Other Articles


CORPORAL PUNISHMENT IN PUBLIC SCHOOLS:

THE LEGAL AND POLITICAL BATTLE CONTINUES

John Dayton, J.D., Ed.D.

Published as: John Dayton (1994). Corporal Punishment in Public Schools: The Legal and Political Battle Continues. Education Law Reporter, 89, 729-740. Reprinted in Education Law Quarterly: Outstanding case comments and articles, 3, 448-459.


Opposition to corporal punishment in U.S. public schools is as old as the practice. In 1853 the Indiana Supreme Court lamented that: "The law still tolerates corporal punishment in the school-room. The authorities are all that way, and the legislature has not thought proper to interfere. The public seems to cling to a despotism in the government of schools which has been discarded everywhere else."1 While no longer permitted in U.S. prisons2 or the military,3 corporal punishment is still regularly administered in many U.S. public schools, and is supported by either express or implied statutory authority in addition to a longstanding common-law approval of the practice.4 In jurisdictions that continue to allow corporal punishment, legal and political battles against corporal punishment continue. This article reviews the continuing legal and political battles against corporal punishment in public schools and discusses the legal future of corporal punishment in view of social and legislative changes since Ingraham v. Wright.5

Opponents of corporal punishment suffered a significant legal setback in Ingraham v. Wright. Since Ingraham, opponents of corporal punishment have focused their primary efforts on political attempts to abolish corporal punishment. Through persistence, opponents of corporal punishment have made slow but steady progress toward the abolition of corporal punishment in public schools. Between 1971 and 1991 the number of states that prohibited corporal punishment grew from one state to 21 states.6 More recent information indicates that 25 states now prohibit corporal punishment.7 Although the legal battle against corporal punishment is now secondary in prominence to the political battle, nonetheless, the legal battle against corporal punishment continues.

THE LEGAL BATTLE AGAINST CORPORAL PUNISHMENT

A common-law principle has governed the use of corporal punishment in U.S. schools since before the American Revolution: Teachers may use reasonable but not excessive corporal punishment in disciplining a child.8 Despite longstanding legislative and common-law approval of corporal punishment, plaintiffs opposed to the use of corporal punishment in public schools sought legal relief under a variety of legal theories.9 Encouraged by the federal judiciary's intervention on behalf of students in Brown v. Board of Education,10 and Goss v. Lopez,11 opponents of corporal punishment turned to federal courts seeking judicial relief for students subjected to corporal punishment.

In Baker v. Owen, a student was struck twice with a paddle for throwing a ball at a time other than a designated play period. The child's parent had previously requested that the child not be corporally punished by the school, and sued in a North Carolina Federal District Court alleging that the punishment violated both the Eighth Amendment prohibition against cruel and unusual punishment, and the due process clause of the Fourteenth Amendment.12 The court rejected the Eighth Amendment claim holding that the punishment in this case did not constitute cruel and unusual punishment.13 Regarding the Fourteenth Amendment claim, the court rejected the plaintiff's assertion of a parental right to determine disciplinary methods for her child, but held that due process protections were constitutionally required.14 The court explained that at a minimum due process required that: 1) corporal punishment may not be used unless students were informed that specific misbehavior could occasion its use, and should never be employed as a first line of punishment except for antisocial or disruptive misconduct that shocks the conscience; 2) corporal punishment must occur in the presence of another school official that has been informed in the presence of the student and prior to punishment of the reason for punishment; and 3) upon parental request a written explanation of the reason for punishment and the name of the witnessing official must be provided.15 In 1975 the U.S. Supreme Court affirmed Baker v. Owen without comment.16 However, two years later in Ingraham v. Wright the U.S. Supreme Court held that procedural due process safeguards for corporal punishment were not constitutionally required.17 Although not constitutionally required, some states and local districts viewed procedural safeguards for corporal punishment like those articulated in Baker v. Owen as good educational policy, and mandated similar procedural safeguards by statute or local rules.18

