Corporal punishment in American public schools and the rights of the child
They say hard cases make bad law. Ingraham v. Wright was a hard case.1 In Ingraham, several junior high school students and their parents filed an action in federal district court pursuant to 42 U.S.C. 1981-1988 alleging that school administrators in the Dade County, Florida school system used excessive corporal punishments violating their rights to bodily integrity.2 The disciplinary punishment was excessive and disproportionate with the offenses committed. One plaintiff received more than twenty licks with a half-inch thick wooden paddle while being forcibly held over a table just because he was slow to respond to the teacher’s instructions. The beatings resulted in a hematoma that required medical treatment and ten days absence from school.3 Another plaintiff was beaten about the back, neck, and arm for alleged tardiness.4
The plaintiffs in Ingraham v. Wright requested relief on three separate constitutional grounds: a violation of Eighth Amendment rights, a violation of the Due Process Clause of the Fourteenth Amendment, and a violation of their substantive due process right to physical integrity.5 The Supreme Court granted certiorari on only two issues: whether disciplinary corporal punishment of public school students violates the Eighth Amendment’s prohibition of cruel and unusual punishment, and whether procedural due process requires notice and an opportunity to be heard prior to the imposition of corporal punishment.6
The Court expressed no outrage that the Dade County school officials rendered brutal and disproportionate punishments for minor offenses and trivial indiscretions.7 Instead of either condemning the school officials for using excessive disciplinary tactics or expressing its abhorrence of corporal punishment, the Court’s silence trivialized the notion that schoolchildren have a constitutional right to be free from physical abuse. The Court’s holding conveyed the message that only upon grievous loss would a child possibly have a claim under (sec) 1983 against state actors for excessive, wanton, and unreasonable corporal punishment.
The focus of this paper is the administration of corporal punishment to children in the American public school system. First, this paper will address the history of corporal punishment and the justification for its use. Second, this paper will discuss Ingraham v. Wright, and the question of a student’s constitutional rights under the Eighth and Fourteenth Amendments. Finally, this paper will argue that the standard imposed for finding a violation of a student’s substantive due process rights is unnecessarily harsh and callous.
Corporal punishment is the willful and deliberate infliction of physical pain on the person of another to modify undesirable behavior.8 The more familiar forms of corporal punishment are slapping, spanking, and paddling the buttocks.9 The more cruel and abusive forms include piercing the skin with straight pins, hitting with blunt objects, breaking bones, painful limb contortions, excessive exercise and smacking across the genitals.10
Corporal punishment is neither a neophyte nor a newcomer to American culture.11 In some form or other, corporal punishment pre-dates the founding of the United States.12 Today, corporal punishment finds its justifications in two distinct areas. One of these is the need of parents to control and properly rear their children.13 The Supreme Court has never held that a parent cannot use corporal punishment to discipline his or her child. Likewise, many would argue that a parent, charged with the training and upbringing of a child, has the inherent right to adopt such disciplinary measures that will enable the parent to discharge that parental duty.14 However, a parent’s right to use corporal punishment does have its limits. According to common law, a parent cannot resort to punishment which would “exceed that properly required for disciplinary purposes or which would extend beyond the bounds of moderation.” Excessive or cruel conduct is universally prohibited.15
The second justification for the use of corporal punishment is the interest of the state, as both protector and educator, in controlling the child’s behavior and providing for the safety and security of children entrusted to its care.16 The laws of many states allow those entrusted with the care of children to use reasonable and necessary forms of corporal punishment. In Kentucky the law permits the use of physical force by a defendant upon another person when the defendant is a parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person.17 Kentucky specifically carves out an exception for teachers and others entrusted with the care and supervision of children which allows these individuals to administer corporal punishment. Under this exception, commonly called the “teacher justification statute,” a teacher or other person entrusted with the care of a minor can use necessary force to promote the welfare of children and to maintain reasonable discipline.18
In Goss v. Lopez, a case involving procedural due process in school suspensions, the Supreme Court recognized that some form of discipline may be necessary to maintain order in the classroom.19 The state as educator does have a substantial and compelling interest in providing a sound education for school children within its jurisdiction. Maintaining order in the classroom and conducting its services in a manner that promotes learning and safety are perhaps paramount in this process.20 Without the existence of some form of disciplinary sanctions for misbehavior, those students who desire to learn may be unfairly deprived of that privilege.21
However, imposing excessive corporal punishment on a student does not further the state’s compelling interest in providing a sound education. Excessive corporal punishment is oppressive, abusive, and dehumanizing. There is little possibility that such patterns of discipline can be reasonable and necessary state actions substantially related to some important and compelling objective. The sad fact is that almost half the states in the union still allow the use of corporal punishment in public schools as a variable means of discipline.22
The focus of the Court in Ingraham v. Wright, however, was not necessarily on the use of corporal punishment as a means of discipline, but rather if its excessive use on students amounted to a constitutional violation.
