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