In Ingraham v. Wright the U.S. Supreme Court directly addressed the constitutionality of corporal punishment.19 The evidence in Ingraham indicated that children in the plaintiffs' Florida junior high school were receiving exceptionally harsh punishment, sometimes resulting in severe injuries. For being slow to respond to a teacher's instructions, one of the students received 20 blows with a paddle while he was held over a table. The resulting hematoma required medical treatment and several days absence from school. Another student was hit on the arm so hard that he did not regain full use of the arm for a week. Other students testified regarding similar experiences.20 Plaintiffs challenged the constitutionality of these punishments. The Court considered whether corporal punishment in public schools constituted cruel and unusual punishment violating the Eighth Amendment, and whether the Fourteenth Amendment required due process procedures prior to the administration of corporal punishment.21 In deciding the Eighth Amendment issue the Court held that the prohibition against cruel and unusual punishment was designed to protect those convicted of crimes, and was inapplicable to the paddling of students as a means of maintaining discipline in public schools.22 The Court further reasoned that the openness of the public school and its supervision by the community provided sufficient protections against cruel and unusual punishment of students.23 In deciding the Fourteenth Amendment issue the Court found that "corporal punishment in public schools implicates a constitutionally protected liberty interest, but we hold that the traditional common-law remedies are fully adequate to afford due process."24 Because of the availability of state remedies for corporal punishment the Court held that procedural due process protections such as those identified in Baker v. Owen were not constitutionally required.25 Although holding that procedural due process protections were not constitutionally required, the Court declined to decide whether under certain circumstances the use of corporal punishment might nonetheless give rise to a federal cause of action to vindicate substantive due process rights.26

The Court's decision in Ingraham v. Wright precluded federal constitutional challenges to corporal punishment based on cruel and unusual punishment under the Eighth Amendment or procedural due process under the Fourteenth Amendment. The continuing legal battle against corporal punishment has focused on the issue left open by the Court in Ingraham: Whether a federal cause of action based on substantive due process rights is available to victims of excessive corporal punishment.


Courts Recognizing a Federal Cause of Action Based on Substantive Due Process Rights for Excessive Corporal Punishment

In Hall v. Tawney, the Fourth Circuit Court of Appeals held that "there may be circumstances under which specific corporal punishment administered by state school officials gives rise to an independent federal cause of action to vindicate substantive due process rights under 42 U.S.C. 1983."27 The court in Hall articulated a standard for determining whether excessive corporal punishment violated substantive due process rights under the U.S. Constitution regardless of state remedies. Under the Hall test courts should consider: 1) the severity of the injury caused by the punishment; 2) the proportionality of the force applied to the need presented; and 3) whether the force was so inspired by malice or sadism that these elements amounted to a brutal and inhumane abuse of power shocking to the conscience.28 In Hall, a 7th grade student at a rural West Virginia school had been beaten so severely with a thick rubber paddle that she had to receive emergency medical treatment and was hospitalized for 10 days.29 The court remanded the case for reconsideration of the substantive due process claim.

In Webb v. McCullough the Sixth Circuit Court of Appeals adopted the Hall test for determining whether a school official's actions violated substantive due process rights.30 In Webb, a high school student alleged that while on a field trip her school's principal burst through the bathroom door in her room knocking her to the ground, then grabbed her from the floor, threw her against the wall, and slapped her.31 The Court remanded the case for a determination of whether under the Hall test, the principal's actions violated the student's substantive due process rights.

