So It Has Come To This: Criminalizing Burps In Middle School

At  Cleveland Middle School in Albuquerque, a persistent class clown, age 13, kept burping in class, followed by the usual titters from his classmates.

I was in class with one of these characters in the 8th grade, and I must admit, his burp was something: loud, long, low, and seemingly inexhaustible. He was yanked out of class, he was sent to detention, his parents were called, he was suspended, and eventually, without too much conflict, he learned to cut it out. (They never caught the guy who shouted “HOG!” in a raucous voice during study hall.) Apparently this method was beyond the abilities of the  Cleveland Middle School staff to execute.

The teacher, Ms. Mines-Hornbeck, called the police, who arrested and eventually cuffed the boy. Principal Susan LaBarge and Assistant Principal Ann Holmes  not only suspended him for the rest of the school year, but allowed the criminal justice process to proceed, with the boy being processed for the charge of  violating a New Mexico statute, N.M. Stat. Ann. § 30-20-13(D), that reads…

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.

That’s right: arrest and criminal prosecution for burping in class.

None of the staff at the school, apparently, had an ethics alarm go off that induced them to point out that the year long suspension was an unethically harsh punishment, and the criminal charge was tantamount to child abuse. I remember that in the fourth grade at Parmenter School in Arlington, Mass, my friend Timmy Russell was moved to leap to his feet during a math lesson and do a ten second imitation of Elvis singing “Hound Dog.” Everyone laughed, including the teacher. Then, that burst of childish energy over, she went on with the lesson, because she was a confident professional.

In New Mexico, 2016, Timmy would have broken the law.

It gets worse, as it always seems to lately. The Tenth Circuit Court of Appeals ruled that Albuquerque school officials and police reasonably interpreted the law, and the arrest of a 13-year-old boy for burping was just fine and dandy. It also ruled that LaBarge, Holmes and the arresting police officer were entitled to “qualified immunity from being sued by the Mad Burper’s parents, who claimed that a reasonable officer “should have known that burping was not a crime” and that “no force was necessary” to facilitate the arrest.

Qualified immunity, explained the Court,  “protects governmental officials from liability for civil damages insofar as their conduct does not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Okay, got it: I’m not going to argue with the Tenth Circuit’s conclusion  that once called, the officer had a law sufficiently vague enough to make this outrageous arrest, that the arrest was legal, though unethical, and that immunity attached. It’s a rather legalistic opinion, and the issues involved manage to skirt the central ethics problem, which is that it is flat-out incompetent, unfair, and an abuse of power for a school to have a 13-year-old class clown arrested and charged for being a jerk-off.

This is an educational system breach of ethics, not a legal system problem. I would hope that if it were challenged, the statute would be found void for vagueness (there is also an incompetent legislature problem when a law this bad gets passed) , but apparently that argument wasn’t made here. The claim was that burping didn’t violate the statute, and the Court wrote,

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.

In other words, the school may have been abusive, inept, cruel and foolish, but the law let them do it. This is one more example where “legal” and “ethical” are not necessarily residing in the same zip code. The case wasn’t about whether the authorities were wrong, only about whether the law allowed them to be wrong.

Forget the courts, then. The incident has ethics significance, because it demonstrates societal rot, a lack of competence and compassion in our educational system, and the kind of government-aided intimidation that breeds in crumbling institutions no longer worthy of trust. (It would be nice if we had a President who would use his bully pulpit to put the kibosh on this trend, but we don’t. It’s not as important to him as announcing basketball tournament brackets or impugning police as racists.)

I’ll second Nick Gillespie’s conclusion regarding this story at Reason:

“When you encounter this sort of ridiculous overreaction on the part of school officials—which is then certified by even-more-august authorities—it is no wonder why Americans are losing confidence in major institutions of political, commercial, and civic life. These are not the actions of authorities who have belief in themselves and the things they run. They are the behaviors of a society in decline, to be honest, that no longer feels as if it can exercise power at any level except via banishment and extreme action.”


Pointer: Res Ipsa Loquitur

31 thoughts on “So It Has Come To This: Criminalizing Burps In Middle School

  1. I don’t usually have the time to wade through these posts, but the subject of burping piqued my curiosity.

    Jack, once again, you take any opportunity to impugn President Obama, even when your rant about him is irrelevant to the subject matter: “(It would be nice if we had a President who would use his bully pulpit to put the kibosh on this trend, but we don’t. It’s not as important to him as announcing basketball tournament brackets or impugning police as racists.)”

    This digression exposes your own biases (again) and weakens your credibility.

    • Phil, Jack is fully on target in including the forlorn hope of the influence of the POTUS as a force for good. The current resident of the Oval Office has proved to be such a sponge for bad ideas, i.e., Critical Race Theory, Globalist directed Colonialism, politically driven social postures, statism and faux tolerance that his continual LACK of supporting common sense begs for Jacks observation and many more.

