The Littlest Felons
Like most every afternoon after school, Joshua Foster makes his way down the three skid-guard-covered steps of the orange school bus. With his little brother Isaiah, he walks the 30 feet of concrete driveway to his home, a modest pink bungalow on a busy corner lot in Boynton Beach.
Joshua, gangly limbed and big-eyed, is a typical 11-year-old in many ways. He likes to play with Isaiah, enjoys surfing the Internet, and adores books and animated videos. He fusses when he's tired and can be as stubborn as a broken cork in a bottle.
But Joshua isn't like most boys his age, and it takes only a few moments after he enters the family living room to understand how autism and cerebral palsy affect him. He bobs and weaves as he walks, a symptom of the cerebral palsy that gave him a shortened left leg and an uncoordinated gait. He hums quietly to himself as he heads for the couch where his mom and dad, Darlene and Salah Foster, are seated. She's got big, brown eyes, dancing as she talks in a rapid-fire cadence. He's slim with short hair and a black mustache, and compared to his wife, he's downright laconic.
"He's always had the balancing issue," Darlene says of Joshua. "He walks labored, but we're always... whoaaaaa!" she whoops as she puts her arms up. Joshua plops between them, arms and legs flailing like a windmill. He cuddles next to his mom and lays his legs across her lap. He gazes at nothing in particular, as though he's trying to recall the details of a story.
"This is the autism," Darlene explains matter-of-factly. "Our big issue with Joshua is that he's always crawling up on people's laps and cuddling with them. What can I say? He's a cuddly kid."
So it might be hard to believe that this is the same boy whom school police charged in the fall of 2003 with battery on a School Board employee, a felony. At age 9 barely able to speak or take steps without a walker Joshua was accused of knocking a school aide to the ground and pummeling her.
As outlandish as the charge might have seemed, Joshua and his family found themselves swept up in the prosecutorial machine dedicated to "zero tolerance" of school crime. The crackdown on kids in schools has happened across America, but Palm Beach County is particularly harsh, according to civil rights watchdog groups. State legislators, administrators, school police, and prosecutors now labor under a system whose unspoken mantra seems to be, "It takes a village to criminalize a kid."
As the juvenile crime rate rose in America during the 1980s, so also grew the belief that a generation of "superpredators" was creating havoc in school. A simmering stew of criminals-in-the-making who were believed to possess no conscience and no mercy, these kids would not respond, many police authorities and lawmakers said, to rehabilitation. That outlook seemed substantiated in the 1990s with a number of highly publicized school shootings even as juvenile crime rates were actually falling throughout the decade.
But while the feared army of superpredators never evolved from the "crack babies" of the 1980s, the irrational fear of children marched ahead, along with a philosophy of zero tolerance in some schools that's turned childish pranks into felonies and youthful indiscretions into hard time behind bars. In many of today's locked-down schools, plinking tin cans with pebbles is imagined as hurling deadly missiles and mooning is labeled a sexual assault.
"Zero tolerance used to be applied only to bringing guns to school," says Barbara Briggs, an attorney with the Palm Beach County Legal Aid Society. "Now it's for any misbehavior, which is almost like zero tolerance for kids, because kids make mistakes."
In March this year, the Advancement Project, a Washington, D.C., civil rights watchdog group, issued a report examining arrests in school systems in Denver, Chicago, and Palm Beach County. The latter was chosen for a closer look because of a previous series of reports by the National Coalition of Advocates for Students and the Community Alliance for Reform in Education, which found that the county's black students were more likely to be suspended than fellow white students.
Established in 1984 with just four officers, the Palm Beach County School District Police Department has grown to 184 sworn officers (20 percent of whom are black), maintains a K-9 unit, and cruises in a fleet of squad cars. Supported by an annual budget of more than $8 million, the department has arrested thousands of kids in the past five years.
Reflecting the national trend, the department's original emphasis on prevention and helping at-risk students morphed into something more aggressive through the 1990s. In 1997, the Florida Legislature mandated that all school districts adopt a policy of zero tolerance for crimes involving drugs, firearms, and other serious offenses. Violations required expulsions for up to a year. In 2000, 13-year-old Nathaniel Brazill shot and killed his seventh-grade teacher in Lake Worth Middle School after being sent home for throwing a water balloon. The shocking incident heightened the role of the school police as enforcers.
