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April 2001: Vol. 188, No. 4
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School Law

A shock to the conscience: The Due Process Clause and corporal punishment. By Benjamin Dowling-Sendor.

Does the Constitution place any limits on the severity of corporal punishment that school employees may give to public school students? The U.S. Supreme Court ducked that question in 1977, but in a recent federal case from Georgia -- Neal ex rel. Neal v. Fulton County Board of Education -- the 11th U.S. Circuit Court of Appeals joined five other federal appeals courts in ruling that the 14th Amendment's Due Process Clause does indeed protect students from extreme forms of corporal punishment.

The 11th Circuit joined the 3rd, 4th, 6th, 8th, and 10th Circuits in holding that the Due Process Clause protects students from corporal punishment that is "intentional, excessive, and creates a foreseeable risk of serious injury."

I'll begin with a disclaimer about the facts of the case. The legal question addressed by the 11th Circuit is whether the corporal punishment challenged in this case violated the Due Process Clause if the factual allegations made by plaintiff Durante Neal about the circumstances and infliction of punishment by his football coach, Tommy Ector, are correct.

Because the 11th Circuit based its decision on Neal's allegations about the facts, my discussion also rests on those allegations. One of the attorneys for the defendants says they dispute important factual allegations by Neal (including the key question of whether Coach Ector was the person who struck him) and note that a school district investigation cleared Ector of wrongdoing.

"I am going to hit you ..."

Here are Neal's allegations: In 1996 Neal was a 14-year-old freshman and a member of the varsity football team at Tri-Cities High School, in East Point, Ga., near Atlanta. Another player, Royonte Griffin, slapped Neal during a practice. Neal reported the incident to Coach Ector, who responded that Neal had to "learn how to handle your own business."

Neal put a weight lock in his gym bag. After practice, Griffin approached Neal again. Neal took the weight lock out of the bag, struck Griffin in the head with it, and put it back in the bag. Neal and Griffin then began to fight.

Coach Ector and Principal Herschel Robinson were in the immediate area of the fight, but neither man stopped it. Instead, Ector dumped the contents of Neal's gym bag on the ground and shouted repeatedly, "What did you hit him with? If you hit him with it, I am going to hit you with it." In Robinson's presence, Ector hit Neal in the left eye with the weight lock. According to Neal's allegations, the blow knocked Neal's left eye out of its socket, destroying the eye and causing severe pain.

Neal sued Ector, Robinson, Superintendent Stephen Dolinger, and the school board in federal district court, claiming Ector's use of corporal punishment violated Neal's right to due process under the 14th Amendment because it was so excessive as to shock the conscience. Neal also contended that the school board, Dolinger, and Robinson violated his due process rights by failing to train, properly instruct, and supervise Ector, and that their alleged failure established a custom in the Fulton County school district that resulted in Ector's violation of Neal's rights.

The district court dismissed Neal's suit without a trial for two reasons. First, the court ruled that the 5th Circuit's 1976 decision in Ingraham v. Wright -- a ruling upheld the next year by the U.S. Supreme Court, but on different grounds -- established that the Due Process Clause does not protect a student from excessive corporal punishment. (Keep in mind that Congress divided the old 5th Circuit into the 5th and 11th Circuits after 1976, so the Ingraham decision is binding precedent in both courts.) In addition, the district court concluded that although Ector's "reactive and spontaneous" conduct might have been an assault under state law, it was not corporal punishment.

A decision reversed Pull quote

Neal appealed the district court's dismissal to the 11th Circuit, and in a 2-1 decision, the appellate court reversed the dismissal and reinstated his suit. Writing for the majority, Judge Stanley Marcus found that Ector's conduct was corporal punishment rather than a spontaneous reaction to a fight between students. As Marcus explained, Ector's statement -- "If you hit him with it, I'll hit you with it" -- showed that Ector was disciplining Neal. Also, Ector did not use force simply to restore order or to separate fighting students. According to Neal's allegations, Ector never tried to break up the fight. Since Ector intended to discipline Neal for misconduct, Ector's conduct amounted to corporal punishment.

The harder question was whether the Due Process Clause can be interpreted to protect students from excessive corporal punishment. The only similar case in the 11th Circuit was the former 5th Circuit's 1976 decision in Ingraham v. Wright. In that case, the 5th Circuit ruled that paddling and spanking incidents involving two students did not violate the Due Process Clause because the punishments were imposed under a school board policy that contained sufficient limitations on school employees to prevent arbitrary infliction of corporal punishment. The 5th Circuit held that it would not scrutinize individual episodes of corporal punishment if employees administered punishment in accord with such procedural safeguards.

In contrast, Judge Marcus observed, Ector certainly was not pursuing school board policy when he struck Neal in the eye with a metal weight, and school officials did not authorize him to engage in such conduct as punishment. Ector's unauthorized act lacked the procedural protections that shielded the punishments challenged in Ingraham from the former 5th Circuit's scrutiny.

