SoylentNews is people
SoylentNews
Among its orders issued on Monday, the Supreme Court did something usually unremarkable: it summarily refused to hear an appeal without comment. Most appeal requests are denied by SCOTUS, but docket 16-984 was unusual in several respects. For one, it involved a 13-year-old boy arrested, handcuffed, and taken to jail for making fake burping noises in gym class. But recently it also became a notable dissent by recently appointed Supreme Court justice Neil Gorsuch from when he had served on a Federal Circuit Court.
The facts of the case were straightforward. As summarized in the introduction to the petition for appeal:
Thirteen-year-old F.M. burped in gym class, laughed, and, after the teacher removed him from the classroom, he leaned back into the classroom while sitting in the hall. Because these acts divided the teacher's attention, Officer Arthur Acosta ("Officer Acosta") handcuffed F.M., transported him to the local juvenile detention center, and charged him with Interference with the Educational Process, N.M.S.A. 1978, § 30-20-13(D) ("Section 30-20-13(D)"). Officer Acosta handcuffed and transported F.M. even though F.M. was compliant at the time he arrested him and there was no state interest in transporting him.
Ultimately, the case ended up in the hands of a federal Tenth Circuit Court, which found in a 2-1 ruling that the policeman's qualified immunity was sufficient to summarily dismiss any action against him. Gorsuch, however, found this absurd and began his 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.
In his concise 4-page dissent, Gorsuch skewered the majority's convoluted reasoning, which seemed to spend much of its 94 pages constructing a careful path circumventing a New Mexico appellate court ruling that "interference with the educational process" required a "substantial, more physical invasion" of a school's operations. On this basis, Gorsuch concluded that the statute in question (which used identical language to the statute in the previous court case regarding colleges) obviously did not intend to criminalize minor "noises or diversions." He noted several other court cases from other states dealing with similar issues that concluded the same thing.
On this basis, he wrote that a "reasonable officer" in New Mexico should have known better.
But why did the Circuit Court come down so harshly and construct such convoluted reasoning just to let a police officer off the hook? The answer may be in the quiet sea-change in SCOTUS jurisprudence that seeks to limit almost all challenges to the "qualified immunity" given to police officers. Despite the fact that it doesn't appear in any federal statute, "qualified immunity" became de facto law after the 1982 Supreme Court ruling in Harlow v. Fitzgerald, which interpreted 42 U.S. Code § 1983 "Civil action for deprivation of rights" extremely narrowly. Over the years, this qualified immunity has expanded to the point that almost any police action -- no matter how unconstitutional or egregious -- is immune to civil action.
One recent illustrative case is SCOTUS's 2014 ruling in Plumhoff v. Rickard. After a routine traffic stop for a broken headlight, a car sped off resulting in a high-speed chase. After the car was cornered by a police patrol car, the police fired 15 shots into the car at close range, killing the driver and passenger and causing the vehicle to crash into a nearby house. SCOTUS reversed the appellate court's decision unanimously, determining that qualified immunity was still in effect. It should be noted that the doctrine of "qualified immunity" does not merely find officers non-liable for their actions; it necessitates a summary dismissal of any claims against them, preventing any actual consideration of fact in a lawsuit.
But what does this have to do with the "burping teen"? As argued in a recent Minnesota Law Review article, the Supreme Court has not only expanded its "qualified immunity" exceptions, but it has attempted to stamp out any possible dissent among lower courts. Rather than the standard jurisprudence concept of relying on citation of precedent, SCOTUS has instead chosen to quietly expand this doctrine (which it itself created in 1983), "describing it in increasingly generous terms and inexplicably adding qualifiers to precedent that then take on a life of their own." During the past 15 years, the Court has ruled in favor of the "qualified immunity" in 16 of 18 cases it chose to take. And in 6 of these cases it chose summary reversals of Circuit Court decisions, with no allowance for oral argument or briefing. (As the law review article notes, that represents about 1 of every 7 summary decisions in recent years.)
This tendency to not only reverse Circuit Court decisions (often unanimously), but often without even allowing argument, shows an unusual trend in SCOTUS jurisprudence. Even more remarkable is that through a series of rulings, SCOTUS has effectively short-circuited the process of appeals by insisting that (1) "qualified immunity" can only be denied in cases where officers violate "clearly established law," but (2) effectively limiting the determination of "clearly established law" to SCOTUS itself. Hence, if your case is not basically identical to the circumstances of a previous successful challenge to "qualified immunity" litigated by SCOTUS, lower courts are now implicitly instructed to grant immunity no matter what.