This crime-fighting mentality has especially hammered minority and disabled students in the district's 24 high schools, 26 middle schools, and 93 elementary schools. Black students account for almost 30 percent of the district's roughly 170,000 students. During 2003-04 school year, however, they accounted for a hefty 64 percent of the 1,105 school-based arrests, according to the Advancement Project's analysis issued last spring.
"We call it schoolhouse to jailhouse," says David Harris, a consultant in Palm Beach County working with the Advancement Project. "You get suspended, you get a rap. The next time, you get arrested, you get a record. They might clean it up a bit, but you're on probation. Then, if something happens outside of school, you're arrested and then you're in juvenile hall. It's how our kids are being tracked from a very early age."
Veiled in the privacy that shrouds school and juvenile court records, most students who are swallowed up in the maw of zero tolerance remain anonymous. Every so often, however, a case is so outrageous, it makes headlines. Such was the saga of Anthony Laster, a 15-year-old with an IQ of 58 who had no criminal history.
In December 1998, Laster was charged with robbery for grabbing $2 out of a classmate's pocket. Palm Beach County State Attorney Barry Krischer threw the book at the mentally retarded boy and charged him as an adult. He sent Anthony to jail for seven weeks, including Christmas, before the teen could make bail. That was no easy task: His grandfather, who had raised him, had died earlier that year, and his mother had passed away a few weeks before the arrest. He never knew his father.
Once the case was publicized, critics roasted Krischer for the draconian measures, and several months later, he dropped the case ostensibly because the victim changed his testimony.
Krischer's actions weren't a fluke; he made his attitude about children and crime clear in an opinion piece published in the Palm Beach Post in 1998: "I make no apology for my aggressive stance in prosecuting violent juvenile crime for what it is, an adult crime committed by a juvenile."
That Palm Beach County's elected prosecutor saw no difference between the likes of Anthony Laster and true, violent criminals underscores how heartily zero tolerance has been embraced.
Ronald Alvarez, a longtime judge in Palm Beach County Juvenile Court, has grown so perplexed with these picayune prosecutions that he told the Post, "My court has become, in essence, the principal's office."
Things are different in Broward County if only by degree. The Broward County School District doesn't maintain a full police department, depending instead upon a smaller Special Investigative Unit for looking into misdemeanors and felonies. Patrolling is also done by "resource" officers from local police departments. Broward adheres to zero tolerance nevertheless, which contributes to a suspension rate for black students that's three times higher than for white students, according to the Advancement Project.
This fall, the Advancement Project and the National Association for the Advancement of Colored People held a statewide series of public hearings about school policing. The hearings were spurred by an especially egregious example of school policing this spring: A 5-year-old black girl at a St. Petersburg elementary school was arrested, handcuffed, and shackled during a temper tantrum.
On a rainy Sunday afternoon in September, David Harris, an advance man for the hearings and a consultant for the Advancement Project, stands in front of a large group of black teenagers and parents seated in the sanctuary of the Daughter of Zion Seventh-day Adventist Church in Delray Beach. With a voice as soothing and measured as a hypnotist's, Harris acts as a liaison between the Advancement Project and South Florida organizations. Harris, who is black, keeps his hair stubble-length, and his wire-rimmed glasses and dark suit give him an all-business look.
"Where do you have to deal with police the most?" Harris asks. It's not rhetorical; he's come armed with statistics.
There's some mumbling among the 40-odd kids before him. "School," one shouts, and then others chime in in agreement.
"That's because we have a paramilitary operation that runs in the Palm Beach County School District that's headed up not by the Sheriff's Department or any municipal police department," Harris declares.
"What's it like for our black kids in school?" he asks. "We have 53 percent of the suspensions and 70 percent of the arrests. And as far as they're concerned, the earlier the better, because although we're 30 percent of elementary-school students, we're 70 percent of the suspensions in elementary school. Our babies! The track begins."
The first step in changing this, Harris says, is for parents to get on the student advisory councils at their children's schools. "We have to demand that those [councils] issue equity report cards for schools that give the number of suspensions and who's being suspended. We have got to get that information, and it has to be made public."
