Schoolyard Felons: Missouri's New Criminal Code and Its Impact on Schools.

• Author: Moyer, Michele L.
• Position: NOTE

1. INTRODUCTION

   On April 24, 2014, Missouri lawmakers sent former Governor Jay Nixon the first comprehensive rewrite in decades of the state's criminal laws. (1) The substantial revisions to Missouri's criminal code finally took effect on January 1, 2017, (2) "after years of vetting, 30 public hearings... and a two-year waiting period to work out kinks before implementation." (3)

   The most significant changes dealt with penalty provisions, such as "tougher sentences for drunken drivers and the elimination of jail time for first-time [drug] offenders convicted of possessing 10 grams or less of marijuana." (4) Other pivotal modifications cracked down on crimes against children by "adding incest as an aggravating factor in child sex abuse cases and increasing the number of felony child molestation charges." (5) Additionally, there were a few revisions that could have a noteworthy impact on Missouri's school districts. (6) One such change involved the enactment of a new statutory structure that implements a class of misdemeanors and felonies under state law. (7) By adding a Class D misdemeanor and a Class E felony, the legislature intended to develop a more evenly-graduated range of punishments for both misdemeanors and felony convictions or pleas. (8)

   Although developed with the best of intentions, this change potentially impacts Missouri's students and has stirred controversy and unrest in school districts statewide. Namely, the new law categorizes third-degree assault and certain forms of harassment as Class E felonies. (9) This revision sparks apprehension because, if the victim suffers emotional distress (10) as a result of the harassment, the "perpetrator" could be charged with a felony. (11)

   School districts' concerns are valid considering the law's loose definition of harassment could subject schoolchildren as young as five years old to harsh punishments for simply calling their classmates foul names. (12) Another fear under the new law is that students who get into fights could face felony charges. (13)

   Following the legislation's enactment, school districts across the state began warning parents that the new levels of felony assault and harassment could likely subject students involved in rough-and-tumble grade-school altercations to felony charges. (14) School administrators cautioned students and their parents to seek proper resolution to problems with classmates rather than taking matters into their own hands. (15) Under the new law, a rash decision to fight on the playground could potentially have a detrimental impact on a student's future. (16) A simple scuffle could follow a child for the rest of his or her life if a prosecutor decided to charge the student under the new law.

   The possibility that schoolchildren could be charged with felonies raises concerns among school leaders that the revised legislation might fuel the school-to-prison pipeline, "a disturbing national trend wherein children are funneled out of public schools and into the juvenile and criminal justice systems," (17) which disproportionately impacts minority students. (18)

   An examination of the federal Safe Schools Act of 1994, events leading to the passage of Missouri's Safe Schools Act, the effect of zero tolerance policies (19) enacted by schools, and the state's anti-bullying statute (20) provide insight into the concerns expressed about these criminal code revisions. The changes, although implemented to eliminate confusing and repetitive laws, have caused panic among school administrators statewide due to their potential to hyper-criminalize behaviors that should not be categorized as felonies. (21) These amendments to Missouri's criminal code are likely to funnel once innocent children into the criminal justice system at an early age for simply fighting on the playground or calling a classmate inappropriate names.

2. LEGAL BACKGROUND

   Ideally, students wake each morning excited about spending the day in the classroom--perhaps continuing an adventure with Huck Finn, building a solar system for the science fair, or playing soccer at recess. Unfortunately, this is far from reality for many students. "Every school day thousands of America's children find themselves threatened--in playground arguments that may escalate into fistfights, or confrontations with lethal weapons that may end in death or permanent injury. Many stay home rather than face the possibility of violence." (22) Acts of violence disrupt the safe harbor students and teachers expect while tucked securely behind the schoolhouse gates. "School violence includes all behaviors that create an environment in which students, teachers, and administrators feel fear or intimidation in addition to being victimized by physical assault, theft, or vandalism." (23)