The first issue before the Court was whether the Eighth Amendment protected public school students from cruel and unusual punishment. The Eight Amendment states “excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.”23 Rather summarily, the Court held that the Eighth Amendment’s protection against cruel and unusual punishment was designed specifically to protect prisoners convicted of a crime.24 Relying on its past holdings concerning the protection from cruel and unusual punishment, the Court restricted the application of the Eighth Amendment to criminal circumstances only.25
The Court held that public school children and convicted prisoners were not similarly situated so as to warrant equal protection under the amendment. The particular situation of a criminal prisoner differed vastly from that of a student.26 First, whereas a prisoner has committed an offense against the law and is removed from society by incarceration, the offense of infraction committed by the student is non-criminal and does not rise to a level requiring substantial deprivation of liberty. Second, the institution of a prison is dissimilar from that of a school. The prison’s main purpose is to remove an offender from society at large and to require the offender to pay for the crimes committed. A school, on the other hand, is an institution committed to education and growth. In performing that duty, the Court held that teachers and public school administrators are privileged at common law to inflict only such corporal punishment as is reasonably necessary for the proper education and discipline of the child.27
The Court drew the distinction of openness as its final reason for denying school children the protections of the Eighth Amendment.28 A school, unlike a prison, is open. Parents can talk freely with their children, teachers, and administrators. Parents can also participate in parent-teacher associations and can vote in school board elections, thereby making their opinions known. The Court maintained that the openness of public schools and their supervision by the community afford significant safeguards against the kinds of abuses from which the Eighth Amendment protects the prisoner.29 The threat of civil and criminal liability for excessive use of force serves as a powerful curb on the consequences of excessive corporal punishment. Therefore, the Court concluded, as long as the schools are open to public scrutiny, there is no reason to believe that these common-law constraints would not effectively remedy and deter excess use of force in administering corporal punishment.30
The irony of the Court’s holding is summarized in Justice White’s dissent: a convicted criminal can seek federal relief from corporal punishment, but a public school student cannot.31 Justice White argued that the Eighth Amendment places a flat prohibition against the infliction of “cruel and unusual” punishments. In his view, the spirit of the Eighth Amendment reflects society’s judgment that there are some punishments so barbaric and inhumane that they will not be permitted to be imposed on anyone. Therefore, the same protections that apply to criminally-convicted prisoners should also extend to schoolchildren whose acts are less culpable.32 Further, White argued that school children and prisoners are not as dissimilar as the majority implied. Discipline in a school setting is an institutionalized response to the violation of some official or regulation. The punishment is not only rehabilitative, but serves as a deterrent and a form of retribution.33
The flaw in the Court’s refusal to extend similar protections to schoolchildren is easily demonstrated. In Nelson v. Heyne, juvenile inmates at an Indiana correctional institution brought an action against the state seeking injunctive relief from routine paddling conducted by prison guards. The Seventh Circuit found substantial evidence of excessive use of corporal punishment, noting that the practice was easily manipulated by the sadistic, lacked formal control, and frustrated the correctional and rehabilitative goals of the institution.34 The court held that corporal punishment under these circumstances served neither disciplinary nor punishment purposes. Imposing corporal punishment on juvenile prisoners served only to breed more anger and engender aggression.35
The Court was extremely cautious in not extending the Eighth Amendment’s prohibition of cruel and unusual punishment to public school children. In Trop v. Dulles, the Court had stated that the meaning of the Amendment must “be drawn from the evolving standards of decency that mark the progress of a maturing society.”36 According to the “dignity of man” standard announced in Trop, imposition of excessive and brutal corporal punishment on school children is hardly the hallmark of a maturing and decent society. The Ingraham court successfully sidestepped its previous holding in Trop, however, choosing instead to perpetuate corporal punishment, at whatever cost, as a viable means of discipline in public schools.