Suspensions and arrests contribute to the poor graduation rate of black students in Palm Beach County, a paltry 32 percent. "Look to the person at your left and at your right," he intones gravely. "You can say to yourself, 'If I graduate, the two people sitting next to me aren't going to graduate. '"
The vast majority of arrests of black kids in the county's schools are labeled as assaults, usually fights between students, or "miscellaneous," which, for many black students, Harris says, means talking back to a police officer.
School officers filed 4,193 police reports during the 2003-04 school year, the latest data available on the department's website. It conducted 14,138 investigations during that same year. New Times made numerous requests for interviews with school police officials Chief James Kelly and Capt. James Cummings. Neither responded.
But District Superintendent Arthur Johnson concedes that there's a problem here. "We certainly have a higher incidence of discipline and arrests of African-American male students," Johnson says. He says he has personally informed school police that their job is to deal with crime and that they should leave day-to-day discipline to the school administrators. "At least in some cases, incidents are escalated to arrest where they don't need to be, because the school administrator might be relying too heavily on the police officer to do discipline. Police officers do what police officers do: They tend to go out and arrest people."
Johnson advocates better training for school cops. "We have to put the data in front of the decisionmakers, whether they're law enforcement officers or administrators, with the understanding that this is a malady that we need to address," he says. "Do police officers or administrators whether black or white, male or female look at African-American males differently than they look at somebody else?"
Harris, like everyone who believes zero tolerance in schools has gone too far, has a ready gallery of the absurd.
John, a student in the Belle Glade area, had gotten permission from the principal to wear a hat to cover an infection on his scalp, according to a case cited by the Advancement Project study. The assistant principal, unaware of that agreement, confronted John in the hall about the no-hat rule in school. They got in an argument and were soon joined by the principal, who tried to snatch the hat off John's head. Unfortunately for the boy, he lifted his arms and made contact with the school official. He was charged with assault on a School Board employee, a felony.
And then there's Ricky, who was arrested and charged with a second-degree felony for throwing a deadly missile on Halloween about five years ago at Pahokee Middle and High School. The specifics? "Ricky had an egg in his pocket. He wasn't throwing it; it was in his pocket. Now, in my day, if I'd gotten busted with an egg in my pocket, the teacher would have" Harris whacks his pocket with an open hand "and I'd have walk around school all day with egg on my pants. But we have folks who just don't have a clue, and they don't know how to deal with our young people."
Juvenile crimes like these aren't simply wiped off the record anymore at age 18. "In the past, that almost used to be automatic," says Briggs, the Legal Aid attorney who represented Rick and many other juveniles from low-income families. The state legislature changed that in the 1990s. "Now you can request it to be sealed at age 23, provided you have only one conviction. The big-picture impact is that charges and convictions on a child's record really impact their entire future whether they can enroll in the military, attend college, or even get a job."
When Joshua Foster got off his school bus on that December afternoon in 2003, he didn't act much different from the way he'd been acting that morning. He arrived home, however, a newly charged felon. To his parents, such a development was in the same realm of likelihood as their son being abducted by an alien spacecraft for a trip to Mars.
The Fosters had moved to Florida from Bloomfield, Connecticut, in early 2001. They'd been adamant that Joshua be mainstreamed in the classroom with other kids his age. The 9-year-old black youngster began third grade at J.C. Mitchell Elementary in Boca Raton, which has a predominantly white student body. The school year didn't start out well.
Because of his disabilities, Joshua was assigned an aide a paraprofessional or, in the shorthand argot used by the Fosters, a "para." The principal had assured the parents that they'd "love her."
"The principal thought and I don't know why people think like this but she thought it would be a good match because the para is an African-American and we're African-American," says the boy's father. The Fosters and the para, however, never clicked.
"We saw a big difference in Joshua," his mother says. "He used to be the first one to get on the bus. He stopped wanting to go. He'd say, 'No school, no school.' He was chewing on his shirt a lot. He refused to get off the bus [at school]."
Within the first month of school, the Fosters requested a new para several times. The principal finally agreed to do so, but only after the Christmas break.
That would prove to be too late for Joshua.
After the bus let Joshua off around 3 p.m. December 5, Darlene and her children drove to Ashley's school, where she got out at 4. When they returned home, close to 5 o'clock, the school principal had left a message. There had been an incident with Joshua that day, she said, and he had been suspended for three days, so he shouldn't come to school on Monday. Darlene rifled through Joshua's backpack and then reread his "communications notebook," which the school uses to tell the Fosters about Joshua's day. She found no suspension notice, no indication other than it had been a stellar day for the 9-year-old.
