January 2003

Stephen T. Blower
Attorney at Law
3610 Buttonwood Drive
Columbia, MO 65201
Tel.:(573) 886-8930
Fax: (573) 886-8901
email: blowerlaw@yahoo.com

*University of Missouri-Columbia M.A. in Religious Studies, 2000.
*University of Missouri-Columbia School of Law J.D. 2003.

The law must, like all human institutions, be imbued by a spirit of humility, if it is to deal with the mournful failure of man to be less than perfect. When, however, the law in its application is found to be wanting in that spirit which is the very quintessence of its embodiment, then a standard of perfection becomes the order of the day and, upon its failure to be absolutely demonstrated, injustice is sadly occasioned. [1]

ABSTRACT: Two sets of laws coexist in Missouri reflecting divergent policy toward corporal punishment. One set permits school districts to determine whether to permit corporal punishment, including spanking, to discipline and punish students. Another set of laws, promulgated by the Department of Social Services specifically prohibits the use of corporal punishment on any child in the legal custody of the State. Clearly, this conflict of corporal punishment policy and its ramifications cause confusion and work a disservice, both to DFS and to school officials. Presently an increasing consensus on both the national and statewide level is abandoning corporal punishment as a viable means of discipline. Thus, it is crucial to forge a uniform state policy that will best further the interests of children and enable both school officials and DFS workers to act coherently when it becomes necessary to discipline children.

POLICY BRIEF: The statistical probability of a child in DFS custody becoming subject to corporal punishment in public school is difficult to assess, but it is neither impossible nor inconceivable. The gravity of the conflict does not depend on the magnitude of the problem: as a measure of public policy, consistency and fairness are paramount. Behind the state regulations prohibiting corporal punishment is the policy that finds corporal punishment unacceptable as a disciplinary measure.

Whatever the choice of individuals as to how they discipline their own children, many health care, social work, and educational professionals now recognize that school-initiated corporal punishment is undesirable for a variety of reasons, and should be limited, if not completely prohibited. [2] DFS policy has evolved to prohibit corporal punishment partially in response to the increase in the number of physical abuse cases reported for the last decade. [3] For DFS, abstinence from corporal punishment is felt to be preferable to moderation. In this way any possible escalation to abuse is deterred, and the defense of a reasonable amount of corporal punishment cannot be raised, since none is tolerated.  To be fair and consistent, the same policy should be implemented statewide in Missouri’s public schools.

There can be no sound, coherent policy when the laws and regulations governing the treatment of children, ideally founded on the same premise, are squarely at odds with each other. Such contradiction in policy produces confusion and uncertainty, and it is essential to articulate a clear and unmistakably unified policy in Missouri regarding the care of children.

Views Toward Corporal Punishment in Missouri Law

Corporal punishment, by definition, may include spanking or paddling of a child[4] with or without an instrument of some kind, but it may also include any physical imposition, deprivation, or otherwise intentionally created physical distress.[5] Missouri statutory law addresses the first aspect of this definition as it may occur in the public schools, and Missouri administrative law, through the Code of State Regulations, addresses both the former and latter aspects of this definition for a child in the legal or physical custody of the State.[6]

On the one hand, the legislature specifically allows spanking and corporal punishment to be practiced in the public schools;[7] moreover, Missouri courts, following the lead of the federal courts of appeals and the U.S. Supreme Court, have upheld the constitutionality of corporal punishment in the public schools.[8] On the other hand, the rules of the Department of Social Services specify that foster parents,[9] licensed child-care facilities,[10] unlicensed child-care facilities[11] (except religiously controlled facilities),[12] residential group homes,[13] child placing agencies,[14] Division of Youth Services Programs,[15] and any other state-sponsored child care and custody facilities, may not employ corporal punishment or spanking as part of their discipline programs.[16]]

Missouri statutory law allows for corporal punishment in the form of spanking of children[17] in public schools, so long as the exercise of such authority follows procedural guidelines.[18] It is noteworthy that the occurrence of the term “spanking” arises in the context of a specific exclusion from what shall be considered child abuse. State statute provides that each school board in each district shall develop a written policy determining whether corporal punishment will be used as a disciplinary measure,[19] and if it is, the procedures regarding how such punishment is to be administered.[20] This written policy must be made available to every student and parent or guardian of every student enrolled in the district’s schools, and it must be furnished at the beginning of each school year.[21]

