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