   Disciplinary problems and violence in public schools are nothing new. (24) "School safety has been a concern of educators[,] [legislators,] and the general public for decades." (25) In recent years, the perception of schools as dangerous places has grown. (26) Preventing school violence has been a national priority since the 1970s, when Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970. (27) Several government initiatives followed, including the federal Safe Schools Act--a grant program established to support local school efforts to reduce violence and promote safety. (28) Many state legislatures followed the federal government and passed their own safe schools acts. (29) In Missouri, the state's legislature and governor enacted the Missouri Safe Schools Act in 1996 ("Missouri Act"), hoping to "send the message to every classroom and every school that [the state] is not going to tolerate violent and disruptive students." (30)

   After these laws were enacted, many schools implemented zero tolerance policies with the goal of creating safe learning environments. (31) Although the lack of a single definition of zero tolerance makes it difficult to estimate the effectiveness of these policies, they "appear to be relatively widespread in America's schools." (32) In zero tolerance disciplinary systems, "school administrators outline the expected or desired behaviors of all students, along with the designated punishments for violating these rules." (33) "The discipline is predetermined with no deviation from the designated punishment" and no "[c]onsideration... given [to a]... student's unique circumstances." (34) Abundant controversy surrounds the actual implementation of zero tolerance policies and practices. (35) For example, a ten-year-old girl in Florida suffered expulsion for possessing a weapon after school officials discovered a knife her mother placed in her lunchbox to cut an apple. (36) In another case, a school expelled a teenager for violating school rules by talking to his mother on a cell phone while at school--his mother was deployed in Iraq and they had not spoken in a month. (37)

   Zero tolerance policies are viewed as a provocative approach to addressing school violence, especially because they have been expanded to address not only a wide range of violent behaviors but also non-violent acts, such as school disruption, truancy, and insubordination. (38) Further, there is an ongoing "debate regarding how to address [the epidemic of] bullying in schools, and how institutions have adopted zero-tolerance policies as a response." (39)

   In schools' attempts to eliminate crime, teachers and administrators began to "push children out of the school system by placing them on out-of-school suspension, transferring them to alternative schools, expelling them, and/or having them arrested for minor offenses." (40) This is the start of the school-to-prison pipeline, a distressing process through which many of the nation's youths, "particularly males and students of color... receive an inadequate education and are then pushed out of public schools and into the criminal punishment system." (41)

   Children of color or children with disabilities unfortunately bear the brunt of these disciplinary actions "because of an overreliance on discriminatory punitive school discipline policies, [a] lack of resources and training within schools, and ignorance regarding disability behaviors." (42) The escalating "use of zero tolerance policies and other exclusionary practices, like suspensions, expulsions, and referrals to law enforcement, decrease academic achievement and increase the likelihood that students will end up in jail cells rather than in college classrooms." (43)

   Yet, "[t]he policies that laid the foundation for the school-to-prison pipeline were not implemented to have detrimental impacts on minority students." (44) In fact, they actually started as well-intentioned attempts to increase educational standards and opportunities, especially for minority and disabled students. (45) But reports about school violence, bullying, and gangs in schools began to drown the positive goals of the reforms as they morphed into a "tough on crime" environment rather than the safe havens free from violence intended at the outset. (46) Thus, the achievement gap between minority and non-minority students steadily grows as the policies designed to aid disadvantaged students regrettably lead to substantial disruptions in their education. (47) This unfortunate result leads to the funneling of the most vulnerable individuals into a criminal justice system riddled with its own problems. (48)

   1. Safe Schools Act of 1994

      Pursuant to its spending power, Congress enacted the federal Safe Schools Act of 1994 ("the Act"), (49) "which offers grants to high-crime school districts that are willing to undertake various approaches to decrease[]... violence in schools." (50) In fact, the federal government "grants up to $3,000,000 over two years to local educational agencies demonstrating a high incidence of juvenile violent crime." (51) The stated purpose of the Act is "to help local school systems achieve Goal Six (52) of...