Mimesis Law
11 July 2020

Policing Our Schools: Kid Arrested for Burping in Class

August 4, 2016 (Fault Lines) — A 13-year-old middle school student in Albuquerque was arrested, suspended from school, and taken to juvie for being a class clown: burping and laughing in class in violation of New Mexico’s school disruption laws. When his parents sued the school and police for false arrest and violation of his constitutional rights, the federal courts were forced to side with officials and acknowledge their qualified immunity, as the arrest was legal, despite its pettiness.

Interfering with the educational process of any public or private school by committing an act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of a school is a petty misdemeanor offense in New Mexico.

According to the 94-page opinion, the child’s fake burping prevented the teacher from controlling her class. (Apparently other kids found this amusing and continued to laugh as well.) Couple that with the officer’s observation that “there was no more teaching going on,” and Officer Acosta had a legitimate basis, or arguable probable cause, to arrest the child, thus his qualified immunity.

Of note, the child was never charged with criminal or delinquent conduct. Presumably, cooler heads prevailed and prosecutors declined to pursue the malfeasance. Score one for prosecutors.

The problem here is not whether Officer Acosta could arrest little Johnny,* but rather whether any officer should arrest little Johnny for horseplay and disrupting class. Kids will certainly be kids. Children, by definition, lack the maturity and sophistication to govern themselves appropriately, and will, sometimes, act like, well, children.

That this was a kid doing something childish wasn’t lost on Judge Neil Gorsuch in dissent:

If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.

Children often find humor in what would otherwise be the socially unacceptable exhibition of bodily functions, such as burping and farting. Some children even enjoy the attention of classmates who laugh at their fake flatulence. And who doesn’t appreciate the class clown derailing the day’s lesson plan with a little laughter and diversion? It’s all part of growing up and testing boundaries; part of fitting in by entertaining classmates.

Well, it used to be. Gone are the days of school pranks. Kids can no longer settle their own disputes on the playground. They can’t even bring toys to school any more. And they certainly cannot capture the fun of belching repeatedly during class.

Today’s educational environment is fraught with resource officers and police. Everything is criminal. The teacher didn’t even send little Johnny to the principal’s office. Instead, she called the school’s resource officer to “handle the problem.” And, when the police are called to handle any situation, they have limited means available: citation and arrest. Sure, the officer could issue a warning, but didn’t the teacher already tell little Johnny to stop? After all, she had already placed him in the hallway as punishment, but he kept sticking his head in, burping and laughing. There was only one move left – arrest.

Skip the principal’s office, do not pass go, and proceed straight to jail, or juvenile, as it were. That’s today’s answer to misbehavior. No swats. No more detention. No writing on the blackboard. No banging erasers. It’s just off to jail.

And yet we wonder what has happened to our kids; wonder why we have an educational pipeline to prison. Are kids more sinister than they were in years gone by? Or have we simply criminalized their behaviors? What happed to school discipline?

Placing police officers in our schools grew out of concerns for our children’s safety. But once placed in the schools, how else do they justify staying? But for arrests, there is no justification. Sure, they are present in case something really bad happens, but let be real, they don’t happen all that often. Yet, schools now have full police forces – not just an officer or two. And those departments don’t come cheap. Taxpayer dollars are needed. Taxpayers need justification for those tax hikes. Results are measured in arrests rather than safety, which is a boring metric. So arrest they must.

But at what cost? In an overview of school resource officers in late 2015, Time reporter Josh Sanburn asked, Do Cops in Schools Do More Harm Than Good?:

Fewer than 100 police officers were in schools when the practice began in the 1950s, says Jason Nance, a University of Florida law professor who studies school resource officers. But they increased significantly throughout the 1980s and 1990s as tough-on-crime federal and state policies attempted to bring down juvenile crime rates around the country.

In a study to be published [this] year in the Washington University Law Review, Nance found that the presence of school resource officers increases the likelihood of students being involved in the justice system for virtually every offense that occurs in schools, including lower-level offenses like fighting and theft. According to the paper, the odds of a student accused of a low-level offense being referred to law enforcement in a school with a regular police presence is between 1.38 and 1.83 times higher than those without [school resource officers]. Other studies show that high schoolers who have early run-ins with the law are more likely to drop out of school or potentially be arrested again later in life.

“Once a student is arrested, they’re less likely to graduate and more likely to be involved in the justice system later on,” Nance says. “It’s traumatic for these kids, and some of them don’t recover.”

Just how much trauma can we subject our children to before we say enough is enough? In short, officers should not be involved in school discipline matters. And, isn’t burping and laughing really a school discipline matter rather than a police matter? It should be. It’s time to empower our educators, who need to deal with the responsibilities whether they like it or not, rather than police our children.

*The case proceeded under fictitious initials rather than a name to preserve the anonymity of F.M., who is a minor.

5 Comments on this post.

Leave a Reply



Comments for Fault Lines posts are closed here. You can leave comments for this post at the new site, faultlines.us

  • Jim Tyre
    4 August 2016 at 10:29 am - Reply

    Children often find humor in what would otherwise be the socially unacceptable exhibition of bodily functions, such as burping and farting.

    When did that happen? Why wasn’t I told?

    • JoAnne Musick
      5 August 2016 at 3:20 pm - Reply

      They like to keep it secret!

  • jdgalt
    4 August 2016 at 2:01 pm - Reply

    The lesson to be learnt here, IMO, is that neither petty bureaucrats such as these school officials, nor police, should be trusted with discretion since they will abuse it. Instead, the law needs to be written narrowly enough so that FM’s parents would have a case at least against the officer, and preferably against the school too.

    • JoAnne Musick
      5 August 2016 at 3:22 pm - Reply

      While I like the discussion, I think discretion is absolutely what is needed. Discretion to discipline internally and within the school. Perhaps standards that limit police involvement. The problem is we put police in schools. They need “something” to do. So the kids pay the price.

  • Anonymous
    4 August 2016 at 7:54 pm - Reply