The U.S. Supreme Court on Monday refused take up an appeal in a case in which Neil M. Gorsuch, as an appeals court judge writing in dissent, had been sharply critical of involving the police in the matter of a student who disrupted a class with “fake burps.”
The high court, with now-Justice Gorsuch recused because it was a case he had handled below, declined without comment to review a decision by the U.S. Court of Appeals for the 10th Circuit, in Denver, upholding a school resource officer’s arrest and handcuffing of a New Mexico 7th grader for disrupting his gym class.
(See the recent analysis of federal data on student arrests by the Education Week Research Center.)
The 10th Circuit panel had ruled 2-1 that the officer was immune from liability because it was not clearly established whether the student’s classroom disruptions were in violation of a New Mexico law that prohibits interference with the “educational process” at any public or private school.
The majority also upheld qualified immunity for the officer over his use of handcuffs when he took the 13-year-old student from Cleveland Middle School in Albuquerque, N.M., to a juvenile detention center.
Writing in dissent in the lower court case, then-Judge Gorsuch lamented that a student’s classroom disruption that would have once resulted in a trip to the principal’s office and detention was now leading to the involvement of the police.
“And maybe today the officer decides that, instead of just escorting the now-compliant 13-year-old to the principal’s office, an arrest would be a better idea,” Gorsuch said. “So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option. ... Respectfully, I remain unpersuaded.”
(Gorsuch’s dissent in the 10th Circuit decision was cited repeatedly by Republican senators who supported his Supreme Court confirmation as an example of a case in which he did support the little guy.)
In their appeal to the U.S. Supreme Court in A.M. v. Acosta (Case No. 16-984), lawyers for the mother identified as A.M. and student identified as F.M. stressed Gorsuch’s dissent in the case and said, “The recent criminalization of middle school antics and misbehavior is an issue of considerable public import to our nation.”
“To allow everyday acts of misbehavior to be criminalized creates serious consequences for our children: they are pushed out of school, into the criminal justice system, and introduced to institutionalization,” the appeal said.
A coalition of juvenile justice and child advocacy groups filed a friend-of-the-court brief in support of the family.
“This case is not simply about a 13-year-old jokester who acted as a class clown by burping in class,” says the brief by the groups. “Criminalizing such commonplace behavior will severely impair students’ education, health, and life chances.”
A brief on behalf of Arthur Acosta, the Albuquerque police officer who arrested the student, said the family “fails to acknowledge the true extent of the disruption” from F.M.'s burping.
“The act of burping, standing alone, was not what Officer Acosta’s arrest was based on; rather, it was the vehicle by which the school disruption occurred,” the brief says. The officer reasonably believed F.M.'s classroom teacher when the teacher said the student’s fake burping “prevented her from controlling her class,” the brief says.
The brief for Acosta also told the high court that the case was not one of national importance since it turned on the interpretation of a New Mexico statute.
“While the facts underlying [the family’s] claims may be of interest because they are somewhat unique, the legal issue involved is nothing more than the application of New Mexico law to the qualified immunity analysis,” the brief says.
Meanwhile, the Supreme Court took action in two other school-related appeals on Monday.
In C.R. v. Eugene School District 4J (No. 16-940), the justices declined without comment to hear an appeal on behalf of an Oregon 7th grader who was disciplined for sexually harassing some younger students in a park adjacent to their school.
A key question for lower courts was whether the school had the authority to discipline the offender over what was technically off-campus behavior. A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, had ruled last year that on the fact of this case, the school could discipline the 7th grader.
Meanwhile, in S.D. v. Haddon Heights Board of Education (No. 16-1054), the Supreme Court ordered a federal appeals court to reconsider the case of a student with multiple disabilities who ran into trouble over a large number of absences.
The student and his family sued under the Rehabilitation Act of 1973 and the Americans with Disabilities Act, but two courts ruled that the suit potentially implicated the Individuals with Disabilities Education Act.
The Supreme Court said the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, should reconsider the student’s case in light of the high court’s February decision in Fry v. Napoleon Community Schools. In that case, the justices held that an exhaustion of procedures under the IDEA is not necessary in certain cases brought under other federal disabilities laws.
A version of this news article first appeared in The School Law Blog.