The Hall test was also adopted by the Tenth Circuit Court of Appeals in Garcia v. Miera, except that the court rejected the elements of malice or sadism and instead presumed that the defendant had the requisite state of mind where the other elements of the Hall test were satisfied.32 In Garcia the court recognized three categories of corporal punishment based on the court's interpretation of Ingraham: 1) punishments that do not exceed the traditional common-law standard of reasonableness and are not actionable under the U.S. Constitution; 2) punishments that exceed the common-law standard without adequate state remedies which violate procedural due process rights; and 3) punishments that are so grossly excessive as to be shocking to the conscience which violate substantive due process rights without regard to the adequacy of state remedies.33 The court held that although the "threshold for recovery on a constitutional tort for excessive corporal punishment is high" the evidence of brutality in Garcia was sufficient.34 In Garcia, a teacher held a nine-year-old student upside down by her ankles while the school principal beat her on the front of her legs with a paddle that was "split right down the middle, so it was two pieces, and when it hit it clapped and grabbed."35 After the paddling, the student's classroom teacher noticed blood coming through the student's cloths.36 The student's injuries left a permanent scar. Responding to complaints from her parents, the principal agreed not to spank the child again without first contacting her parents. However, one month later the principal again paddled the student resulting in severe injuries to the student. The nurse who examined the student stated that if a child received this type of injury at home she "would have called the police department's protective services."37

In Metzger v. Osbeck the Third Circuit Court of Appeals also adopted the Hall test, but joined the Tenth Circuit in rejecting the elements of malice or sadism.38 The Third Circuit instead finds a substantive due process violation where the other elements of the Hall test are met, and the defendant infringed on a liberty interest by the lower standards of "intentional conduct, gross negligence, or reckless indifference, or an established state procedure."39 In Metzger, a teacher punished a student for using abusive language by applying a choke hold and lifting the student off the ground. The student lost consciousness and fell face down on a swimming pool deck suffering lip lacerations, a broken nose, fractured teeth and other injuries requiring hospitalization.40 The court reversed the dismissal of the substantive due process claim and remanded the case.

In Wise v. Pea Ridge School District the Eighth Circuit Court of Appeals adopted a test for whether excessive corporal punishment violated substantive due process rights.41 Although the court did not expressly adopt the Hall test, both tests consider similar elements. The Eighth Circuit's test requires consideration of: 1) the need for the application of corporal punishment; 2) the relationship between the need and the amount of punishment administered; 3) the extent of the injury; and 4) whether the punishment was applied in good faith or maliciously and sadistically for the very purpose of causing harm.42 In Wise a student was struck twice on the buttocks with a paddle for misbehavior in a physical education class.43 Although the student developed bruises, the court held that: "The disciplinary corporal punishment involved in this case does not even approach that which is required to prove a substantive due process violation."44 The court affirmed the district court's granting of summary judgement for the school district.

Courts Rejecting a Federal Cause of Action Based on Substantive

Due Process Rights for Excessive Corporal Punishment

In contrast to decisions in the Third, Fourth, Sixth, Eighth, and Tenth Circuits, the Fifth Circuit Court of Appeals in Cunningham v. Beavers declined to recognize a federal cause of action for excessive corporal punishment based on substantive due process rights.45 In Cunningham v. Beavers, two kindergarten girls who "snickered in the hallway" were beaten with a paddle so severely that they were unable to attend school for six days.46 The court reasoned that as in Ingraham state civil and criminal laws provided adequate remedies.47 The Fifth Circuit did recognize in Woodard v. Los Fresnos Independent School District that corporal punishment "is a deprivation of substantive due process when it is arbitrary, capricious, or wholly unrelated to the legitimate state goal of maintaining an atmosphere conducive to learning."48 But what the Fifth Circuit appeared to give to opponents of corporal punishment with one hand, it took away with the other in Fee v. Herndon holding that "injuries sustained incidentally to corporal punishment, irrespective of the severity of these injuries or the sensitivity of the student, do not implicate the due process clause if the forum state affords adequate post-punishment civil or criminal remedies for the student to vindicate legal transgressions."49 This led the appellants in Fee v. Herndon, to suggest that given the Fifth Circuit's position "teachers could mutilate or torture students in the pursuit of discipline without federal constitutional relief."50 Because of the Fifth Circuit's rejection of federal relief for excessive corporal punishment the legal battle in the Fifth Circuit against corporal punishment has been intense, and continues.51

THE POLITICAL BATTLE AGAINST CORPORAL PUNISHMENT

The Court's decision in Ingraham v. Wright was a significant setback in the battle against corporal punishment. Many judges and educators interpreted Ingraham as granting broad judicial approval to corporal punishment as an educational policy. Nonetheless, following Ingraham opponents of corporal punishment increased their political efforts with significant success. Legislators were increasingly persuaded to prohibit the use of corporal punishment in public schools.52 To gain legislative support, opponents of corporal punishment challenged the effectiveness of corporal punishment as a disciplinary practice, the fairness of its application, and identified educational policy problems associated with continued state approval of the practice.

