operates to limit the court's authority thus described.
Defendant cites to Fitts v. McGhee, 172 U.S. 516 (1899), but the holding in Fitts pertains to the requirement that a state officer have some connection, by virtue of his office, with the enforcement of a challenged act and moreover the case did not involve a law deemed unconstitutional. See Ex Parte Young, 209 U.S. 123, 156-160 (1908) (discussing Fitts, observing “[i]t would be an injury to complainant to harass it with a multiplicity of suits or litigation generally in an endeavor to enforce penalties under an unconstitutional enactment, and to prevent it ought to be within the jurisdiction of a court of equity, ” and pronouncing “[i]f the question of unconstitutionality, with reference, at least, to the Federal Constitution, be first raised in a Federal court, that court, as we think is shown by the authorities cited hereafter, has the right to decide it, to the exclusion of all other courts”).
Plaintiffs brought this action under 42 U.S.C. § 1983 for a determination that the statutes are unconstitutionally vague and for an award of injunctive relief. In determining that the statutes are unconstitutional, the court relied in part on the record evidence that the Legislature's failure to provide law enforcement with a standard for application has resulted in discriminatory enforcement of the statutes. The court noted as well that the record evidence demonstrates that the mere charge of a violation, even absent conviction, carries long lasting and deleterious effects. See ECF No. 240 at 38. Accordingly, the court granted the Injunctions pursuant to § 1983, an Act of Congress, to effectuate its judgment regarding the unconstitutionality of the statutes, and in furtherance of its finding that continued enforcement of the Disorderly Conduct Law against school students in this state poses a risk of both great and immediate irreparable harm to the members of the Enforcement Class.
The factor regarding likelihood of success on the merits weighs in favor of Plaintiffs.
II. Balance of Harm
Defendant argues the balance of harm favors the State because the scope of the injunction “could require the expungement of records of as many as several thousand students, ” and “[o]nce these terms are enforced, the expungements cannot be reversed.” ECF No. 252 at 3. Defendant further states that “enjoined prosecutions could not resume under such circumstances because the records supporting prosecutions would be expunged.” Id. By contrast, Defendant asserts, a stay of the opinion and order will not injure the class members:
For the students who have records from prior adjudications, they would be free to pursue their options for expungement if permitted under State law as discussed in the State's Memorandum . . . [and] if this Court's Order is sustained on appeal, they would be entitled to expungement then. With respect to current and future prosecutions, these proceedings could be held in abeyance, continued or stayed on an individual basis at the request of the student and with the approval of the Court pending the appeal. With respect to students under probation or other Court supervision, these students could simply continue in that status pending an appeal.Id. at 4. In a supplemental filing, Defendant submits that “as many as 124 or more youth in school who are age 21 and under have a pending charge or are on probation, community evaluation, etc. for school related offenses under [the] statutes.” ECF No. 255 at 1. Additionally, “as many as 5586 youth in school whose charges have been concluded, ” would be subject to the Expungement Injunction. Id. at 2.
Defendant expresses concern that expungement as ordered by the court would preclude review of students' records without consideration given to “the severity of the conduct that led to those arrests.” ECF No. 152 at 22. However, the court deemed the Disorderly Conduct Law and the former Disturbing Schools Law unconstitutional on their face as applied to elementary and secondary school students in South Carolina. Accordingly, it is a violation of the constitution for any South Carolina elementary or secondary student to be charged under either statute, regardless of the behavior that gave rise to the charge. To the extent a student was charged under either statute for behavior that would have been considered a violation of a different law, such outcome helps highlight the problematic nature of the imprecise language plaguing the statutes. To the extent a student was charged under either statute in addition to another law, the record of arrest for violation of another law is not affected by the injunction.
Plaintiffs contend the balance of harm favors them because a stay “would permit the continued enforcement of unconstitutional laws against South Carolina school students.” ECF No. 257 at 16. Plaintiffs assert, “[t]he harm [] also includes the risk of continued discriminatory enforcement against Black students and students with disabilities.” Id. Additionally, Plaintiffs argue, “enforcement of these unconstitutional laws against students negatively impacts their educational opportunities, ” and the threat of enforcement “chills students' freedom to criticize abusive police actions and discuss the role of police in their schools, as well as their broader freedom of speech and expression integral to the education process that are a part of attending school.” Id. at 16-17. Plaintiffs dispute that Defendant has demonstrated that it will suffer harm absent a stay and further dispute that the ordered relief would cause the State irreparable injury:
South Carolina Code provides that the South Carolina Law Enforcement Division (SLED) may retain the records under seal. S.C. Code § 17-1-40(B)(1)(a) (“A law enforcement or prosecution agency may retain [expunged records] . . . . The information must remain under seal. The information is not a public document and is exempt from disclosure.”). Thus, even in the unlikely event that this Court's ruling were reversed on appeal, Defendant would retain access to expunged records.ECF No. 257 at 19.
Defendant asserts in reply that if the opinion and order is reversed on appeal, “the prosecutions, sentences and all records would not be restored to their status before the injunction”:
Prosecutions might not be able to continue because witnesses' memories might have faded by then and not all the records would have been protected from expungement. Juveniles serving sentences might age out of the system by the time of reversal. Some of the records that law enforcement and prosecutors might maintain would be gone.ECF No. 258 at 10 (emphasis added). Defendant also expresses concern regarding the uncertainty of what materials law enforcement and prosecutors can maintain under S.C. Code Ann. § 17-1-40, and for how long, following expungement. Id. at 10-11. Defendant contends § 17-1-40 does not provide adequate protection with respect to record retention for the State to effectively resume the prosecution of charges under the statutes were the Fourth Circuit to reverse the opinion and order. Id. at 12. Defendant asks as an alternative to a “full stay” that the court “allow agencies and officers with records covered by this order [] to place them all under seal, regardless of whether they are referenced in § 17-1-40, until this case is concluded with a right to use those records during that time for the purposes referenced in the statute.” Id. at 13. Defendant asserts that “[j]uveniles would not be harmed by such a blanket seal because their records would not be subject to release.” Id.