Indeed, earlier this year Bloomberg reported a story with the headline "Supreme Court Has Had Enough with Police Suits," after the most recent summary reversal -- just because the facts were "unique":
The justices made it clear that they wanted to send a message. [...] And the opinion referred to several occasions "in the last five years" in which the Supreme Court has reversed lower courts on the qualified immunity issue. There's little doubt of the message to the lower courts: The Supreme Court wants fewer lawsuits against police to go forward.
In an era where police misconduct seems to be getting more attention all the time, why are we not hearing more reporting about this quiet revolution in Supreme Court jurisprudence that has effectively made it impossible to make police accountable for their actions?
Returning to our "burping boy" case, perhaps we can read Gorsuch's dissent in a new light. Were the Circuit Court judges simply trying to find a way to grant immunity just to avoid another smackdown by SCOTUS? In his conclusion, Gorsuch comes close to accusing his colleagues of manufacturing an argument that they don't actually believe is just: "Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands..." He then goes on to say that he doesn't believe the law is "quite as much of a[n] ass as they do."
Because of his prior involvement with the case, Gorsuch was forced to recuse himself from consideration of the SCOTUS appeal. But if his dissent was sincere, maybe his voice will remain one dissenting voice among the otherwise unanimous Supreme Court justices who now allow for almost no possibility of personal culpability for police negligence, incompetence, or abuse.
(Score: 3, Insightful) by Anonymous Coward on Thursday May 18 2017, @03:41PM (10 children)
What a sad state of affairs where teachers and school administrators can't deal with unruly children and must call the police and send them through the criminal justice system.
(Score: 2) by ikanreed on Thursday May 18 2017, @04:41PM (9 children)
I don't think it's that they can't. My personal feeling is that it's just too easy a solution. Have police on campus, have their whole job be discipline related, and don't be surprised when people assume that they're there to be used.
Also, studies have shown that there's huge racial disparities on whether teachers will use school police on students that don't correspond to misbehavior levels, so there's this clear indication that it's elective, not necessity driven.
(Score: 4, Insightful) by BK on Thursday May 18 2017, @05:09PM (8 children)
And that's where your thinking is wrong. They can't.
Back when, the opportunity to an education was recognized as a right, but the opportunity could be lost or expended by a student who could not or would not meet the behavioral norms of the school. School administrators had the ability to remove those who could not, or would not, participate from the student body for an extended period or for forever (expulsion). That is no longer permitted, or at least not in the way that would make it useful.
Today, that expelled student still has the absolute right to that education at the expense to that school district. If he can't be educated at the school, the school must pay for his education in another setting.
How does that apply here? There is almost nothing that a school administrator can do about chronic bad behavior... All of his options come at great cost and are discouraged. And even if he tries, the misbehaving student generally gains privileges. But, according to TFA a policeman can do just about anything up to, and including, drawing a weapon and 'defending himself' from whatever he sees.
...but you HAVE heard of me.
(Score: 4, Insightful) by AthanasiusKircher on Thursday May 18 2017, @06:00PM (7 children)
As someone who actually taught secondary school for a few years, I can back up some of this. I still remember when a lawyer came to the class I was required to take for certification and advised us NEVER to touch a student, unless we were specifically trained and authorized to do so.
That means -- if a fight breaks out outside your classroom, you call whoever the school tells you: an administrator, security, police, etc. It doesn't matter if one kid is beating another senseless -- if you intervene and something bad happens, you could likely get sued. If you get injured, you may not be covered by the school's insurance. If you accidentally injure a student in attempting to break up a fight, you could be sued. So, while police are basically ALWAYS immune, teachers are basically NEVER immune to lawsuits. (Of course policy varies by state and individual school district.)
However, I think it's an exaggeration to say that administrators have no recourse today since they can't expel students. Students frequently get sent to in-school suspension for extended periods, which (depending on the school) can be operated in a pretty authoritarian way. Obviously if students are committing clearly illegal acts, like physical assault, etc., police can and should be involved.
All that said, I'm not sure what any of this has to do with a case of a middle-school student burping and laughing in gym class. For such an infraction, teachers and administrators still have MANY options before calling police.