Opponents of corporal punishment have been highly critical of the effectiveness of corporal punishment as a disciplinary practice. According to Rose: "There appear to be no applied empirically based studies that support the use of corporal punishment."53 Zielke has argued that: "Fifty years of research demonstrates that corporal punishment is not effective in helping children control or change behavior."54 Further, at least one study concluded that incidents of student misbehavior were significantly reduced by prohibiting corporal punishment and introducing alternative disciplinary practices.55

Even if legislators accepted corporal punishment as an effective disciplinary practice, opponents of corporal punishment argued that significant concerns remained regarding the fairness of the administration of corporal punishment. Children that were economically disadvantaged, members of minority races, or males were corporally punished more often than their wealthier, white, or female counterparts.56 There were also significant regional variations in the administration of corporal punishment. According to Fathman, children in the Southern part of the U.S. were 4000 times more likely to be corporally punished than children in the Northeast.57 Certainly, no one would argue that this disproportionate use of corporal punishment was justified because children in Southern states were significantly more likely to misbehave than their Northeastern counterparts, nor that school discipline was significantly better in the South, raising additional doubts about both the fairness and effectiveness of corporal punishment.

Opponents of corporal punishment further argued that legislators must also consider the educational policy problems associated with corporal punishment. Official state support for striking children in the public schools, and the inequitable administration of corporal punishment appeared to conflict with legislative policies on child abuse, and on racial, economic, and gender equity.58 Hyman and Rathbone also recognized an inconsistency between stated educational policy and the practice of corporal punishment. As Hyman and Rathbone noted:

To the extent that education favors independence and personal responsibility, the internalization of social values and self-motivation, belief in the intrinsic joy and usefulness of all learning, and preference for cooperation, a belief in democracy and joint decision-making, and respect for the thoughts and feelings of others within a social group, corporal punishment is counterproductive. It teaches instead the value of aggressive physical action as a means of settling problems and relies on brute force by the powerful over the weak. It undercuts the image of teacher as exemplar of reasoned behavior, nurturing adult and creative problem-solver.59

There was also evidence that a correlation existed between the use of corporal punishment and increased school violence and vandalism.60 Recently, opponents of corporal punishment have argued that the practice of corporal punishment conflicts with the federal goal of violence-free schools stated in "Goals 2000."61

Some opponents of corporal punishment have argued that there are deeper philosophical reasons for rejecting corporal punishment. As Wise stated:

Ultimately the case against the use of corporal punishment as a disciplinary method must be attacked on moral grounds. Simply to show . . . that corporal punishment should not be used because of its relative ineffectiveness or unwanted side-effects really begs the question. For what would one's position be if research actually showed that corporal punishment was a more efficient or effective method for behavioral management? Should we then reverse our position? One is reminded here of a well-known long standing "treatment" for the crime of stealing in a number of Middle Eastern countries. The guilty party simply has his/her hand amputated by the state. To what extent should our opinion on the merits of implementing this particular approach as a deterrent to crime be based on evidence that the incidence rates for stealing are significantly less in those countries that utilize that method of punishment? Clearly, we must draw the line on the issue of human dignity and the worth of the individual human being. Sanctioning the use of corporal punishment in our schools only undermines this basic human tenet.62

