Originally posted on Education Law Prof Blog where Professor Nance was a guest blogger. Read the original post here.

On May 19, 2011, F.M., a thirteen-year-old seventh grade student at Cleveland Middle School of Albuquerque Public Schools, generated several fake burps during class, causing several students to laugh. The teacher ordered F.M. to stop, but F.M. ignored her. The teacher then asked F.M. to leave the classroom and sit in the hallway. F.M. complied, but once in the hallway, he continued to disturb the classroom by leaning into the entranceway of the classroom to burp and laugh. At that point, the teacher requested assistance with the student on a school-issued radio. A school resource officer (SRO) appeared in response to her request. Based on what the SRO observed and heard from the teacher, the SRO decided to arrest F.M. for violating N.M. Stat. Ann. § 30-20-13(D), which says that “[n]o person shall willfully interfere with the educational process of any public or private school by committing . . . any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of a public or private school.” The SRO conducted a pat-down search on F.M. and found nothing, handcuffed him, put him in a patrol car, drove him to a juvenile detention center, and booked him. The SRO later admitted that F.M. did not pose a flight risk and was not combative, but was cooperative. After the juvenile detention center completed its risk assessment of F.M., it released him to the custody of his mother with no further action. The school, however, imposed a one-day suspension. F.M. served his suspension and did not return for the remainder of the school year.

F.M.’s mother filed a suit against the SRO on behalf of her son claiming that his Fourth Amendment rights were violated when her son was arrested and handcuffed. She claimed that any reasonable officer should have known that burping was not a criminal offense and that the force used to facilitate the arrest was unnecessary. The United States Court of Appeals for the Tenth Circuit, however, upheld the lower court’s dismissal of the case, awarding the SRO qualified immunity. According to the court, the plaintiff had failed to establish that the SRO violated a constitutional right of F.M.’s that was clearly established at the time of the alleged unlawful activity. The Tenth Circuit based its ruling primarily on its determination that the SRO’s understanding that he had probable cause to arrest F.M. under section 30-20-13(D) was “objectively reasonable—even if mistaken.”

While one could disagree with the majority over whether the SRO violated F.M.’s “clearly established” constitutional right (as one circuit judge on the panel did), to me a larger question remains that the court could not address: why do we allow law enforcement officers to become involved in student behavioral matters that do not endanger other members of the school community? This is not to say that we shouldn’t hold students accountable for misbehaving in the classroom.  We should. But as I explain here, the consequences of involving a youth in the justice system are severe for both the youth involved and for our nation as a whole. In fact, even an arrest that does not ultimately result in an incarceration can have detrimental, life-altering effects on students. Several empirical studies confirm that just an arrest often leads to lower academic achievement, dropping out of school, and future involvement in the justice system. Furthermore, overly-punitive school environments generally do not lead to positive outcomes, even for those students at the school who do not misbehave. Empirical studies suggest that an overly-punitive school environment can alienate students, destabilize the learning climate, foster more disorder in the long run, and impede academic achievement for all students at the school.

As I explain elsewhere, schools do not have to (and should not) over-rely on SROs, harsh surveillance measures, and exclusionary tactics to maintain safe and orderly learning climates. Rather, there are other evidence-based measures that schools can implement to promote student discipline and safety without putting more students on a pathway from school to prison.  But if schools do choose to rely on SROs, it is essential that they enter into memorandums of understandings (MOUs) to ensure that SROs do not involve themselves in routine discipline matters with students, like burping in a classroom.

Jason Nance

Jason P. Nance is an Associate Professor of Law and the Associate Director for Education Law and Policy at the Center on Children and Families at the University of Florida Levin College of Law. He teaches education law, remedies, torts, and introduction to the legal profession. He focuses his research and writing on racial inequalities in the public education system, school discipline, the school-to-prison pipeline, students’ rights, and other issues in education law. His scholarship has been or will soon be published in the Washington University Law Review, Wisconsin Law Review, Emory Law Journal, Arizona State Law Journal, Colorado Law Review, and Connecticut Law Review among several other journals. Professor Nance currently serves as the reporter for the American Bar Association's Joint Task Force on Reversing the School-to-Prison Pipeline, where he is authoring a report and recommendations and proposing resolutions for the ABA to adopt to help dismantle the school-to-prison pipeline nationwide.

In addition to earning a J.D. at the University of Pennsylvania Law School, Professor Nance has a Ph.D. in education administration from the Ohio State University, where he also focused on empirical methodology. Prior to joining the University of Florida Levin College of Law in 2011, Professor Nance was a visiting assistant professor of law at the Villanova University School of Law and a visiting assistant professor of applied statistics at the Ohio State University's College of Education. He also was a litigation associate at Skadden, Arps, Slate, Meagher & Flom LLP for several years and clerked for Judge Kent A. Jordan of the U.S. Court of Appeals for the Third Circuit and the U.S. District Court for the District of Delaware. Before attending graduate school and law school, Professor Nance served a public school math teacher in a large, metropolitan school district.

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