    • I thought the Obama dig was unnecessary, but not enough to damage his credibility. It’s one of those writing tics I’ve learned to overlook, since the quality of Jack’s writing overall is so great.

      • Thanks, Chris. This happens as I write these things and wonder: why is so much of this happening? Why doesn’t anyone care? Why does the President choose to get involved with disputes between professors and police officers, but won’t use his leadership to steer society away from madness in something like this, where a little focus from POTUS can do wonders? Why?

        And it drives me crazy. I also think others need to think about this. The President will try to repeal immigration enforcement laws with a dubious executive order…but this is something that he can actually have a salutary effect on by exercising cultural leadership, and he doesn’t. It’s not the only example, either.

    • Keep saying this, Phil, and maybe someone gullible will believe it.

      President Obama, like all leaders, is responsible for cultural and societal developments on his watch. My mention of him is pointed and relevant: this kind of thing has proliferated in the last 8 years. Schools have been warned by Obama’s DOE about school discipline that has “disparate impact,” causing them to be afraid to discipline disruptive kids and to rely on law enforcement instead. Obama’s Education Department, along with a slew of cowardly, inept administrators, is directly responsible for the increased criminalization of childhood. He is also probably the only one who can focus attention on this problem, alert parents and shame schools into stopping it.

      He could do it tomorrow, in less than the time it takes to play 9 holes. He doesn’t. He should. He doesn’t care about this, that’s all.

      It’s not at all gratuitous. It’s gratuitous to enabling partisans who have helped make Obama the atrocious President he is.

  2. Here is the problem I have with some of your analysis. This looks a lot like the bad law rationalization. I think we can all agree that he broke the law. Should the law not be enforced with respect to this behavior because it is a bad law. Or, do you exempt burping from the law? Then, you will be claiming that the burping is unethical and he can’t use the Marion Barry excuse to get out of trouble. And, then you will declare a “Burping Ethics Train Wreck.”

    • There is absolutely no way this law is enforced consistently against children like this. It couldn’t be, or there would be hundreds of children subject to the same fate every year, and we’d be seeing mass outrage. It seems to me the purpose of the law was probably to keep *adults* from interfering with children’s education–which, ironically, is what the teacher and administration did here–but the vague wording of the law allowed the school and the government to punish the child in a way that the law likely never intended.

      So your question should really be “should we misuse laws by ignoring a rational reading of their intent in order to selectively target children to make an example of them, even though the law is almost never used this way.” To that my answer is “No.”

        • A social code that governs down to this level rings with the feel usually found in “occupied territory”. For a long time I was concerned about the more expected forms of Imperialism…but this is almost the fulfillment of what was predicted in Chalmer Johnson’s Blowback Trilogy. This incident indicates that a form of dictatorial Imperialism exists that now turns inward. I can just hear it now, out of the Kyoto crowd….”your BEHAVIOR…belongs to the state”…

        • Of course, but I think the question was what we should do in the meantime, while that law stays on the books. (You’ve taken a pretty solid “law and order” stance on immigration laws, for example, even though I’d argue our current immigration laws are far from rational.)

          I think simply changing the word “persons” to “adults” would make this law more rational. But in the meantime, the law should simply be interpreted rationally, meaning not misusing it to target misbehaving children.

    • That wasn’t my analysis. The Court is correct. The law was almost certainly not intended to cover run-of the-mill class clowning. Discretion is necessary in all law enforcement, especially when laws are too broad.

      “It’s bad law” is a rationalization when used by an individual to escape the consequences of wilful violation of it. It’s not a rationalization when it IS a bad law, and injustice results. As a juror, I’d regard this as a perfect example of the need for jury nullification, and as taxpayer, a reason to get rid of the idiot DA who would prosecute such an “offense,” no matter what the law says.

      The Marion Barry Excuse is that if it’s legal, it’s ethical, which is manifestly false. No, disrupting class with noises is unethical, but shouldn’t be illegal. The law is too vague to be Constitutional—arguing with the teachers could be made criminal under it—and of course burping and other minor disruptions shouldn’t be covered. The law itself is unethical, and probably. illegal.Lawyer ethics rules condemn courtroom disruptions, but they aren’t illegal.

      • Jack: “It’s bad law” is a rationalization when used by an individual to escape the consequences of wilful violation of it. It’s not a rationalization when it IS a bad law, and injustice results.

        That’s my point. The same statement could either be a rationalization or a justification. And that simply depends upon where you come down on the underlying conduct. And, that requires judgment; there is no decision process that gives you that answer. So, whether it is a justification or a rationalization is completely (okay, largely) subjective.


