Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, August 20, 2008

Corporal Punishment Today

For many of us who practice Education Law, we just assume that corporal punishment is illegal. However, it is not actually "unlawful" in the sense of being a crime. Many states prohibit this practice and discipline teachers and administrators for utilizing it. However, a number of states do not even go that far.  Several states allow corporal punishment to actually be practiced. In those states, the only restriction on the use of corporal punishment is that it cannot be "excessive."

An August 20, 2008 CNN story entitled "More than 200,000 kids spanked at school" discusses the use of corporal punishment today. It includes a map of the 21 states where corporal punishment is permitted, available here.

The article discusses a U.S. Department of Education report which documented that more than 223,000 students had corporal punishment inflicted upon them last year. As the article states:

Corporal punishment in schools remains legal in 21 U.S. states and is used frequently in 13: Missouri, Kentucky, Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Alabama, Georgia, South Carolina, North Carolina, Tennessee and Florida, according to data received from the Office for Civil Rights at the U.S. Department of Education and cited in the report.

The highest percentage of students receiving corporal punishment was in Mississippi, with 7.5 percent of students. The highest number was in Texas, with 48,197 students.

"When you talk to local school officials, they point to the fact that it's quick and it's effective -- and that's true," Farmer said. "It doesn't take much time to administer corporal punishment, and you don't have to hire someone to run a detention or an after-school program."

But she said, "We need forms of discipline that makes children understand why what they did was wrong."

In addition, corporal punishment can be linked to poverty and lack of resources. For instance, the report said, "Teachers may have overcrowded classrooms and lack resources such as counselors to assist with particularly disruptive students or classroom dynamics."

The New York Times also covered this on August 20, 2008 and that article discusses the fact that more racial minorities are "paddled" than white students. That article is available here.

Corporal punishment is just wrong. Our schools should not be in the business of hitting children no matter what they do. The line between what is excessive and what is not is thin and corporal punishment can leave children with permanent scars. Its use can also be abused by schools. It is time for a federal law to be enacted which puts a stop to this dated practice for once and for all.

Mitchell H. Rubinstein

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Along with those minority students are disabled students who are being abused. Hard to believe in 2008.

Posted by: mekei | Aug 21, 2008 4:20:43 AM

Criminally chargeable paddlings?

I just read a March 24, Macon County Chronicle story on a 5 year old paddled a second time after being overhead saying the first time did not hurt. This reminds me of a story in the NY Times many years ago where a kid groaned sitting down after a paddling, for which groaning he was taken to the principal's office to paddled again (hard to believe; I will leave out how many times he was hit both times or you would never believe it)!

In both cases it should be clear that the second paddling is not legal because there was no culpable offense (a kid is entitled to tell another kid anything he wants unless there is a specific rule against such) -- sort of like the recent story at the Memphis Academy of health sciences where it is alleged that girls are strapped 10 times on the hands and if they cannot bear to hold their hands out for the whole 10 the count starts all over from 1. Anytime a beating is not legally permitted the teacher is committing a crime of assault chargeable under the usual application of criminal law to such a beating -- and if the crime hits the papers it's about time it was charged.

I have been emailing around the essay below lately -- sort of accidentally stumbled on the issue a few months ago and this is my effort for now:

Under my notion of constitutional equal protection, before legislatures may feel free to exempt school discipline from criminal assault prohibitions -- to allow corporal punishment -- they ought, first, to be able to identify a compelling state interest in deterring certain misbehaviors and, second, attest to an absence of workable alternatives -- the institutional equivalent of rules of engagement.

Practical example: if Oliver led a charge of kids on the lunch counter day after day and not other punishment could not restrain him -- the institutional equivalent of self-defense.

How much offense can be caused to the great commonweal – as opposed to the likes and dislikes of deans of discipline -- if, for another practical example, occasionally disorganized students arrive a few minutes late for class every couple of weeks (20 times a year! -- as I did in high school; not in my shorter stay in college)? Many colleges do even not require students to show up for classes, so long as they master course materiel. Employers of the New York City of my youth would have been happy if employees only showed up a couple of minutes late for work only every couple of weeks with the state of rush hour commuting there.

The explanation most offered for exempting schools from normal assault prohibitions – in carrying out what amounts to everyday office management – is that school teachers act “in loco parentis”, in place of parents. And everyone knows that parents may – as long as state law does not proscribe it – legally paddle children for even minor infractions.

However, so called “parental sovereignty” itself is less a deep natural verity and more a handy legal device for insulating sacrosanct family life from potentially crackpot state interference (parents may not legally strike children for no reason)...
…which compelling family interest has absolutely zero application to school administration and no way should exempt schools from conventional criminal prohibitions. Acting “in loco parentis” may constitutionally require student obedience – but does not confer any “sacred (parental) exemption” from criminal law.

Whatever about instinctive human nature teaches us – sensibly -- to treat minor children as subordinates – less sensibly – may magnify their transgressions in our (bureaucratic?) sight, especially repeated transgressions and -- even less sensibly -- put us on the (bureaucratic?) path to discipline for the sake of discipline itself: the war on the student!

Legislatures should not feel free to suspend constitutional equal protection -- against assault with a weapon developed to deliver maximum pain with minimum injury to slaves (same physics still delivers; same biology receives) -- in deference to our too often, perhaps too thoughtlessly applied genetic code of child deference.

Posted by: Denis Drew | May 16, 2009 7:36:16 AM

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