Darlene called the school and left a message that Joshua would be coming to school on Monday. But she continued to make calls, and eventually the principal answered, and she related the para's version of events. (The principal retired at the end of the last school year and could not be reached.)
Joshua's class had lined up to go to music class, the last period of the day. The para handed Joshua a long umbrella she was carrying, for reasons she never made clear. (The students would not have been exposed to rain.) The para quickly had second thoughts about giving the uncoordinated young boy an umbrella with a pointy end, and she snatched it out of his hands. Joshua then jumped on her and knocked her to the ground, the para told school police.
The attack as described beggared the Fosters' imagination. "She was on the floor and he was punching her and kicking her, and she had to call for the regular ed teacher to come and pull Joshua off her," Darlene says the principal told her.
"Mind you," Salah says, "this is a kid who can barely walk. He needs the walker to hold himself up."
"How does he knock over a grown adult and attack that person?" Darlene marvels. "He's working on pushing and pulling in therapy because he doesn't know how to push a door open."
Not only that but the para's actions weren't consistent with the behavioral support plan the school had developed for Joshua. That directed that nothing was to be snatched out of Joshua's hands. "He can't move on if he doesn't complete something," Darlene says. "That's the autism. We told the principal, how is it that he can get suspended for what's on his behavior plan?"
Protocol called for him to be taken to the police station, the principal told the Fosters, but she'd convinced the police to let the boy ride home on the bus. The police officer, who never even saw Joshua, charged him with assault on a School Board employee. He made no attempt to contact his parents; the officer later told the Fosters that that was the school's responsibility.
The truly preposterous was yet to come, the Fosters say.
They requested the police report to find out who was present during the incident. As it turned out, none of the students witnessed anything, nor did the regular teacher, who told police she was in the hallway escorting the other children.
The officer sent the paperwork to the State Attorney's Office. "He said he didn't want to do it but that in this case he had no choice," Salah says. "He said if the school is adamant about pressing charges, he has to do it. But there was no in-depth investigation. You'd think you'd want to go to the school and at least look at the child. Just looking at him, you know he wouldn't be able to do what she said he did."
As far as the suspension went, the written notice the Fosters eventually received stated that Joshua had had an opportunity to tell his side of the story and that, based on that and other evidence, he'd been suspended.
Appalled, Darlene told school officials: "This letter is an insult! For you to tell me that Joshua had a chance to tell his side of the story and he can't even talk!?"
The Fosters' attorney, Briggs, figured she'd seen it all and didn't think that even the bulldoggish State Attorney's Office would prosecute this case. She was wrong.
Two weeks after the incident, a representative from the State Attorney's Office called and told them that the SAO would proceed with criminal charges unless the family wanted to work out a plea bargain. Joshua would be eligible to attend a weekend program for first-time juvenile offenders, during which participants listen to inmates tell their stories. The kids then write letters of apology to their victims and state that they won't commit the same offense again.
"I told the woman that he wouldn't be capable of completing the requirements of that plea bargain," Darlene recalls. Could she accompany her son during the weekend? she asked.
"This isn't a mommy-and-me weekend outing," Darlene says she was told. "This is serious business." Breathing steam through her nose, Darlene told her that Joshua had cerebral palsy and that, cognitively and developmentally, he just couldn't fulfill the requirements of the plea bargain. "Plus he's incontinent, so unless you're going to change his underpants and feed him..."
The voice at the other end of the line plowed ahead. "Yes or no, are you going to take the plea bargain?" the woman asked. Darlene declined, and the state attorney moved forward with prosecuting this pint-sized menace to society.
After about two months, Briggs was able to get the SAO to drop the case after convincing the School Board attorney not to support prosecution. It took the Fosters another half year to get the incident expunged from Joshua's school record.
Barbara White's smile reflects more bitter irony than amusement a not surprising feature given that she's been an attorney with the juvenile division of the Palm Beach County Public Defender's Office for the past 12 years. When she's not in court representing children from low-income families, she works from a brightly lit corner office that overlooks northwest West Palm Beach. A child's painting on plain white paper hangs above her desk: "I Love Barbara," the caption reads.