The Court’s failure in Ingraham to interpret the Eighth Amendment in a “flexible and dynamic” manner” trivialized the student’s need for protection from excessive or disproportionate physical discipline. Further, the Court’s holding petrified a system of state-institutionalized child abuse from which the child’s only remedy is ex post facto compensation. By refusing to extend the proscriptions of the Eighth Amendment to students in public schools, the Court in essence held that the student has no constitutional right to be free from cruel and unusual punishment. Hence, no form of corporal punishment administered by school officials, no matter how unusual, brutal or abusive, would ever offend the Eighth Amendment.
The plaintiffs in Ingraham also claimed a violation of their Fourteenth Amendment right to a due process hearing prior to receiving corporal punishment.38 The Fourteenth Amendment guarantees protection against state deprivation of life, liberty or property without due process of law.39
The Court in Ingraham held that corporal punishment in public schools does implicate a constitutionally-protected liberty interest.40 Where school authorities, acting under color of state law, deliberately punish a student for misconduct by restraining the student and inflicting appreciable physical pain, the Fourteenth Amendment liberty interest is implicated.41
Despite the existence of a constitutionally-protected liberty interest, the Court held that no additional procedures outside the administrative laws concerning corporal punishment, coupled with its common law limitations, were needed.42 In reaching this decision, the Court relied on its earlier opinion in United States v. Lovett.43 Following its logic in Lovett, the Court held that a universal constitutional requirement imposing a hearing, informal or formal, would significantly burden the use of corporal punishment as a disciplinary measure.44
As in its Eighth Amendment discussion, the Court’s focus was not on preserving the child’s constitutionally-protected liberty interest. Rather, the Court focused on the need of school administrators to lawfully use corporal punishment as a means of discipline. The Court tempered its previous finding that a student has a liberty interest in bodily integrity by concluding that the student’s interest in avoiding corporal punishment is subject to historical limitations.45 Given this country’s long and sordid history of supporting the use of corporal punishment against children, the Court’s “limitations” are virtually nonexistent. Instead of tipping the scales in favor of either banning or minimizing the use of corporal punishment in public schools, the Court said nothing. Its silence indicated that a student’s constitutional right to bodily integrity was merely puffery and lip-service.
Quoting its decision in Mathews v. Eldridge, the Court held that “at some point the benefit of an additional safeguard to the individual affected [by the state’s choice to administer corporal punishment] and to society in terms of increased assurance that the action is just, may be outweighed by the cost.”46 Additionally, the Ingraham Court stated:
We think that point has been reached in this case. In view of the low incidence of abuse, the openness of our schools, and the common-law safeguards that already exist, the risk of error that may result in violation of a schoolchild’s substantive rights can only be regarded as minimal. Imposing additional administrative safeguards as a constitutional requirement might reduce the risk marginally, but would also entail a significant intrusion into an area of primary educational responsibility.47
With that final blow, the plaintiffs’ claims were dismissed. Arguably, the student should have some constitutional redress for the deprivation of his or her protected liberty interest. However, the Court’s seeming indifference to the plight of school children in public schools has been interpreted by federal courts to represent disinterest and great deference to the states.
The Court in Ingraham did not grant certiorari to the substantive due process claim. It would have been extremely unlikely for the Court to find that the plaintiffs had a substantive right to due process after flatly denying their other constitutionally-based claims. The Court’s silence on this issue opened the door for lower federal courts to review the Ingraham decision.