Missouri’s “corporal punishment” statute requires school boards to provide a blanket notice of the policy (at the inception of the school year) to their students and the students’ caregivers,[22] but it does not further require that a caregiver be notified on an incident-by-incident basis when the school intends to spank or paddle her child. Correspondingly, the Supreme Court has held that parents, and by extension legal custodians in general, do not have a constitutional right to notice before a school administers corporal punishment on their child.[23] Thus, unless a school district gives parents the option to elect an alternate punishment to corporal punishment, a parent has no guarantee that his or her child will not be subject to corporal punishment. Under Missouri law, the school district is not obliged to provide such an option. A school district may even choose to administer corporal punishment on a child over the objections of the parents without offending Constitutional principles or present Missouri statutory standards.[24]

Significantly, both the statutory provision and the case law in Missouri hold that administering of corporal punishment and/or spanking must be reasonable. Unfortunately, what the statute might mean by the word reasonable and what courts have held it to mean are not necessarily compatible.[25] Reasonable people seem to disagree on what “reasonable” might mean in the context of striking a child for the purpose of punishing him or her. Ostensibly, the reasonableness test is an objective standard, namely, typically accepted community standards of what is reasonable. However, Missourians are sharply divided on the issue of whether corporal punishment should be permitted in schools at all, as evidenced by the opposing policies[26] implemented in various school districts across the state.[27] Thus, parents who disagree about the appropriateness of the use of corporal punishment in the schools would certainly also disagree about what constituted a reasonable application of corporal punishment.

The statute is ultimately silent on what, precisely, spanking “administered...in a reasonable manner”[28] means. Presumably, only if spanking is not administered in a “reasonable manner” can it be found to rise to the level of child abuse. For a DFS file to be opened on the incident, both a Juvenile Officer and school superintendent or board president must agree based on their separate investigations that the evidence is sufficient for a finding of child abuse.[29] The specific investigative procedures[30] concerning any allegations of abuse as arising from administering of spankings are also covered in detail by statutory provisions.[31] Any hotline report made to the Division of Family Services alleging abuse arising from a spanking administered by school personnel following the written plan of the district is immediately referred to the superintendent of the school district, or, when the superintendent is the alleged perpetrator, to the president of the school board. The statute criminalizes internal investigatory fraud or omissions, making it a class A misdemeanor to intentionally misreport or underreport findings.[32] However, since DFS is statutorily precluded from investigating where there is no report to begin with, enforcement of the sanction for failure to report would in all likelihood require an improbable series of events involving law enforcement and at least one whistle-blower party to the incident.

Consequently, Missouri law regarding the allowance of corporal punishment and spanking in public schools appears inconsistent and incompatible with Missouri law regarding other state-sponsored childcare programs and the mandated reporting of suspected child abuse.[33]. It may well be argued that there is no direct conflict in the particularities of the administering of corporal punishment as written in the language of the statute and the language of the Regulations which prohibit corporal punishment insofar as school officials are neither agents of DFS nor foster parents. If the divergent policies were, hypothetically,[34] brought squarely into conflict, “it is well settled that a regulation may not conflict with a statute and if it does the regulation must fall.”[35] Nonetheless, the two sets of policies clearly reflect disagreeing presumptions about the appropriateness of corporal punishment. Additionally, whatever constitutional basis a public school official’s actions rely upon must be reexamined when the child is in state custody: in such context, the school official draws authority to act in a way the state does not generally permit itself to act, and the state may be under a greater duty to protect if the child has been brought under legal custody involuntarily.[36]


Traditionally, the basis for the school’s authority to apply corporal punishment was in loco parentis, i.e., presuming the measure of control that every parent was understood to already possess.[37] Contemporary judicial views, however, comport with the notion that school officials are state agents, with a concomitant duty to ensure the safety and well-being of the children placed under the school’s temporary physical custody.[38] The school’s authority then, is not derived from parental delegation so much from “publicly mandated educational and disciplinary policies.”[39]

The limits of such school authority, as derived from both the public mandate and state laws, must be tempered by those inalienable constitutional rights which inhere to persons of any age. Although the Supreme Court has held that students do not “shed their constitutional rights...at the schoolhouse gate,”[40] the Court has consistently indicated that special considerations need to be made when analyzing the extent of those constitutional rights, given the tutelary and custodial nature of the relationship between school and student.[41] The use of corporal punishment in public schools raises certain constitutional issues affecting individually protected rights.

