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  • Writer's pictureJoanne Jacobs

Arrested for burping: The Gorsuch dissent

Remember when a 13-year-old Albuquerque boy was arrested — taken in handcuffs to a juvenile detention center — for fake burping in P.E. class? His mother sued, but the 10th Circuit U.S. Court of Appeals in Denver ruled in favor of the school district in July 2016.

Judge Neil Gorsuch, now a nominee for the U.S. Supreme Court, wrote a memorable dissent, reprinted in Valerie Strauss’s Washington Post column.

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.

When the law is “a ass — a idiot,” as Dickens put it in Oliver Twist, “there is little we judges can do about it,” Gorsuch wrote. However, “in this particular case, I don’t believe the law happens to be quite as much of a ass [sic] as (his colleagues) do. I respectfully dissent.”

Education Week reports on all the education decisions in which Judge Gorsuch participated.

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