## Facts

- South Carolina students and a youth-advocacy nonprofit sued state officials under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against enforcement of two statutes in K–12 schools: the “Disturbing Schools” law and the “Disorderly Conduct” law.
- Student plaintiffs alleged they were arrested or charged for minor or expressive behavior at school under broad statutory terms such as “disturb in any way,” “obnoxious manner,” “boisterous,” and “profane.”
- Niya Kenny alleged she was arrested after verbally protesting and attempting to document a school resource officer’s forceful arrest of another student.
- Plaintiffs alleged the statutes chilled student speech and invited arbitrary and discriminatory enforcement, particularly against Black students and students with disabilities.
- The nonprofit alleged organizational injury because it diverted staff time and resources from programming to assist youth facing charges (e.g., attending hearings and helping families respond to prosecutions).
- The district court dismissed for lack of Article III standing, concluding plaintiffs’ fear of future enforcement was too speculative.
- Plaintiffs appealed; the appeal concerned standing and justiciability rather than the merits of the constitutional claims.

## Issues

1. Whether the student plaintiffs had Article III standing to bring a pre-enforcement challenge based on past enforcement and an ongoing fear of future arrests or prosecutions.
2. Whether the nonprofit had organizational standing based on diversion of resources to counteract the statutes’ effects.
3. Whether the claims were otherwise justiciable, including ripeness, mootness, and whether Younger abstention limited federal adjudication.

## Decision

- The Fourth Circuit reversed the dismissal in substantial part and remanded.
- The court held several student plaintiffs adequately alleged injury in fact because past arrests/charges and alleged recurring enforcement created an objectively reasonable, credible threat of future enforcement.
- The court held the nonprofit adequately alleged organizational injury because the statutes forced diversion of resources from ordinary activities to address members’ legal exposures.
- The court concluded traceability and redressability were satisfied because the injuries flowed from enforcement of the challenged statutes and prospective relief could reduce future enforcement risk and resource diversion.
- The court determined the suit was not categorically barred by other justiciability doctrines at the pleading stage and allowed the case to proceed for merits adjudication.

## Legal Principles

- A plaintiff may bring a pre-enforcement constitutional challenge without first risking renewed arrest or prosecution if there is a credible threat of enforcement.
- Prior enforcement against a plaintiff is strong evidence that a future enforcement threat is credible and the fear of recurrence is objectively reasonable.
- Allegations that a broadly worded criminal law chills speech can support injury in fact for standing when paired with a credible enforcement threat.
- An organization has standing when a challenged law perceptibly impairs its activities and forces it to expend resources to counteract the law’s effects, beyond a mere ideological interest.
- Prospective declaratory and injunctive relief can satisfy redressability when it would likely reduce threatened enforcement and related harms.

## Conclusion

The Fourth Circuit held that students previously subjected to school-based arrests and an advocacy nonprofit plausibly alleged concrete injuries sufficient for Article III standing to pursue pre-enforcement constitutional challenges to broadly worded school-related criminal statutes, and it remanded for further proceedings on the merits.


Kenny v. Wilson, 885 F.3d 280 (4th Cir. 2018)