The landmark U.S. Supreme Court decision Ingraham v. Wright[42] foreclosed any constitutional claims against corporal punishment in schools as either a procedural due process[43] violation or a violation of the Eighth Amendment concerning cruel and unusual punishment.[44] However, the issue of substantive due process,[45] including protectable interests made applicable to the states through the Fourteenth Amendment, was not ruled upon and may yet be raised.[46] In the context of Ingraham and others, procedural due process alludes to the requirement of notice which must given by the state before imposing sanctions upon an individual, bodily or otherwise. The Court dismisses the procedural due process claim not because of impracticality, but because common law remedies exist to preserve procedural due process. Further, Ingraham also notes that genuine excessiveness[47] of corporal punishment always has a remedy in tort, if not also criminal liability.

As this decision is still good law, Missouri courts also justify a fairly stringent standard for finding what may be ultimately unreasonable in the context of corporal punishment. The underlying facts in Ingraham were probably never meant to form a substantive benchmark for how far corporal punishment could go and still not rise to the level of a constitutional violation. Unfortunately, the lower federal courts see in Ingraham an opportunity to compare the facts of their own cases to that of Ingraham's and make a determination of whether the severity was at least as great as that of James Ingraham and Roosevelt Andrews'.[48] Such a litmus test likewise has been adopted by the 8th Circuit Court of Appeals, whose ruling has apparently been persuasive to the Western District of Missouri Court.[49]

The leading case affecting Missouri law in this regard is Wise v. Pea Ridge School District.[50] In that case the student Daniel Wise’s § 1983 claim raised the issue of denial of substantive due process. Wise did not prevail on either the substantive due process or the § 1983 issue. The court agreed that at “some point the administration of corporal punishment may violate a student's liberty interest in his personal security and substantive due process rights,” but the court held that such conduct would have to be “shocking to the conscience.” This latter standard is borrowed from the 4th Circuit's analysis of a corporal punishment case, which in turn drew from elements necessary for a finding of police brutality resulting in a constitutional violation as originally articulated by the U.S. Supreme Court.[51] The 8th Circuit likewise applies a four-part test for a substantive due process claim. The four parts of the test consider “1) the need for the application of corporal punishment; 2) the relationship between the need and the amount administered; 3) the extent of injury inflicted; and 4) whether the punishment was administered in a good faith effort to maintain discipline or maliciously and sadistically for the purpose of causing harm.”[52]

Furthermore, the issue of intent, although determined in the Defendant’s favor in Wise, was raised earlier in the same opinion and limited in its application: “[N]evertheless...as long as the punishment was not excessive[53] as a matter of law and was a reasonable response to the student's misconduct the intent of the one who administers the punishment is irrelevant.”[54] Unfortunately, therefore, the issue of intent will only be visited if the punishment is first found to be excessive “as a matter of law,” which means not just unreasonable, but shocking to the conscience.

Ingraham describes contemporary society’s approval of corporal punishment as “prevalent” and “discern[‘s] no trend toward its elimination.”[55] While this statement may have been true 25 years ago, the same can hardly hold true today. Without a doubt, American society has been in transition regarding this issue, largely over the last 15 years. Whereas at the time of Ingraham in 1977 only two states (Massachusetts and New Jersey) had prohibited corporal punishment, currently 27* states forbid it.[56] The trend in at least 9 or 10 of the remaining states is to allow local school districts to set policy, and Missouri falls into this category. Dade County, Florida, the situs of the Ingraham case[57] and the nation’s fourth largest school district,[58] also now prohibits corporal punishment as part of its school board policy.[59] But does public opinion, or growing consensus on a national level, factor into the judiciary’s determination of whether corporal punishment in public schools is acceptable? Such a standard would not be unlike the “evolving standards of decency” arguments raised regarding application of the Eighth Amendment, but the judiciary has never openly suggested that, as a matter of law, its rulings regarding corporal punishment in public schools were controlled by public sentiment. Rather, the court explicitly rejected any connection between the punishment of the Eighth Amendment and corporal punishment in the public schools. Nevertheless, the overall attitude of many Americans toward the use of corporal punishment in the public schools has undergone a radical shift since the handing down of Ingraham. Further, there is an increased willingness to publicly voice strong opinion concerning the administering of such punishment.