Defendant carries the burden of demonstrating a stay is appropriate. Defendant asserts that “up to 5, 000 or more students will be affected by the Court's Order, ” and “[i]rreversibly losing that many students from the criminal justice system before this appeal is decided is truly irreparable harm to State interests.” ECF No. 255 at 2. Quizzically, Defendant appears to suggest that referring public school students to the Department of Juvenile Justice, prosecuting them, and maintaining records of those charges and proceedings is the State's chief objective, in and of itself. More persuasive is Plaintiffs' assertion that “the state is harmed when its young residents are unable to attain an education and are placed at risk of future negative life outcomes, including incarceration, rather than enabled to pursue education and contribute fully as members of the state.” ECF No. 257 at 18. Viewing the potential harm to the State as articulated by Defendant against the harm members of the Enforcement Class would suffer, with particular consideration given to the evidence of discriminatory application of the statutes and long-lasting consequences of early referral to the criminal justice system, the court cannot find that the balance of harm tips in favor of Defendant with respect to the Enforcement Injunction. This is particularly so considering the court's position regarding Plaintiffs' likelihood of success on appeal. Constitutional rights are “present rights”; they are not “merely hopes to some future enjoyment of some formalistic constitutional promise, ” and “any deprivation of constitutional rights calls for prompt rectification.” Watson v. City of Memphis, 373 U.S. 526, 532-33 (1963).
The court is nonetheless sensitive to the legitimate interests of the State, and in an effort to protect federal interests and rights, especially those of public school students, while not interfering unduly with the legitimate activities of the State, see Younger, 401 U.S. at 44, the court will order a partial stay of the Enforcement Injunction as follows: the State shall hold in abeyance pending appeal the 124 or more cases of school children who have a pending charge or are on probation or are participating in community evaluation for school related offenses under the statutes. The Motion to Stay is otherwise denied with respect to the Enforcement Injunction.
This amendment to the Enforcement Injunction pending appeal is not intended to further penalize members of the Enforcement Class. That is, the State shall not interpret this amendment to preclude a student from satisfying the terms of a probationary sentence or community service program, which would allow the student to receive the benefits that completion of any such program affords. As set forth in the opinion and order, the court retains jurisdiction over this action for the purpose of addressing issues that should arise with respect to implementation of the Injunctions and the court is prepared to address on a case-by-case basis questions regarding enforcement of the Injunctions.
With respect to the Expungement Injunction, the court acknowledges the State's concern regarding the limitations on what materials it is authorized to retain following expungement and the length of time permitted for retention. Therefore, the court will stay the Expungement Injunction subject to the condition that agencies and officers in possession of records subject to the Expungement Injunction place those records under seal, regardless of whether the records include the types of materials referenced in § 17-1-40. The court is satisfied that risk of harm to the Class Members resulting from a stay of the Expungement Injunction is sufficiently mitigated by imposition of the Enforcement Injunction, subject to the partial stay as discussed herein, and the direction that the State cause materials subject to the Expungement Injunction to be placed under seal pending resolution of its appeal.
III. Public Interest
As a final matter, the court notes the parties' respective arguments regarding the public's interest in a stay. Defendant asserts that the State's interest, and the harm the State faces, necessarily merges with the public's interest. ECF No. 252 at 23. Defendant argues specifically that the opinion and order would cause “class-wide expungement of records” without any consideration given to whether “the public interest in retaining records of a specific arrest is clearly outweighed by the dangers of unwarranted adverse consequences to the individual . . . .” Id. (quoting Kowall v. U.S., 53 F.R.D. 211, 214 (W.D. Mich. 1971)). Defendant contends that “[t]he same is, of course, true as to the enjoined active prosecutions the records of which would be expunged under the terms of the Court's Order.” Id. Plaintiffs argue in retort that “[i]t is always in the public interest to ‘uphold[] constitutional rights.'” ECF No. 257 at 20 (citations omitted). The court finds that the partial stay of the Enforcement Injunction and qualified stay of the Expungement Injunction as discussed herein adequately addresses the concerns of the public interest, as articulated by all parties.
For the foregoing reasons, it is ORDERED that the Motion to Stay, ECF No. 252, is granted in part and denied in part; it is further
ORDERED that the permanent enjoinment of the State's enforcement of S.C. Code Ann. § 16-17-530 as to elementary and secondary school students in South Carolina while they are attending school is PARTIALLY STAYED as discussed herein, pending the outcome of Defendant's appeal of the court's opinion and order to the Fourth Circuit; it is further
ORDERED that the permanent injunction prohibiting the State from retaining the records of the Disorderly Conduct Law Sub-Class and the Disturbing Schools Law Sub-Class, relating to being taken into custody, charges filed, adjudication, or disposition under S.C. Code Ann. § 16-17-420, prior to May 17, 2018, and under S.C. Code Ann. § 16-17-530, except as would be permissible following expungement under S.C. Code Ann. § 17-1-40, is STAYED, subject to the condition regarding sealing records as discussed herein, pending the outcome of Defendant's appeal of the court's opinion and order to the Fourth Circuit; it is further
ORDERED that the Motion to Stay is otherwise denied.
IT IS SO ORDERED.