August 22, 2016 | Commentary on Overcriminalization
John-Michael Seibler is a legal fellow in the Heritage Foundation's Center for Legal and Judicial Studies
Nathan Howe is a member of Heritage's Young Leaders Program
What do burping, perfume, and throwing Skittles all have in common? They have all gotten kids arrested at school.
Classroom antics that once would end in a trip to the principal's office, detention, or, at worst, a suspension now end in a ride in a police car and an arrest record. The consequences can be grossly disproportionate to the conduct.
In New Mexico, a 13-year-old boy was arrested after disturbing his physical-education class with fake burps. The charge: violating a state statute that criminalizes interference with a school's "educational process" by "any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of the property, building or facility." An appeals court ruled that the police officer could not be held liable for the arrest, though a brief dissent argued that prior case law required "a more substantial, more physical invasion" than momentary "noise or diversion" - like fake burps - to find that school operations are jeopardized to a point that justifies arrest.
In Texas, Sarah Bustamantes, 12, was also cited for "disrupting class." Why? She sprayed perfume on her neck after classmates teased her, telling her that she smelled. They then complained about the smell of her perfume - and the teacher called the police.
Officers arrested Alex Stone, a 16-year-old South Carolina high schooler, after he completed an in-class writing assignment the first day of school. Alex wrote, "I killed my neighbor's pet dinosaur," and "I bought the gun to take care of the business." The teacher called the police, who searched his locker and person for weapons. They found none but arrested Alex anyway for disorderly conduct, claiming the boy was being irate. Alex's mother noted: "First of all, we don't have dinosaurs anymore. Second of all, he's not even old enough to buy a gun."
In 2014, the government charged Christian Stanfield, a 15-year-old with a learning disability, with disorderly conduct. After his teacher failed to stop other students from harassing Stanfield, he recorded the bullies and brought the recording to the attention of the school officials. They called the police on him instead - for recording others without their permission. The charges were later dropped.
In Louisiana, a bus driver told an eighth grader and a couple of other students to stop throwing Skittles at one another on their ride home. The next day, a police officer cuffed the student in the middle of a social studies test and "dragged" him from the classroom. The boy spent six days in a juvenile detention facility, charged with "interference with an educational facility" and "battery." A judge subsequently asked: "Am I to get this right? Are we really here about Skittles?"
2014 (the last year for which data are available) marked a historically low number of juvenile arrests for violent crime. Yet these cases illustrate an increasing number of criminal arrests for disorderly conduct.
A disastrous (and perhaps predictable) consequence of introducing children to the criminal justice system for this level of conduct is that minors have to cope with the stigma that attaches to a brush with criminal law enforcement; it can follow them for the rest of their lives. Studies show that a "first-time arrest during high school nearly doubles the odds of high school dropout, while a court appearance nearly quadruples the odds of dropout."
Disorderly conduct such as scribbling on a desk or a Skittles fight certainly falls outside the realm of conduct most people would assume to be criminal. As Kady Simpkins, a lawyer for Sarah Bustamantes, said: "They're kids. Disruption of class? Every time I look at this law I think: Good lord, I never would have made it in school in the U.S. . . . I don't know how these kids do it, how they go to school every day without breaking these laws."
Even when an arrest is not made, police involvement in harmless conduct can have lasting negative consequences. In Collingswood, for example, police were called into a class party in June when a third grader said something about brownies that another child said was racist. Police questioned the boy, then his father, and reported the incident to the New Jersey Division of Child Protection and Permanency.
The boy's mother said the questioning "intimidated" and "traumatized" her son. Superintendent Scott Oswald told reporters that "on some occasions over the last month, officers may have been called to as many as five incidents per day."
Teachers and parents must accept responsibility to discipline kids for minor misbehavior themselves. The potential costs of an unwarranted arrest of a student in class are too high, and law enforcement officials have real crime to deal with.
Contact the writers via www.heritage.org.
This piece first appeared in The Philadelphia Inquirer.