The Statistics of Corporal Punishment in Missouri and Prognosis for Change

Statistics from the U.S. Department of Education Office for Civil Rights show that an estimated 10,000 Missouri students were hit[60] during the 1997-98 school year.[61] Appendix 1 contains a comprehensive list of the 524 school districts in Missouri and the articulated policy[62] of 420 of those 524 districts regarding corporal punishment. Of the 420 districts that responded to the survey, 281 have school board policies that permit corporal punishment. The 420 districts reflected in the survey represent at least 90% of the total number of students enrolled in Missouri public school grades kindergarten through twelfth grade. Approximately 67% of the districts surveyed permit corporal punishment, but these districts represent only 34% of the total number of students in Missouri. During Fiscal Year 2000, 18,020 children were in DFS custody in Missouri, which includes both foster care children and any other out-of-home placement.[63] Evidently, at least some of these children attended public schools where corporal punishment is an accepted form of discipline.

By contrast, the 139 districts that prohibit corporal punishment reflected in the survey results represent at least 56% of the total number of students in Missouri public schools. Even if each of the 104 remaining districts unaccounted for in the survey were to permit corporal punishment, which is unlikely, the percentage of students in Missouri insulated from corporal punishment would remain a majority. Thus, the state law permitting corporal punishment in public schools cannot reflect a statewide public policy mandate, using a majoritarian argument. School boards are political bodies that form an integral part of representational government. If the student population is proportional to the adult population in the school districts where corporal punishment is prohibited, then it is fair to conclude that the majority of Missouri citizens of voting age, through the representation of their local district school boards, have elected to prohibit corporal punishment in the public schools.

It is not feasible for Missouri school districts that permit corporal punishment by policy to carve out an additional school bound exception for children under state legal custody in order to assure the protection of those children from corporal punishment. Such a new exception would ignore the underlying problem and miss the point of the state regulations. All children in Missouri, whether in DFS custody or not, are surely deserving of equal levels of restraint in terms of disciplinary measures exercised by state agents.

The history of the adoption of the state provisions prohibiting corporal punishment demonstrates the mirroring of a growing national trend[64] away from allowing corporal punishment as an acceptable form of discipline of children, either in or out of the public schools.[65] Corporal punishment, once a “line of first defense,” is in many places relegated to a “measure of last resort,”[66] and now, in more than half the states, the District of Columbia, and a considerable number of school districts in Missouri, not permitted at all. An increasing number of professionals and school boards believe the possibility of negative consequences from administering corporal punishment outweighs any probative value its use as a disciplinary tool might yield.

The safety and well-being of all of Missouri’s schoolchildren are a natural and proper concern for the Missouri State Legislature. By promoting a unified public policy for all Missouri public schoolchildren, the Legislature can best demonstrate its commitment to achieving statewide educational parity and accountability as well as enabling the Division of Family Services achieve its goal of protecting the vital interests of the state’s children.

*Editor's note: In April 2003, and subsequent to the above writing, Delaware became the 28th state to ban corporal punishment in schools. See BREAKING NEWS: DELAWARE BECOMES 28TH STATE TO BAN SCHOOL PADDLING. Press release from the National Coalition to Abolish Corporal Punishment in Schools and the Center for Effective Discipline April 1, 2003

See survey, Survey results of Missouri public school districts

[1] Traynum v. Lane Drug Co., C.A. NO. L-84-420, 1985 Ohio App. LEXIS 6347, at *8. (April 12, 1985) (Wilkowski, J., dissenting).

[2] E.g. Murray A. Straus, Spanking and the Making of a Violent Society, 98 Pediatrics 837 (1996).

[3] Other suggested reasons include 1) corporal punishment is ineffective upon children who have become inured to physical abuse and 2) using corporal punishment models negative behavior.

