The College Fix

One of the first things I noticed in my Twitter feed after President Trump made his pick for the US Supreme Court vacancy was the story of a school discipline matter which makes nominee Neil Gorsuch appear to be rather … libertarian in his views.

The Washington Post’s Valerie Strauss naturally has to maintain The Narrative^(TM) with her description of Gorsuch as “ultraconservative,” but nevertheless notes the “unusual” case involving a middle school student who kept annoying his gym teacher with fake belches.

The official court order says the student “had generated several fake burps, which made the other students laugh and hampered class proceedings.” The teacher called for assistance with her walkie-talkie, whereupon a school resource officer (SRO — a cop) arrived and arrested the boy.

The student’s mother took two school officials and the officer to court, claiming “unlawful arrest and excessive force.” The 10th Circuit Court ultimately upheld a previous decision in favor of the school’s actions; however, Gorsuch dissented:

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.

The simple fact is the New Mexico Court of Appeals long ago alerted law enforcement that the statutory language on which the officer relied for the arrest in this case does not criminalize “noise[s] or diversion[s]” that merely “disturb the peace or good order” of individual classes […] Instead, the court explained, the law requires “a more substantial, more physical invasion” of the school’s operations — proof that the student more “substantially interfered” with the “actual functioning” of the school. …

MORE: Progressive enclaves grow weary of lax school discipline policies

Often enough the law can be “a ass — a idiot,” Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838) — and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. 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 — and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass [sic] as they do. I respectfully dissent.

Does this sound “ultraconservative” to you?

Let’s be real here: I don’t know of any teacher who hasn’t had to deal with a situation like this (or worse) … and especially one who felt the need to contact the SRO to have a kid arrested for such.

The official court order in this case indicates the teacher had sent the burping student into the hallway, yet he continued to burp and giggle loud enough to be heard by the class. Why not send him to a “time out room” so that the disruptions would cease? If the school didn’t have such a space, why not have him go to the (assistant) principal’s office for “normal” school discipline — like a detention or suspension?

With such an opinion, should not Judge Gorsuch be supported by those who bemoan the supposed “school-to-prison pipeline“?

I believe SROs do have a place in schools, most especially those plagued by violence; however, I’ll never forget the words of my very first principal, a good man who had taught for over 25 years before moving to administration: “Always remember, Dave: rules with a human face.”

MORE: ‘Liberal discipline policies’ are making schools dangerous

MORE: Schools resort to police too often … for ‘routine’ discipline?

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