(Score: 2) by sjames on Thursday May 18 2017, @06:36PM (3 children)
I have to wonder if some of the "kids these days" aren't disrespectful of their schools simply because there's nothing to respect. When I hear of schools turning minor disciplinary issues into a police matter, I certainly don't have much respect for them.
(Score: 0) by Anonymous Coward on Thursday May 18 2017, @08:37PM
http://www.salon.com/2013/08/26/school_is_a_prison_and_damaging_our_kids/ [salon.com]
"Schools as we know them today are a product of history, not of research into how children learn. The blueprint still used for today’s schools was developed during the Protestant Reformation, when schools were created to teach children to read the Bible, to believe scripture without questioning it, and to obey authority figures without questioning them. The early founders of schools were quite clear about this in their writings. The idea that schools might be places for nurturing critical thought, creativity, self-initiative or ability to learn on one’s own — the kinds of skills most needed for success in today’s economy — was the furthest thing from their minds. To them, willfulness was sinfulness, to be drilled or beaten out of children, not encouraged. When schools were taken over by the state and made compulsory, and directed toward secular ends, the basic structure and methods of schooling remained unchanged. Subsequent attempts at reform have failed because, though they have tinkered some with the structure, they haven’t altered the basic blueprint. The top-down, teach-and-test method, in which learning is motivated by a system of rewards and punishments rather than by curiosity or by any real, felt desire to know, is well designed for indoctrination and obedience training but not much else. It’s no wonder that many of the world’s greatest entrepreneurs and innovators either left school early (like Thomas Edison), or said they hated school and learned despite it, not because of it (like Albert Einstein)."
http://thewaronkids.com/ [thewaronkids.com]
"The War on Kids is a documentary on Public Education in America. While several documentaries on schools have come out since The War on Kids, these films tend to be either propaganda for charter schools or look at symptoms without any appreciation or understanding of underlying issues. To be a great documentary, it is essential to do the necessary work and dig deeper to uncover the heart of the problems observed. The numerous failures and pathologies associated with school are predominantly due to its autocratic structure. Because no one wants to voluntarily relinquish power, this fundamental problem is never addressed or even recognized."
(Score: 1) by tftp on Friday May 19 2017, @01:22AM (1 child)
I have to wonder if some of the "kids these days" aren't disrespectful of their schools simply because there's nothing to respect.
Why would an aggressive kid, who is probing the boundaries of permissible, respect someone who is not holding his ground? Remember, kids are not adults, they are often driven not by rational thought and respect for others. IMO, even the best teacher cannot always attract undivided attention of everyone, from future Einsteins to the village idiot. Teachers have to teach, and not all subjects are nice, easy and pleasant to study. It requires effort - and very soon the pain of learning exceeds the pleasure from listening to a nice guy. Then the village idiots stop listening and start disrupting the class.
Nothing else can be expected if the education is mandatory. IMO, however harsh it may be, people have to be responsible for their actions. As children are not legally ready for that, their parents step in. If the student cannot confrm to the rules of the class, he shall be expelled, and the school's duty to him is at that point done. The missing knowledge can be always regained, if needed, later - but, perhaps, on different conditions. Otherwise you will always have a few fools in the class that only hurt others (sometimes physically.) I would very much prefer to learn among students who are like myself, not among some random snapshot of the society. Perhaps bullies would also like to study among people like them. They won't learn much, of course, but that's given - you can only take the horse to the water. The society is wise in giving every kid a fair chance to get free education, but you cannot force-feed that education to those who reject it.
If the requirement of mandatory education is removed, then automatically the police is out of the picture - we do not have police officers on duty in offices and on factories. The situation that unfolded here will be impossible; at worst, the ex-student would be removed by the police from the school for trespassing (as he is no longer a student there,) but not jailed. One would say that such children will become the dregs of the society - but they can correct the situation on their own, entirely within the existing legal framework - by finding an alternative school who is willing to accept them, perhaps on other terms, perhaps in classes full of other kids like them. If they won't lift a finger, though, nothing will change - they ain't learning anything either way.
(Score: 2) by sjames on Friday May 19 2017, @02:58AM
The school system where I am still has one school specifically for disciplinary problems. If a student is expelled, they go there and their parents are required to arrange transportation (making sure even otherwise unconcerned parents will show an interest).
I don't know how it is now, but when I was in school, disruptive students did their assignments in the hall or got sent to the principal's office. If a student refused to leave, a large male teacher would (if necessary) drag them out. While there were a few incidents, they were handled within the school.