[4] No class of citizens other than children may be comparably physically punished under the law. The Eighth Amendment has been interpreted to shield the incarcerated from physical punishment. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968). The Code of Military Justice protects members of the military. “Punishment by flogging, or by branding, or marking or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person....” Mo. Rev. Stat. § 40.175 (2001). Tort law , similarly, defines battery as “an offensive touching.”

[5] For various definitions, see Irwin A. Hyman, Reading, Writing, And The Hickory Stick 10-11 (1990), Murray A. Straus, Beating The Devil Out Of Them 4-5 (2001). Black’s Law Dictionary (5th ed. 1983) defines “corporal punishment” as “physical punishment as distinguished from pecuniary punishment or a fine; any kind of punishment of or inflicted on the body.”

[6] The term ‘corporal punishment’ often appears in the Code of State Regulations as part of a list of other prohibited forms of discipline, generally classified as ‘harmful.’ If the term ‘corporal punishment’ is regarded as general rather than specific in this context, then following the statutory construction canon of ejusdem generis leads to the conclusion that corporal punishment is categorically harmful, by Regulatory definition. For an advocacy of pain as a proper form of discipline and punishment, and not perniciously harmful, see Graeme Newman, Just and Painful, 1983.

[7] Mo. Rev. Stat. § 160.261(8), which states, in part, “Spanking, when administered by certificated personnel of a school district in a reasonable manner in accordance with the local board of education's written policy of discipline, is not abuse within the meaning of chapter 210, RSMo. The provisions of sections 210.110 to 210.165, RSMo, notwithstanding, the division of family services shall not have jurisdiction over or investigate any report of alleged child abuse arising out of or related to any spanking administered in a reasonable manner by any certificated school personnel pursuant to a written policy of discipline established by the board of education of the school district.”

[8] E.g. Meyer v. Litwiller, 749 F. Supp 981 (W.D. Mo. 1990); Turley v. Sch. Dist., 713 F. Supp. 331 (W.D. Mo. 1989).

[9] Mo. Code Regs. Ann. tit. 13 § 40-60.030(5)(E).

[10] Mo. Code Regs. Ann. tit. 19 §§ 30-60.070(1)(B)(3) (1999), 30-61.175 (1999), 30-62.182(1)(C)(7) (1999).

[11] Id. This seems to be the suggestion of the language of Mo. Code Regs. Ann. tit. 19 § 30-62.042(2)(B) (2000).

[12] See generally RSMo § 210.258, which states, “The provisions of this section and section 210.259 apply to a child care facility maintained or operated under the exclusive control of a religious organization. Nothing in sections 210.252 to 210.257 shall be construed to authorize the department of health and senior services or any other governmental entity: ...(5) To prohibit the use of corporal punishment. However, the department of health and senior services may require the child care facility to provide the parent or guardian enrolling a child in the facility a written explanation of the disciplinary philosophy and policies of the child care facility.”

[13] Mo. Code Regs. Ann. tit. 13 §§ 40-71.070(D)(5)(M) (2001), 40-72.010(2)(B)(5)(D) (2001), (3)(F)(4)(D) (2001).

[14] Mo. Code Regs. Ann. tit. 13 § 40-73.050(1)(D)(6)(M) (1997).

[15] Mo. Code Regs. Ann. tit. 13 § 110-2.120(5) (2000).

[16] For example, the core rules for Psychiatric and Substance Abuse Programs, as described in Mo. Code Regs. Ann. tit. 9 § 10-7.020(3)(A)(7) (2002) and Mo. Code Regs. Ann. tit. 9 § 10-7.060(1)(B)(4) (2002) specifically prohibit any “aversive conditioning” as part of disciplinary regimen. Corporal punishment is listed as an example of such. “Aversive conditioning” is defined as “the application of startling, unpleasant or painful stimulus or stimuli that have a potentially noxious effect on an individual in an effort to decrease maladaptive behavior.”

[17] It is worth noting, at this point, that nothing in either the federal or state law prevents any child, including the disabled, once enrolled in a public school district, from being corporally punished.

[18] Mo. Rev. Stat. §§ 160.261(8), 210.110(1), 210.258(5) (2001).

[19] Absent from this discussion are the associated pedagogical arguments both in favor of and opposed to corporal punishment, as this is beyond the scope of the present paper.