A substantive due process inquiry focuses on three issues: one, whether the amount of force applied was so severe that it was disproportionate to the need presented; two, whether the punishment was inspired by malice or sadism rather than excess zeal that amounted to brutal and inhumane abuse; and third, whether the punishment was so inappropriate and the injury so severe that it was “shocking to the conscience.”48
In Hall v. Tawney the Fourth Circuit held that, while disciplinary corporal punishment does not by itself violate a child’s substantive due process rights, a cognizable claim may be stated when it is “based upon a episodic application of force not authorized by state law or policy.”49 In Hall, the plaintiff, a sixth grader, was without justifiable provocation forcibly shoved against a desk and struck repeatedly by a male teacher with a thick, hard rubber paddle. The student was hospitalized for ten days and suffered possible permanent injuries to her spine.50
In Ingraham the Supreme Court recognized that the infliction of corporal punishment in public schools implicated a protected liberty interest under the Fourteenth Amendment. The Hall court held that the student’s interest in bodily security could not be violated by the mere imposition of corporal punishment.51 However, when the punishment imposed is so excessive and egregious that it can no longer be viewed as relating to the state’s interest in maintaining order in the classroom, substantive due process rights may be implicated.52
The line of demarcation between tolerable corporal punishment and intolerable capital punishment is drawn to favor the school and state, not the student. In order for it to be viewed as actionable against the state, the punishment must be “shocking to the senses.”53 Under this standard, a child must be severely beaten, like the plaintiff in Hall, before the federal courts will recognize a possible constitutional violation. Only where the force applied is so severe that it causes lasting injuries, is so disproportionate to the need presented, and is inspired by malice and sadism and is not the result of carelessness, will it be deemed to shock the conscience.54
This standard is too harsh and too high to provide adequate protecting for public school children in those districts that utilize corporal punishment. Instead of using a common sense approach to determine when excessive corporal punishment has been administered, the courts require the victim to prove that school officials acted in a sadistic, malicious, brutal, abusive and inhumane manner. In Cunningham v. Beavers, two kindergarten children were beaten excessively for “snickering.”55 Each child was forcibly administered five licks from a wooden paddle. The beating was so severe that local child welfare authorities characterized the punishment as child abuse.56 Despite the severity of the injuries, the Fifth Circuit Court, relying on Ingraham, held that the punishment did not rise to such a level that it implicated the children’s substantive due process rights.57
The standard should be changed to one that provides a higher level of protection for children. When the Court determines that a student has a right, based upon the notions of an ordered society, to be free of excessive physical punishment, the government and state should be bound by that finding. Moreover., state actors should not deprive a public school student of his or her constitutional right without some supremely compelling interest. Mere discipline is not a compelling interest.
It is undeniable that the state as educator does have a substantial and compelling interest in providing a sound education for children within its jurisdiction. Maintaining order in the classroom and conducting its services in a manner that promotes learning and safety are perhaps paramount in this process. Without the existence of some form of disciplinary sanctions for misbehavior, those students who want to learn may be unfairly deprived of that privilege. However, the state should be required to administer the least restrictive form of corporal punishment in order to achieve its intended result. Imposing excessive corporal punishment does not further the state’s compelling interest in providing a sound education.
It is time that the federal courts revisit the ruling in Ingraham v. Wright. Specifically, it is time that the lower federal courts focus not on the long and sordid tradition of corporal punishment in schools but instead, focus on the fact that a public school student has a constitutionally-protected liberty interest in bodily integrity. The courts owe children the duty to protect this interest and to afford relief when necessary. Although a state court remedy might be possible under tort law, a state court is not the proper arena for handling constitutional issues. A state remedy will never be adequate. It is time for federal courts to recognize that the state has no compelling interest in the educational sense of imposing punishment that causes either physical or psychological harm to a student. Over half the states have abandoned the practice of administering corporal punishment in public schools. This is a sign of an evolving society. The federal courts should not turn a blind eye to the evolving standards of decency that mark the progress of our maturing society. They should be encouraged and required to supplement that progress with judicial action that conforms both to the Constitution and reflects the positive developments within society.
