Houston Institute Joins Coalition Urging Rehearing En Banc in Tenth Circuit School-Based Arrest

The case of A.M. v. Holmes involved a 13-year-old middle school boy arrested for faking burps during his P.E. class in Albuquerque, New Mexico. Once told to go to the hallway, he stuck his head back inside to belch, and in response a school resource police officer placed the child under arrest “for interfering with the educational process.” This child spent approximately one hour locked in a juvenile detention facility before he was released to the custody of his mother. He was never charged for his misbehavior. The boy’s mother brought a civil rights lawsuit against school officials and the arresting officer alleging that the officer did not have probable cause to arrest the belching boy. This dispute ultimately reached the Tenth Circuit Court of Appeals, which interpreted a state code to allow criminalizing “a wide swath of conduct that interferes with the educational process,” including “burping, laughing, and leaning into the classroom” which “stopped the flow of student educational activities.”

We joined the Children’s Law Center, Inc., Juvenile Law Center, Public Counsel, Texas Appleseed, and Youth Sentencing and Reentry Project in arguing that the Tenth Circuit should take the case en banc because the Tenth Circuit’s majority opinion permits law enforcement officers to arrest schoolchildren for doing nothing more than acting like children—“burping, laughing, and leaning into the classroom [from the hallway].” Criminalizing the behavior of the class clown is no laughing matter. While the law under which F.M. was charged purportedly aims to limit school disruption, extending the reach of this law to such commonplace behavior will instead have grave consequences for the children of New Mexico—and in particular, for children of color and children with disabilities—by diverting these young people away from the instruction and opportunities of the classroom and channeling them into the criminal justice system. This disruption of their educational experience will severely impair their education, health, and life chances. The majority opinion gives law enforcement almost unlimited discretion to arrest children, resulting in disproportionate consequences for children who are most at risk. As the dissent points out, this absurd result is not compelled by clearly established law.

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