[20] Mo. Rev. Stat. § 160.261(1) (2001).

[21] Id.

[22] Id.

[23] Baker v. Owen, 423 U.S. 907 (1975), aff'g 395 F. Supp. 294 (MDNC).

[24] As a practical matter, this is not the status quo. Most school districts seek parental permission before administering corporal punishment. Although legal liability is often a cited reason for this measure, more political and public relational concerns are almost certainly the real impetus.

[25] In reality this is nothing more than the common-law standard as applied to corporal punishment historically in the English and American legal systems.

[26] One unusual finding of the statewide survey (Appendix 1) is that occasionally, there are examples of ‘administrative nullification,’ whereby a corporal punishment policy has been adopted by the school board, but the administrative team has unilaterally decided not to follow it.

[27] Regardless of the case holdings, many school districts, including some of the most populous (see Appendix 1) have prohibited use of corporal punishment in their schools. Consider the following two samples of school board policy statements:

P5144.1 Corporal punishment of any kind is not permitted in the St. Louis Public Schools. Any employee who uses physical force or the threat of physical force as a means of student discipline or punishment shall be subject to disciplinary action, including discharge. St. Louis Public Schools http://www.slps.org/BoardofEducation/policies/5144.1.htm (updated December 7, 1999).

Corporal punishment is not a discipline alternative in The School District of Springfield R-XII. However, a staff member may use physical force, including restraint, on a student when it is essential for the protection of the student, self or others, or the safe-guarding of property under the control of the public schools. Springfield Public Schools http://sps.k12.mo.us/board/PCSECTJ.pdf (accessed Sep. 23, 2002).

By contrast, many of the smaller school districts have retained corporal punishment as a disciplinary alternative (see Appendix 1). The corporal punishment policy of Jefferson City public schools typifies many of those policies where corporal punishment is permitted:

Corporal punishment, as a measure of correction or of maintaining discipline and order in schools, is permitted. However, it shall be used only when all other alternative means of discipline have failed, and then only in reasonable form and upon the recommendation of the principal. If found necessary, it should be administered preferably by the principal in the presence of the teacher.

It should never be inflicted in the presence of other pupils, nor without a witness.

Corporal punishment shall be administered only by swatting the buttocks with a paddle. When it becomes necessary to use corporal punishment, it shall be administered so that there can be no chance of bodily injury or harm. Striking a student on the head or face is not permitted.

The teacher or principal shall submit a report to the superintendent, explaining the reason for the use of corporal punishment as well as the details of the administration of the same.

A staff member may, however, use reasonable physical force against a student without advanced notice to the principal, if it is essential for self-defense, the preservation of order, or for the protection of other persons or the property of the school district. Jefferson City Public Schools http://www.jcps.k12.mo.us/board%20policies/JGA-C.pdf (accessed Sep. 23, 2002).

[28] Mo. Rev. Stat. § 160.261(8) (2001).

[29] Id.

[30] The complex formalities which a hotlined spanking incident could initiate have prompted many school districts that still retain corporal punishment to ceremonialize the administering of the punishment. Such heightened proceduralism ironically invalidates the Supreme Court’s rationale for the need for swift and immediate discipline in the form of corporal punishment, and runs directly counter to the Court’s rationale. Ingraham v. Wright, 430 U. 651, 681, n. 51 (1977).

[31] This portion of the statute seeks to limit the Division of Family Services’ involvement with any investigation of alleged abuse stemming from the use of corporal punishment. In a sense, this is at once a statutory acknowledgement of the underlying policy conflict and an effort to curtail DFS’s intrusion into the exercise of the school’s sphere of authority. The facts of the following case serve as an example of exactly the type of situation the Missouri statute’s provisions would preclude. The mother of a paddled fifth-grade child reported the paddling as a possible incident of child abuse, launching a DFS investigation which substantiated the claim and placed the name of the administrator who gave the paddling on the state registry of child abusers. Four years, three levels of review and many hearings later, the Arkansas Court of Appeals decided that the administrator was only following state law and that the incident did not rise to the level of abuse, largely based on the testimony of a caseworker. Arkansas Dep’t of Human Servs. v. Caldwell, 832 S.W.2d 510 (Ark. Ct. App. 1992).

[32] Mo. Rev. Stat. § 160.261(10) (2001).