          • The Rule of Lenity is dead; killed by RICO. Had you not heard? (In my years as a lawyer, I have not had the chance to argue that. I doubt the Feds know what it is.)

  3. Might this hold far-reaching implications for the “pull my finger” crowd?

    Hopefully this tangentially relevant.

    A number of years ago, a friend of mine’s HS age son “mooned” a couple of friends, from the safe confines of a vehicle, in the school parking lot.

    A horrified mother witnessed the despicable act, wrote down the license plate number, and promptly reported said crime (?) to the Gendarmerie.

    Deemed guilty, without recourse to appeal, he was summarily suspended for 3 days.

    I’m a 61 year-old recovering, (“nonparticipating” as we refer to ourselves at the meetings), serial mooner Emeritus myself.

    We all know that ‘recovery’ is a journey rather than a destination.

    Fortunately with years of beer, pills, & self-help tapes, my relapses are limited now to occasionally ‘shining’ my beloved and long-suffering spouse and golfing friends I run past, overcome by self-satisfied, yet cathartic, demonic giggling.

    Yet I found his treatment to be a travesty of Justice.

    3 day suspension for 1st offense mooning?

    Had that been the standard back in the late 60’s/early 70’s (recently too), I and a number of my similarly maturity challenged pals would be doing life without parole.

  4. Like many other cases, this one illustrates the necessity of having ethical, rational prosecutors who will nip this kind of idiocy in the bud. The criminal justice system should only be used to effect school discipline in the most extreme cases, where life, limb, or property are threatened, i.e. where real crimes are involved. I do not understand how or why otherwise competent police agencies allow themselves to be carried along into this nonsense, but a good prosecutor should save them from themselves.

  5. I suspect the story behind this story is the long-standing problem in too many public schools of the teachers’ inability to enforce any discipline in their classrooms and the administrators’ unwillingness to back up any teachers who attempt to enforce discipline in their classrooms. Combine that with the parents who support their ill-behaved children rather than the teachers and administrators, and you get this sort of chaos. I bet this kid was a chronic problem and the teachers and administrators were at their collective wit’s end.

      • That being said, probably the primary reason I got out of teaching high school after less than two years was how demoralized and awful most of my fellow faculty members were. I avoided the faculty lounge like the plague. What a depressing group of people. They hated their job and they hated the kids. And this was in Catholic high school where discipline was fine and the parents were, with rare exceptions, supportive and appreciative.

  6. I remember back in Catechism, we were being taught about the prophets. The question was asked: “Who was Jeremiah?” To which the obvious and correct response from me was to break out into “JEREMIAH WAS A BULL FROG da na na”

    Best expulsion ever.

    • Best laugh of my week. Thanks HT.
      When the song starts fading out at the end, I can just see a classful of children being marched off to jail, singing at the top of their lungs:

      • Makes me wanna cause a ruckus again the way we did after one too many consecutive rainy days trapped in a damp schoolroom: high school Rube Goldberg electronics. Hook up the mike in the auditorium to a 45 single on an old plastic record player, set the control console to loop, (remember to wipe off the fingerprints – not because we would have expected the cops for any prank short of setting off a fire alarm — there were definite limits! –, but we didn’t want to catch hell at home if we were identified), jam the doors on the way out, and let ‘er rip Smoky Joe’s Cafe at top volume through every classroom. It only worked once but for the rest of the day it was slow-talkin, slow-walkin’ anarchy. Worst problem for the teachers (we could tell) was that they found themselves getting down with the rhythm too. That was the time we learned that an embarrassed teacher can be a very angry teacher, and the angrier she gets the more embarrassed she gets until she reaches the Red Queen’s “off-with-his-head” lost-voice stage. Is that what happened in Albuquerque? One burp over the line?

  7. “The incident has ethics significance, because it demonstrates societal rot, a lack of competence and compassion in our educational system, and the kind of government-aided intimidation that breeds in crumbling institutions no longer worthy of trust. (It would be nice if we had a President who would use his bully pulpit to put the kibosh on this trend, but we don’t…”

    And which of the two presidential candidates is certain to continue to encourage governmental progression along these lines?

  8. Arrested a child for childish behavior; this is nucking futs.

    First an blindly self-centered and ignorant generation propagated too many children and then that generation of parents expects teachers and schools to babysit and raise their ignorant children because they (the parents) have too much on their plate, now this task is being passed from the ill prepared teachers and schools to the police and the legal system. Everyone seems to be washing their hands of teaching the children right, wrong, respect, etc; I’ve gotta believe that education/work indoctrination camps are right around the corner.

  9. Suspended for the rest of the year for burping? Ms Mines-Hornbeck should get the stick in the mud award from the NEA. I shudder to think what would have happened to the kid if he had passed gas and disrupted the educational process.

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