Malcolm Calvert was in 7th grade when he got into an argument with his 6th grade friend on a school bus and hit him with a Tootsie Pop.
“I hit him with it on his head,” recalls Malcolm, who was a student at Lanier James Alternative School in Hallandale Beach, Fla., when the Tootsie Pop incident happened in 2011. “They handcuffed me and took me off the school bus.”
Malcolm, now 17, was arrested and charged with misdemeanor battery. So what was essentially a minor scuffle got handled quite formally through the court system. Malcolm’s attorney, Shannan Holder, says the boy Malcolm hit and that boy’s dad had to go to court, be put under oath, and say, “We don’t want to press charges for this, it was a piece of candy.”
The state attorney’s office dropped the charge. But the arrest will stay on Malcolm’s record. That means when Malcolm applies for a job and the employer runs a background check, the employer can see he’s been arrested for battery. “That arrest will always be on his record,” Holder says. “It will always follow him.”
Students can be arrested in Florida schools, even for minor infractions, because of the state’s “zero tolerance policy.” It’s a well-intentioned piece of legislation that was supposed to send a message that Florida schools would not tolerate any bad behavior – specifically criminal behavior.
Critics say the policy has produced in some Florida schools a culture of arresting students. Misdeeds that once landed kids in detention now land them in the criminal justice system. Gordon Weekes, Chief Assistant Public Defender for the Juvenile Division in Broward County, says the crackdown has gone too far.
“The reality is that behavior that occurs in school today is the same behavior that occurred 20 years ago. Children are still pulling fire alarms, throwing spitballs, being disruptive in the hallway,” Weekes says. “That behavior should not be criminalized, but because of zero tolerance, we have seen those types of cases come to this office because those children have been arrested.”
Explaining Zero Tolerance
Zero tolerance policies were adopted in schools throughout the country in response to fears over school violence such as the shooting at Columbine high school in 1999. Zero tolerance meant exactly that; there was zero tolerance for things like bringing drugs or weapons to school.
Under zero tolerance, there were more than 28,000 school arrests in Florida in 2005.
Florida lawmakers recognized that might be too many. In 2009, the Florida legislature relaxed the state’s zero tolerance policy and encouraged schools not to arrest students for misdemeanor offenses. But it wasn’t a mandate. It was just a recommendation.
By last year, the number of school arrests in Florida had dropped to 13,780, according to Florida Department of Juvenile Justice data. However, there’s evidence that the culture of arresting students continues in some schools. The vast majority of those arrests – 9,359 students, or 67 percent — represent students arrested for misdemeanor offenses.
About 40 percent of all the student arrest cases were diverted out of the criminal justice system as students completed some community service or paid a fine if they damaged property. Another 25 percent of the student arrest cases were never filed in court, generally because students were arrested without having violated the law.
For example, many students were being arrested for infractions such as disorderly conduct, which can include talking back to a teacher, being disrespectful and any other behavior that can be considered “disorderly.”
The zero-tolerance mindset gives principals little discretion to handle situations on a case-by-case basis. Wansley Walters, Secretary for the Florida Department of Juvenile Justice, recalls a case when a Miami-Dade honors student packed a knife in her lunch box. The young girl was arrested on a weapons charge.
“Because there was zero tolerance, no one could advocate on that child and say, she is not a threat to anyone,” Walters says.
Walters says the current approach to zero tolerance means the policy is being applied very unevenly across the state. Some schools are more likely to make arrests than other schools.
“I assure you that for every child that’s arrested in a school, there is another child in another school that wasn’t arrested for the same thing,” Walters says.
Students with disabilities and black students are arrested disproportionately. Last year, black students made up more the 50 percent of the school arrests. But black students are more likely than white students to see their cases dismissed. Experts say that means many black students are being arrested for behavior that the criminal justice system doesn’t consider “criminal.” Still the arrest stays on their record.
“You Can’t Say All Fights Are The Same”
Evan Paulk, 14, remembers going into the Escambia County Police Department to get fingerprinted and take his mug shot.
“I just didn’t feel comfortable there,” Evan says. “I can’t explain it. It was scary. Not somewhere I ever want to go again.”
He was arrested in September of this school year after standing up to a student who was bullying his friend. But Evan says he wasn’t trying to get in a fight.
“I’ve seen fights where both guys are going at it and both of them want to fight,” Evan says. “You can’t just say all fights are the same. I was pretty much attacked.”
He doesn’t think his school fight should have resulted in an arrest. But he was arrested and charged with “affray” for fighting in a public space.
Evan is an honors student at Pensacola High School. His principal, David Williams, says he’s an “outstanding kid.”
“I have nothing but good things to say about him,” Williams tells StateImpact Florida. But Williams says he doesn’t tolerate any violence at his school, and that Evan made a mistake by joining the fight.
“He got arrested because he was a willing participant. He was willing to fight,” Williams said. “There were options to walk away or handle it in some other way.”
In the end, the court decided not to go forward with the case and a court-appointed mediator decided Evan’s only penalty would be to write an apology letter to his school. But the fact that he was arrested for affray will stay on his permanent record.
Charges Dropped, Record Remains
It’s that permanent record that has critics of Florida’s zero tolerance policy most alarmed. When students apply to jobs or to college they have to acknowledge they’ve been arrested.
Juvenile records are supposed to be kept private. But public information laws in Florida allow companies and individuals to request all arrest records. And what you see when you request those records is the word “battery” — not “threw a lollipop.”
Malcolm Calvert’s dad, Ernest Saunders, says his son’s case with the Tootsie Pop should have been handled differently.
“This is something that should have been sent to the principal’s office and got taken care of instead of giving him a record,” Saunders says. “To be arrested and put in handcuffs, I don’t think that’s fair for any young kids.”
Saunders is worried that the experience of getting arrested may send Malcolm down a bad path.
“Sometimes they feel like ‘okay, this don’t scare me anymore. I just went to a detention center and next thing you know, they got this mentality that they tough and so sometimes they feed into it this way.’”