[33] The Jackson County DFS office has included in its Modified Consent Decree, dated 12/14/94, the following provision:

F. Prohibition on the Use of Inappropriate Discipline of Children and Investigation of and Responses to Suspected Incidents of Abuse, Neglect and Inappropriate Discipline.

I. DFS shall prohibit corporal punishment, inappropriate discipline, abuse, and neglect of class members.

2. Any time a social worker becomes aware that a class member may have been the subject of abuse, neglect or an inappropriate method of discipline, the social worker shall:

a. Notify the Child Abuse/Neglect Central Hotline immediately.

b. Notify his/her supervisor promptly.

c. Notify the placement unit promptly.

d. Determine with his/her supervisor whether any child in the alternative care placement is in imminent danger due to abuse, neglect, inappropriate discipline, or dangerous environmental conditions, and should be removed immediately. G.L. v. Stangler, 873 F. Supp. 252, 258 (Mo. App. W.D. 1994) (emphasis added)

Though it is difficult to say with precision whether corporal punishment is meant to qualify as an example of an “inappropriate method of discipline” in the above language, it is likely given the overall prohibition on corporal punishment in the rest of the Modified Consent Decree.

[34] As indicated supra, note 29, Mo. Rev. Stat. §§ 160.261(8) excludes DFS jurisdiction or involvement if a reported allegation of child abuse arises out of or is incident to the “reasonable” administering of corporal punishment. This might well be an anticipatory avoidance of any real conflict that might obtain in the hypothetical case.

[35] Johnson v. Labor & Industrial Relations Com., 591 S.W.2d 241 (Mo. App. W.D. 1979).

[36] In fact, the Supreme Court has alluded to the affirmative duty which exists on behalf of the state when a child is placed involuntarily into foster care. One must question why this affirmative duty, even to the “bodily integrity” discussed infra, should not naturally extend to the foster child in the public school environment. “Had the State by the affirmative exercise of its power removed [the child] from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect. Indeed, several Courts of Appeals have held, by analogy to Estelle and Youngberg, that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents. See Doe v. New York City Dept. of Social Services, 649 F. 2d 134, 141-142 (CA2 1981), after remand, 709 F. 2d 782, cert. denied sub nom. Catholic Home Bureau v. Doe, 464 U.S. 864 (1983); Taylor ex rel. Walker v. Ledbetter, 818 F. 2d 791, 794-797 (CA11 1987) (en banc), cert. pending Ledbetter v. Taylor, No. 87-521. We express no view on the validity of this analogy, however, as it is not before us in the present case.” DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 263 (1989).

[37] See Philip K. Piele, Neither Corporal Punishment Cruel Nor Process Due, 7 J.L. & Educ. 1, also reprinted in Corporal Punishment in American Education 91-106 (Irwin A. Hyman and James A. Wise, eds., 1979), p. 95.

[38] New Jersey v. T.L.O., 469 U.S. 325, 336 (1985).

[39] Id.

[40] Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969).

[41] Most recently the Court described this rationale in detail in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S.Ct. 2559 (2002). Also see Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995).

[42] 430 U.S. 651 (1977).

[43] Also see Scott Bloom, Spare The Rod, Spoil The Child? A Legal Framework For Recent Corporal Punishment Proposals, 25 Golden Gate U.L. Rev. 361, where, in note 103, Bloom refers to the dissent’s argument on this point: “Justice White [in his dissent in Ingraham] also noted that the openness of the school is irrelevant, because openness alone does not confer constitutionality on a punishment which is already suspect. Further, the availability of a tort remedy does not necessarily rehabilitate a statute that is constitutionally infirm. This remedy also fails to protect the child from abuse ahead of time, instead attempting to remedy the situation after the fact.”

[44] The court held that the Eighth Amendment only properly applies to punishment of criminals.

[45] “Substantive due process refers to the principle that a law adversely affecting an individual’s life, liberty, or property is invalid, even though offending no specific constitutional prohibition, unless the law serves a legitimate governmental objective.” Michael Perry, Abortion, the Public Morals and the Police Power: the Ethical Function of Substantive Due Process, 23 UCLA L. Rev. 689, 733 (1976).