As the Eighth Circuit Court of Appeals has recognized, some punishments are "degrading to the punisher and to the punished alike."63 These and other educational policy concerns have lead to the abolition of corporal punishment in half of the states in the U.S.64 Opponents of corporal punishment will undoubtedly continue to introduce anti-corporal punishment legislation in states that continue to allow corporal punishment. Federal legislation banning corporal punishment has also been introduced. Congress recently considered a ban on corporal punishment in all schools receiving federal funding.65 Further, some opponents of corporal punishment have suggested that the practice may already be illegal in the U.S., because of U.S. ratification of the United Nations Charter.66

DISCUSSION

In Ingraham v. Wright the Court held that corporal punishment implicated a constitutionally protected liberty interest, but that common-law remedies were adequate to satisfy procedural due process requirements.67 Although the Court's decision resolved the issue of procedural due process, the Court expressly declined to resolve "whether or under what circumstances corporal punishment of a public school child may give rise to an independent federal cause of action to vindicate substantive rights under the Due Process Clause."68 Lower courts have issued conflicting decisions regarding the availability of a federal cause of action based on substantive due process for excessive corporal punishment.69 Even those courts recognizing these substantive due process rights disagree regarding the appropriate legal test.70 Conflicting lower court decisions are often the basis for granting certiorari.71 Nonetheless, the Court has declined to resolve the conflict between lower courts regarding this issue.72

The Court's refusal to resolve the conflict over substantive due process rights perpetuates the uncertainty over childrens' legal rights in instances of excessive corporal punishment. Unquestionably, instances of excessive corporal punishment continue to occur. In recent testimony before the U.S. Congress, Dr. Irwin A. Hyman stated that: "Every year an estimated one million American school children are beaten, pinched, slapped, punched, whipped, paddled, thrown against walls, stuck with pins, locked in closets, forced to eat noxious substances, and abused in countless other creatively sadistic ways by teachers and school administrators across the country."73 Where abuse has occurred, state remedies have been of questionable adequacy.74 Further, in those jurisdictions not recognizing a federal cause of action for excessive corporal punishment, victims of excessive corporal punishment may be left without an adequate legal remedy. Although a majority of the federal circuits that have addressed this issue have recognized a federal cause of action based on substantive due process, this right is not uniformly protected throughout the U.S. Clearly, if a federally protected right exists, a plaintiff's ability to enforce that right should not depend on in which federal circuit the excessive corporal punishment occurred.

Regarding the future legality of corporal punishment, both the increased social awareness of child abuse and the significant changes in corporal punishment legislation since 1977 cast some doubt on the future influence of the Court's decision in Ingraham v. Wright.75 In Ingraham the Court recognized that: "If the common-law privilege to inflict reasonable corporal punishment in school were inapplicable, it is doubtful whether any procedure short of a trial in a criminal or juvenile court could satisfy the requirements of procedural due process for the imposition of such punishment."76 In 1977 when Ingraham was decided only two states, Massachusetts and New Jersey, prohibited corporal punishment in their public schools.77 Nonetheless, Ingraham v. Wright was a close decision with the Justices split by a 5-4 vote even though nearly uniform state support for corporal punishment existed at the time. Currently, half of the states legally prohibit the use of corporal punishment in their public schools.78 The continued validity of the common-law underpinning of corporal punishment in Ingraham v. Wright is increasingly questionable as legal authorization of corporal punishment becomes a minority position among the states.79 In terms of the total population in U.S. jurisdictions that prohibit corporal punishment, legal support for corporal punishment is already a minority position in the U.S, since corporal punishment is prohibited in many of the most populous states, and in many large cities even in states that currently allow corporal punishment.80

CONCLUSION

Increasingly, the legality of corporal punishment in public schools turns not upon court decisions, but on whether elected officials believe it is an effective, fair, and rational educational policy. Nonetheless, legal remedies for excessive corporal punishment still exist. Despite a significant restriction of federal legal remedies for corporal punishment in Ingraham v. Wright, five federal circuits have recognized a valid cause of action based on substantive due process rights to be free from excessive corporal punishment by public school officials. Discriminatory application of corporal punishment may also be actionable under the equal protection clause.81 In addition, as noted in Ingraham, state tort and criminal laws apply to abusive corporal punishment.