Monday, October 28, 2013

Teacher Duct-Tapes Student's Mouth Shut: Does Student Have a Case?

News broke last week of a 6th grade teacher at Ocean Springs Upper Elementary in Mississippi duct-taping a male student's mouth shut for talking too much.  According to the student, he was taped and forced to sit in a corner for 10 minutes.  Aside from the horrific nature of the act itself, the troubling question is whether it violates the constitution.  In Ingraham v. Wright, 430 U.S. 651 (1977), the Supreme Court held that neither the Fourteenth nor the Eighth amendment prohibited corporal punishment of public school students.  The Fifth Circuit, in which Mississippi rests, has taken Ingraham's holding and ran with it, sanctioning egregious instances of corporal punishment.  See generally Deana Pollard Sacks, State Actors Beating Children: A Call for Judicial Relief, 42 U.C. Davis L. Rev. 1165, 1194-1209, 1222-23 (2009). 

Of course, corporal punishment is not duct-taping, but both are subject to the same "shocks the conscience" standard (although I and others would argue that this this standard should not be extended from police cases to school cases).  This standard, as current applied, places relatively few limits on outlandish school disciplinary actions.  Some courts have been willing to reject student claims arising out of cases such as a teacher slapping a student or locking a student in a closet.  Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir.2002); Bisignano v. Harrison Cent. Sch. Dist., 113 F.Supp.2d 591, 599–600 (S.D.N.Y.2000).  Courts have certainly gone the other way under similar facts, JG & PG ex rel. JGIII v. Card, 2009 WL 2986640 (S.D.N.Y.,2009), but a "win" for the student is never a foregone conclusion.

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A highlly relevant case (if only because it also involved tape) is Doe ex rel. Doe v. Hawaii Dep't of Educ.,334 F.3d 906 (9th Cir. 2003), which rejected an assistant principal's qualified immunity defense in a Fourth Amendment action over his taping a second-grade student to a tree as a punishment. A noteworthy aspect of the case is that a fifth-grade girl who saw what was going on told the assistant principal to let the student go (which he did). I'm waiting for that fifth grader to become one of the next generation's great civil rights lawyers.
C.A.9 (Hawai‘i),2003.

Posted by: Mark Weber | Oct 29, 2013 7:58:24 AM

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