But really, it goes beyond that. If a school's administration isn't smart enough and doesn't have enough sense of proportion to handle problems in house, they're buffoons. Hardly shining examples of educational ideals. They will not be looked up to by anyone. The kids know the difference between someone who really cares about education and someone who is just there because they didn't have enough charisma to sell used cars. Let's face it, some of the administrators out there (particularly the ones who manage to get discussed here) have failed adulthood.
(Score: 2) by BK on Thursday May 18 2017, @07:10PM (2 children)
I work on the data and IT side of schools and I assure you that in--school and out-of-school suspensions are reported to state and federal governments and that they (the higher powers) have expectations. Administrators are discouraged from giving them. And parents will actively encourage students to act out or violate rules [bostonglobe.com]. (In fairness, the rules are
sometimesgenerally arbitrary and unfair and whatnot, but disrespect is learned at home.)Oh agreed. To all appearances, this is an overreaction. I *assume* that this is a student with a history of causing disruptions and for whom other options had been tried in the past. Back when, the hypothetical chronicly misbehaving student would have been sent home and possibly asked not to return until next year. Today, the district would have to pay for tutors, etc. and could be sued or worse. The police, as I noted earlier, can apparently do anything...
...but you HAVE heard of me.
(Score: 4, Informative) by AthanasiusKircher on Thursday May 18 2017, @08:39PM (1 child)
I work on the data and IT side of schools and I assure you that in--school and out-of-school suspensions are reported to state and federal governments and that they (the higher powers) have expectations. Administrators are discouraged from giving them.
Let's be clear on some facts. Your first post here waxed nostalgic for the good ole days when students could actually be expelled from school. Although expulsion rates have begun to decline in the past few years, they were at record highs up until about a decade ago. The National Center for Education Statistics [ed.gov] notes that the percentage of K-12 students who had ever been expelled rose from 15.2% in 1993 to 21.6% in 2007. The percentage of students who had ever been expelled rose from 1.5% in 1993 to 3.4% in 2007. Between the early 1970s and the 2000s, the percentage of suspended students more than doubled (particularly among minority students).
So, I'd like to see some stats from you about the good ole days when they supposedly used to kick kids out of school more often -- and that made everything better.
And yes, by the late 00s, suspensions and expulsions had reached "epidemic" proportions, and they had numerous documented bad effects. Namely, kids who had these punishments were more likely to end up failing classes, more likely to drop out of school, more likely to end up in prison. (These effects show up even for students who had not previously had disciplinary problems.) Effectively, we had enlarged the "expulsion to prison" pipeline. Also, expulsions and suspensions were disproportionately growing among minority students. So yeah, stats are collected and oversight requested. I can understand why -- we should know the reasons behind this trend!
Now, you might argue that schools are getting worse, that kids aren't being disciplined enough at home these days, etc., etc. -- maybe so. But please let's not pretend that there was ever a "good ole days" when we kicked all the bad kids out of school and that solved everyone's problems. Strict expulsion policies for things like drug offenses, etc. growing in the 1990s arguably made these problems worse in the communities at large.
I'm not saying there's an easy solution. There are obviously a lot of factors. But I'm not going to pretend that if only we could expel more kids that it would magically fix everything.
I *assume* that this is a student with a history of causing disruptions and for whom other options had been tried in the past.
Why should we "assume" that? Why should we put faith in the judgment of a teacher and police officer when they were also shown to exercise poor judgment? Later in the year that this incident occurred, the same student was subjected to a strip search without an opportunity to contact his parents and with 5 adults encircling him while he stripped to his underwear. There seems to be very little reporting of other details outside the court case, presumably for privacy reasons -- but the initial newspaper reporting in Albuquerque mentions nothing about prior incidents or punishments. Certainly nothing that would rise the level of illegality that would justify an arrest and trip to juvenile detention.
Sure, maybe he was a consistent problem kid and out of frustration the teacher asked the police to intervene. Maybe there had been a multitude of previous disciplinary actions, though I assume that would have become part of the court record if there was some escalation that seemed to justify the police action; yet there's nothing mentioned about that. So I have no basis to make your assumption.
(Score: 2) by AthanasiusKircher on Friday May 19 2017, @02:03AM
Anyone who clicks on the link will figure this out, but I accidentally wrote "expelled" in the first sentence where I meant "suspended." This should be clear that I messed up the wording since the next sentence gives the actual expulsion stats.