[46] Some analyses of the Ingraham decision include Piele, supra; Leonard P. Edwards, Corporal Punishment and the Legal System, 36 Santa Clara L. Rev. 983 (1996); and Philip Greven, Spare the Child: The Religious Roots of Punishment and the Psychological Impact of Physical Abuse 98 (1991). Greven also explores religious underpinnings of rationale for corporal punishment, judicial and otherwise.

[47] Ingraham at 681

[48] See Virginia Lee, A Legal Analysis of Ingraham v. Wright 173-195 in Hyman and Wise, eds., (1979) supra note 37.

[49] Supra, note 8.

[50] 855 F.2d 560 (8th Cir. 1988).

[51] Wise, 855 F.2d at 565 (emphasis added); Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980). The “shocks the conscience” language is originally found in Rochin v. California, 342 U.S. 165, 172 (1951). For an overview of this issue, see Jerry R. Parkinson, Federal Court Treatment of Corporal Punishment in Public Schools: Jurisprudence that is Literally Shocking to the Conscience, 39 S.D. L. Rev. 276.

[52] Wise at 564.

[53] The threshold of when corporal punishment becomes “excessive” is a matter of intense debate. See H. D. Warren, Criminal Liability for Excessive or Improper Punishment Inflicted on Child by Parent, Teacher, or One In Loco Parentis, 89 A.L.R. 2d 396. As the Ingraham court held, the foreclosure of certain Constitutional claims does not ordinarily deny the student or parent the availability of seeking a remedy in tort or relieve the corporal punisher of potential criminal liability. However, cf. Spearman v. University City Pub. Sch. Dist., 617 S.W. 2d 68, 71 (Mo. 1981) for a caveat of sovereign immunity and indemnification of the school board itself.

[54] Wise at 563.

[55] 430 U.S. 651 at 661(1977). [56] The 23 states which permit corporal punishment in public schools are Alabama, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, and Wyoming.

[57] Charles R. Drew Junior High School, now Drew Middle School.

[58] http://www.dadeschools.net/

[59] http://www.dadeschools.net/board/rules/Chapt5/5d-1.07.pdf where it states,

The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement.

In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending upon the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion.

[60] The semantics of corporal punishment often suggest the position of the speaker toward corporal punishment. Supporters of corporal punishment tend to disfavor the terms ‘strike,’ ‘hit,’ or ‘beat.’ In the sentence above, however, the term is intended to be neutral.

[61] Tiffany Ellis, House says “NO” to Bullies—“YES” to Corporal Punishment, April 17, 2002 Missouri Digital News at http://www.mdn.org/2002/STORIES/BULLY.HTM accessed 11/20/02. Apparently the statistics cited were based on a projection by the U.S. Department of Education relying upon available recorded incidents spread across the number of school districts in Missouri which still permit corporal punishment and the number of students enrolled in schools where corporal punishment is permitted. Also see Geraldine Sealey, ABC News, Spare the Rod? Corporal Punishment in Schools Sparks Debate Over How to Discipline Students http://abcnews.go.com/ sections/us/DailyNews/paddling010719.html July 23, 2002 (citing U.S. Department of Education statistics that 1.1 % of Missouri public school children experience corporal punishment, whether by paddling or otherwise).

[62] School board policies represent an unusual market niche for insurance carriers and consulting agencies. Currently in Missouri there are two competing companies which furnish prepackaged school board ‘kits’ to the vast majority of school districts in the state. These policies come with instructions to the school board, advising them to determine whether or not they will adopt corporal punishment as a disciplinary measure.

accessed December 18, 2002.

[64] At least 34 states currently have similar regulations regarding the prohibition of corporal punishment on children under state legal custody. See Kathryn R. Urbonya, Determining Reasonableness Under the Fourth Amendment: Physical Force to Control and Punish Students, 10 Cornell J. L. and Pub. Pol. 397 n. 213 (2001).

[65] Cf. Straus, supra, 175 ff. for a discussion of a so-called “moral passage” and social evolution. Straus compares the evolution of attitudes towards corporal punishment of children akin to the overall expansion of views towards the rights of children and other disfavored classes.

[66] Although many policies indicate that spanking is to be used only as a last resort, and after all other measures have failed, one wonders what happens if the spanking should fail to produce the desired results.

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