Finally, Judge Marcus addressed the central question in the case: whether the Due Process Clause should be interpreted to prohibit excessive corporal punishment. Marcus acknowledged that personal injury claims against government officials and agencies generally do not convert into claims under the U.S. Constitution. However, Marcus wrote, in certain situations, excessive corporal punishment can violate the Due Process Clause. He explained that the clause protects individuals against government action that is arbitrary or shocks the conscience. Government action shocks the conscience if it is intended to injure a person's interests in a way that cannot be justified by a legitimate government interest. Go to: School Law Archive

Judge Marcus noted that although the Supreme Court did not directly address in Ingraham the question raised here, it nevertheless suggested in Ingraham that the Due Process Clause could limit the severity of corporal punishment. In that case, the high court ruled that corporal punishment does affect a protected liberty interest under the Due Process Clause. Moreover, the court stated in Ingraham that corporal punishment does not violate the Due Process Clause "as long as" a school employee uses reasonable force to discipline a student. That statement clearly suggests that excessive corporal punishment could violate the Due Process Clause.

Shocking the courts

Marcus then noted that federal courts of appeals in five other circuits have ruled that excessive corporal punishment violates the Due Process Clause if it is so brutal and harmful that it shocks the court's conscience. Marcus wrote that the five other circuits have found a violation of due process if a school employee intentionally used a degree of force that clearly was excessive under the circumstances and if the force created a reasonably foreseeable danger of seriously injuring the student.

Three factors have helped courts determine whether punishment was excessive in a particular case: the need for corporal punishment in that case, the relationship between the need and the amount of punishment administered, and the extent of the injury inflicted on the student. Writing for the 11th Circuit, Marcus sided with the five other courts in concluding that the Due Process Clause does apply to excessive corporal punishment. He stressed that the clause applies only if a student's injury is truly serious -- such as Neal's loss of an eye -- and that minor injuries usually resulting from paddling or spanking would not qualify.

Only the 5th Circuit rejects the position that the Due Process Clause prohibits excessive corporal punishment. That court rejects federal claims of due process violations for excessive corporal punishment if students have adequate state law remedies available.

In this case, if Neal's allegations are correct, then Ector's conduct would violate the Due Process Clause. Even if Ector had authority to administer some type of corporal punishment in that situation, Neal alleged that Ector intentionally used a degree of force that was obviously excessive and that created a foreseeable danger of serious physical harm.

Ector did not use that force to break up the fight, and he did not use an amount of force that might have served as effective punishment. Rather, Ector saw the fight, searched Neal's bag, shouted that he would hit Neal with whatever Neal had used against Griffin, and then hit Neal with the weight so hard that it knocked out his eye. That punishment was clearly excessive and it certainly created a foreseeable risk of serious harm to Neal.

Judge J. L. Edmondson dissented from Judge Marcus' majority decision without writing a dissenting opinion.

The case has now returned to the district court, where the parties will prepare for trial. Some or all of the defendants probably will ask the court to dismiss the claims against them on the basis of theories of immunity that sometimes shield government agencies and officials from lawsuits seeking damages for alleged constitutional violations.

Drawing the line

Judge Marcus' opinion is persuasive, in my view. Even those who support corporal punishment have to acknowledge that the Due Process Clause must apply at some point to limit such punishment. Surely, we would all agree, for instance, that imposing the death penalty or amputating a hand of a student would so shock our consciences that we would find a due-process violation. The question, then, is not whether the Due Process Clause applies, but when it applies. I believe that Judge Marcus has set forth helpful factors for deciding whether corporal punishment complies with the Due Process Clause.

As a personal matter, I feel any corporal punishment of students is inappropriate. As a legal matter, though, Judge Marcus' analysis seems to provide helpful guidance to school officials to determine when corporal punishment is lawful. Remember, the 11th Circuit's standards represent minimum criteria for evaluating the propriety of corporal punishment under the U.S. Constitution. State laws can be more restrictive. Also, state laws might establish different criteria from federal law for determining whether and when school districts, school officials, and school employees may be sued for personal injuries to students.

School officials should consult their board attorneys to determine the laws that apply in their particular states and to make sure that their board policies comply with federal and state law. And school officials should make sure that employees clearly understand the laws and board policy governing corporal punishment.


Benjamin Dowling-Sendor, an authority on school law, is an assistant appellate defender of North Carolina in Durham.

Copyright © 2001, National School Boards Association. American School Board Journal is an editorially independent publication of the National School Boards Association. Opinions expressed by this magazine or any of its authors do not necessarily reflect positions of the National School Boards Association. Within the parameters of fair use, this article may be printed out and photocopied for individual or educational use, provided this copyright notice appears on each copy. This article may not be otherwise, linked, transmitted, or reproduced in print or electronic form without the consent of the Publisher. For more information, call (703) 838-6739.

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