Federal Judge Declares Portions of Michigan's Sex Offenders Registration Act Unconstitutional

Following a decision from a federal court last week, registered sex offenders in Michigan cannot currently be arrested for coming within 1,000 feet of school property. In Doe v Snyder, a group of six Tier III sex offenders, with school-aged children, challenged Michigan's Sex Offenders Registration Act (SORA) on several constitutional grounds. On March 31, 2015, U.S. District Court Judge Robert Cleland issued an opinion finding certain provisions of SORA unconstitutional and ordering their enforcement enjoined.

The plaintiffs successfully argued that many of SORA's provisions should be ruled void for constitutional vagueness. For example, SORA makes it a crime for a registered sex offender to work, loiter, or reside within a student safety zone. The statute defines "student safety zone" as the area that lies 1,000 feet or less from school property, but SORA provides insufficient guidance for how the 1,000 feet zones should be measured – such "as the crow flies or as people actually travel."

Judge Cleland also found SORA's prohibition against registered sex offenders "loitering" within 1,000 feet of school property unconstitutionally vague. SORA defines "loiter" to mean to remain for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors. The plaintiffs successfully argued that it was unclear whether they were permitted to attend parent-teacher conferences, go to a school movie night, or take their children to a school playground on the weekend.

The plaintiffs also argued that SORA's geographic exclusion zones infringed on their fundamental constitutional right to participate in the education and upbringing of their children. Although the Judge found that Michigan has a compelling interest in protecting minors from violence and sexual abuse, the unconstitutional vagueness of the geographical exclusion zone prevented him from evaluating whether the loitering ban infringed upon the plaintiffs' parental rights. Judge Cleland wrote that if the Michigan legislature amends SORA to clarify its vague provisions, the court could find in favor of the State on this issue.

This decision should not dramatically impact current practices in most school districts, as most school districts already permit parents of students who are registered sex offenders to participate in teacher-parent conferences, and participate in meetings about their students with teachers and administrative staff. Those districts that did not permit a parent sex offender to attend a school event in which his or her child was a participant will have to permit such attendance under Judge Cleland's ruling. However, a district can still bar registered sex offenders from volunteering at their school. In addition, a district can still contact law enforcement officials to investigate suspicious persons "loitering" around schools. However, law enforcement officials will no longer be able to remove such individuals from areas around schools based upon their status as registered sex offenders.

If you have questions regarding this case or other school law issues, please contact Eric Griggs at (616) 608-1147 | egriggs@clarkhill.com or another member of Clark Hill's Education Law group.