"We're not allowing children to grow up and make mistakes," says White, whose long brown hair cascades past a teardrop-shaped face. "Instead, we criminalize their mistakes. It's becoming a very devastating thing in this county has been a devastating thing."
From her vantage point, the reasons behind the drive to criminalize kids are obvious.
"We have a School Board police department that is there, is immediate, and many times needs to justify its existence," White asserts. "They [consequently] make arrests that, if a police department outside the school district were called, those police officers would probably say: 'Are you crazy? Why are you wasting my time? This child is in crisis, and you want me to arrest him?'"
Sometimes, teachers push for an arrest.
"There's a myth that the juvenile justice system can provide services that the school system doesn't have," White says. "That is so not true. To bring a child into the delinquency system is probably one of the worst things you can do. They're not going to get the services they need."
For example, in the cases of battery on a School Board employee, which at times can simply involve kids flailing their arms during a mental health crisis, many teachers have told White that they believe children will get help if they press charges.
"That's a pretty consistent statement that comes from teachers," White says. "I don't know where that originated or why it originated, but there are many teachers who've been told that." She laughs acidly. The ironic smile appears.
Her pet tale of the absurd involves a middle-school boy who was horsing around on the last day of school in 1999. He jumped up on a cafeteria table and launched a can of Silly String which his mother had bought for him on their way to school. Some of the string landed on a teacher, and the boy was charged with battery on a School Board employee. Lawrence Buck, formerly an attorney with the Public Defender's Office, handled the case and recalls plea bargaining the felony charge down to a misdemeanor.
Trivial though many of these cases seem, Krischer, the county's SAO, has been more than eager to prosecute. The SAO has for years referred as many cases as it can to the adult court, a practice called "direct filing," which has left the juvenile court system handling more trivial cases. (Krischer did not respond to an interview request by New Times.)
White doesn't recall seeing first-time offenders of petty crimes in court ten years ago. Now, such cases perhaps a student taking something out of a classmate's locker or getting into a fight can be the beginning of an ugly path. A first-time offender on probation could violate probation if he misses school, is tardy, or gets suspended. A petty offense can mean time in a Department of Juvenile Justice residential program. "There's no real therapeutic services going on there," White says.
Briggs describes the Department of Juvenile Justice as "a punitive agency all the prevention programs have dried up."
Such punishment is clearly pointless for, say, the 13-year-old boy whom Briggs represented after he was arrested for hurling a deadly missile at Bear Lakes Middle School in West Palm Beach about six years ago. He and several other boys had been throwing stones at soda cans on the school grounds to see who had the best aim. The boy, hyperactive and learning disabled, could not read even though he was in the seventh grade. "He'd given up on classes, as one might imagine, if you can't read," Briggs says. "I think this was just a way to get him arrested and get him off the campus." Under this sweeping definition, Briggs offers, every kid playing softball on school grounds is fair game for felony charges.
If a case goes as far as the trial stage, judges are often bound by the letter of the law in deciding the case. (Juries are not used in juvenile court.) A couple of years ago, Judge Alvarez heard the case of a 15-year-old boy who had been charged with possessing a weapon at school. The boy had brought a steak knife to school to protect himself from two bullies. Thinking better of the scheme, he turned it over to the principal and was promptly charged with weapon possession. Under the law, Alvarez, who did not respond to a New Times request for an interview, found him guilty and sentenced him to probation but did so under protest.
Peeved over the case and others like it, Alvarez fired off a letter to school district officials, quoted in the Post: "Has the child learned through the response of the school that he suffers today only because of his ultimate honesty?"
Dirwin Bother doesn't smile very often these days. He slumps down in the sofa in the small house in Riviera Beach where he lives with his mother, Thomasina Lane, who perches at the other end of the couch. The black teen keeps his hair trimmed short, and his upper lip sprouts the slight mustache of a 15-year-old going on 16 though he's still only in eighth grade. He's stocky and big and wears a baggy gray jersey, saggy denim shorts, and big sneakers.
This has not been a good fall for Dirwin. He'd transferred from the Roosevelt Full Service School in West Palm Beach, where he was having trouble with certain teachers, to Gold Coast Community School in the same town. Here, he was supposed to eventually catch up to the tenth-grade level where he belonged.