1. See Ingraham v. Wright, 430 U.S. 651 (1977).
2. See id. at 651.
3. See id. at 657.
4. See id.
5. See. id. at 683.
6. See id. at 653.
7. See id. at 657.
8. American Academy of Pediatrics Committee on Psycho-social Aspects of Child and Family Health Policy Statement, Guidance for Effective Discipline, 101(4) PEDIATRICS, 723-28 (1998).
9. 13 JOURNAL OF ADOLESCENT HEALTH 240-46 (1992).
10. See Brooks v. School Bd., 569 F. Supp. 1534 (E.D. Va. 1983); Meyer v. Litwiller, 749 F. Supp. 981 (W.D. Mo. 1990); Crews v. McQueen, 385 S.E. 2d (Ga. Ct. App. 1989); Willoughby v. Lehrbass, 388 NW.2d (Mich. Ct. App. 1986); Waechter v. Sch. Dist., 773 F. Supp. 1005 (W.D. Mich. 1991); Mott v. Endicott Sch. Dist., 713 P.2d 98 (Wash. 1986) respectively.
11. See Irwin A. Hyman, Reading, WRITING AND THE HICKORY STICK: THE APPALLING STORY OF PHYSICAL AND PSYCHOLOGICAL ABUSE IN AMERICAN SCHOOLS 30-34 (1990).
12. See id., stating that corporal punishment was practiced during the colonial period.
13. 59 Am Jur. 2d Parent and Child 22 (1988).
14. See Meyers v. Nebraska, 262 U.S. 390 (1923); Pierce v. society of Sisters, 268 U.S. 510 (1925), both holding that a parent has an interest in directing the upbringing and education of the child. See also 1 WILLIAM BLACKSTONE, COMMENTARIES *453-54 stating that the parent has the power to lawfully correct his child in a reasonable manner for the benefit of his education.
15. See Bowers v. State, 389 A.2d 341 (Md. 1978).
16. See Planned Parenthood v. Danforth, 428 U.S. 52 (1976).
17. See KRS 503, 110(1).
18. See id.
19. See 419 U.S. 565, 580 (1975).
20. See Cumming v. Richmond County Bd. of Educ., 175 U.S. 528 (1899).
21. See Ingraham, 430 U.S. at 657.
22. As of November 2000, the following states allowed corporal punishment in public schools: Alabama, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Wyoming.
23. U.S. CONST. amend. VII.
24. See Ingraham, 430 U.S. at 671.
25. See id. at 666-67.
26. See id. at 669,
27. See id. at 670.
28. See id.
29. See id.
30. See id.
31. See id. at 684 (White, J., dissenting).
32. See id.
33. See id. at 685-86.
34. See Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974).
35. See id. at 355-56.
36. Trop v. Dulles, 356 U.S. 86, 101 (1958).
37. Gregg v. Georgia, 428 U.S. 153, 173 (1976).
38. 430 U.S. at 653.
39. U.S. CONSTIT. amend. XIV.
40. See Ingraham, 430 U.S. at 673-74.
41. See id. at 674.
42. See id. at 681-83.
43. United States v. Lovett, 328 U.S. 303, 317-18 (1946).
44. See 430 U.S. at 675.
45. See id.
46. Id. at 682 (quoting Mathews v. Eldridge, 424 U.S. 319, 348 (1976)).
47. See id.
48. Webb v. McCullough, 828 F.2d 1151, 1158 (6th Cir. 1987).
49. Hall v. Tawney, 621 F.2d 607, 611 (4th Cir. 1980).
50. See id. at 614.
51. See id. at 611.
52. See id.
53. Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973).
54. See id.
55. 858 F.2d 269 (5th Cir. 1988), cert denied, 489 U.S. 1067 (1989).
56. See id. at 271.
57. See id. at 272.
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