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Boy uses Gorsuch dissent to appeal burping arrest

Pablo Martinez Monsivais / AP

The mother of a New Mexico seventh-grader who was handcuffed and arrested for burping in gym class is hoping to appeal her son's case in front of the Supreme Court, per AP. Her argument against the school relies on Neil Gorsuch — six months ago he wrote a passionate dissent from the same case when it was tried at the appellate level and they ruled in favor of the school.

Why it matters: Now, Gorsuch sits on the Supreme Court and could recuse himself from the hearing, if they decide to move forward with it. Justices typically recuse themselves from hearing cases they've already heard before joining the nation's highest court. The court could make a decision as early as Monday on whether to deny or take more time for the case.

The details: A middle school student in New Mexico made fake burping noises during gym class. His teacher decided it was too much of a disruption and she couldn't get her class under control, so she called in the school officials for help. At this middle school, the officials assigned to help resolve these cases are police officers. The boy was handcuffed, arrested, taken to juvenile detention for an hour and suspended from school for one day.

One quick thing: The above situation falls under "school disturbance laws." This entire article from Amanda Ripley in The Atlantic is well worth the read to get caught up on the state of school disturbance laws in the U.S. At least 22 states have laws that criminalize adolescents for doing things typical of adolescents — like fake burping — and that heavily contribute to the school-to-prison pipeline, especially among minorities.

The dissent: Gorsuch said it's a "step too far" to arrest a "class clown" for burping. He wrote:

"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 13-year-old to the principal's office, an arrest would be a better idea."

The dissent concluded with a passionate reference to Oliver Twist:

"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 as they do. I respectfully dissent."
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