But on October 11, Dirwin and another student were late for science class. They'd gone to the principal's office, he says, to ask for tardy slips to be let into class. But the office was busy, and they were told to go to class and they'd be called later. When the pair arrived at the classroom, the teacher allowed the other boy in but closed the door on Dirwin. The two began a shoving match, which Dirwin claims ended with his being pushed against the chalkboard.
The school police soon arrived, and Dirwin was charged with battery on a School Board employee. His only previous run-in with the law was outside of school when he was caught out past curfew hours after Hurricane Frances last year.
Dirwin is a bright kid, and he was getting B's at the beginning of this school year. He was even selected as president of the school's Achievers Unlimited Club. On the other hand, he can be surly, and he's probably not any teacher's idea of a prize student. He admits he has a quick temper and lives by the credo, "I treat you like you treat me."
With the arrest, which immediately brought a ten-day suspension, he's now in academic quicksand.
To Dirwin's mother, it seems as though he's being driven out of school, bit by bit.
"Every time this child was going to school, he was getting suspended," she says of her son's time at Roosevelt. "Say he went to school on Friday he'd get suspended for two days, go back on Wednesday. They'd call me at work and say, 'Dirwin didn't wear a belt today, and we need to send him home.' They're supposed to wear dress pants and a dress shirt. They were always finding excuses to send him home.
"How can you learn if you're always suspended?" she shrugs. "They need to find another way to discipline kids. They're making them feel angry all the time, and that's just going to lead to jail or [being] dead."
Lane might sound like an overprotective or naive mother, but White understands what she's saying. "It's a tool to get the children who are a 'problem' out of school, and I'm not afraid to say it," she proclaims. "You send them to [the juvenile justice program] and let them deal with the problems."
Thus far, the elected School Board hasn't addressed the sledgehammer approach of zero tolerance, which so disproportionately affects black and disabled students.
"Unfortunately, the school district is in massive denial about this issue or else thinks if we don't talk about it, it'll go away. I'm not sure which one," says Deborah Robinson, a black School Board member who also serves as an officer of a local NAACP chapter. A physician and mother of three sons, she wears wonkishly large glasses on her oval face.
School policing is an issue close to her heart.
A friend of her son's was suspended and charged with having an explosive device in Suncoast High School in Riviera Beach. Horsing around, a student had put dry ice in a liter soda bottle, added water, then handed it to another boy in the cafeteria. Startled by the fizzing, the second boy dropped the bottle, and it split noisily.
"He was suspended from school for supposedly having an explosive device in school," Robinson says. The boy ended up doing community service. "I just thought it was ridiculous for us to be expelling him. I think he should have written a dissertation about the chemical reaction, you know? But to call it an explosion?"
The problem, as she sees it, is that if all you've got is a hammer, everything looks like a nail.
"What I'm told by [school police] is that when a police officer is called, they generally walk in with the idea that they're being called to arrest," she explains. "Why else would you call a police officer?
"If you compare the job description of the school principal to the school police, it's obvious who has the most work to do. I think the administration has many more things they have to do that keep them from being immediately responsive to a situation. Often, the school administration will call the police for backup or assistance for an episode that's moving out of control. And I think all too often, some of the school police walk in and say 'This is an arrestable offense, and therefore we will arrest. '"
Almost two years ago, Robinson met with Krischer and Carey Haughwout, the county's public defender, to talk about the arrest-rate disparity between black and white students.
"The public defender definitely thought there was an issue," she recalls, then adds with a laugh, "The state attorney, after we talked, basically stopped disagreeing." Krischer and Haughwout agreed that Robinson would arrange a larger meeting that would also include the School Board, school administration, police, and others. "That meeting has yet to take place," she sighs. "About every three months, I say, 'Hey, when are we going to schedule that?'"
The school district might find the pressure building in 2006. The Advancement Project's Harris says that his group and the Florida NAACP are putting together an action plan based on the fall public hearings. "I think a big step forward was getting the NAACP membership involved," he says.
Darlene Foster considers how easily her son, the most unlikely of felons, was swept up into the zero-tolerance machine. She wonders about other at-risk kids.
"It was very frustrating that this could happen to us," Darlene says. "My kid doesn't have a smart mouth, but he does have a disability. What about a kid who has a disability and does have a smart mouth? How is he going to handle himself around a police officer?"
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