We have been discussing the trend toward suspending and expelling students (and teachers) for comments that they make on social media (here and here and here and here and here and here and here). Teachers and administrators have been criminalizing juvenile conduct rather than dealing with such issues with the students and their teachers. Now the United States Court of Appeals for the Tenth Circuit has issued an opinion upholding one of the most ridiculous examples of the criminalization of our schools. The Tenth Circuit said that Albuquerque school officials and police were justified in ordering the arrest of 13-year-old boy who was burping in class. The Tenth Circuit ruled that the school officials and police officer were entitled to immunity for their excessive response to what was at worst a class clown.

The Tenth Circuit simply held that a New Mexico law prohibits anyone from interfering with the education process — an interpretation that would seem to allow any school prank or immature act from being charged as a crime.

In this case, you had a class clown in the seventh grade at Albuquerque’s Cleveland Middle School. The teacher, Margaret Mines-Hornbeck, reported to officer Arthur Acosta that the boy was disrupting the class by continually burping in class. The boy was taken to an administrative office. In addition to the burping incident, the child was also searched for possible drugs.  The assistant principal suspected the teen of involvement in a marijuana transaction and told him to remove his shoes and jeans, and flip the waistband of a pair of shorts he was wearing under his jeans. No drugs were found.

The son was then suspended for the remainder of the year which seems an absurd response in itself to such a juvenile act. Then, however, they proceeded to charge him criminally.

The provision itself is breathtakingly vague and could cover virtually any childish act. Subsection (D):

“No person shall willfully interfere with the educational process of any public or private school by committing, threatening to commit or inciting others to commit any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of a public or private school.”

N.M. Stat. Ann. § 30-20-13(D). The Tenth Circuit readily embraced the virtually limitless scope of this crime:

We believe the text of N.M. Stat. Ann. § 30-20-13(D) manifests the New Mexico legislature’s intent to prohibit a wide swath of conduct that interferes with the educational process. The statute renders unlawful, inter alia, the commission of “any act which would . . . interfere with” or “disrupt” school functioning and, thereby, “interfere with the educational process.” N.M. Stat. Ann. § 30-20-13(D) (emphasis added). The common meaning of the word “any” is, inter alia, “one no matter what one” and “some no matter how great or small”). . . .

The ordinary meaning of these statutory terms would seemingly encompass
F.M.’s conduct because F.M.’s burping, laughing, and leaning into the classroom stopped the flow of student educational activities, thereby injecting disorder into the learning environment, which worked at cross-purposes with Ms. Mines- Hornbeck’s planned teaching tasks. More to the point, we cannot conclude that the plain terms of subsection (D) would have given a reasonable law-enforcement officer in Officer Acosta’s shoes fair warning that if he arrested F.M. for engaging in his classroom misconduct he (i.e., the officer) would be violating F.M.’s Fourth Amendment right to be free from an arrest lacking in probable cause.

What do you think?

Here is the decision: Tenth Circuit Opinion