First published in Inequality in
Education, Center for Law and Education,
Number 23, Cambridge, Massachusetts, September 1978.
NOTE: Since this article was written, much has changed at the states' level with regard to corporal punishment in the schools. Twenty-seven states have now banned the practice. But at the Federal level, a see-no-evil, speak-no-evil policy prevails. Virtually no one in a position of national influence or authority seems willing to hold this hot potato longer than it takes to get rid of it. They are quick to tell you, with an audible sigh of relief, that the issue of school corporal punishment can only be dealt with at state and local levels. Meanwhile, Ingraham v. Wright continues to define schoolchildren's rights, or lack thereof, under the Constitution.
A list of the states which still permit school personnel to assault and batter pupils is appended after the footnotes.
The ghost of Old Jack Seaver must have been stalking the halls of Drew Junior High School in Dade County, Florida during the 1970-71 school year. Back in 1858, Jack was a teacher in Burlington, Vermont. After school one day, eleven year old Peter Lander, one of Jack's students, was leading the family cow past Jack's house. In the presence of other students, Peter directed some "saucy and disrespectful" language at the teacher. The next day Jack took a rawhide strap, and "did in his school, a little beat and bruise (Peter).' Peter sued for assault and battery. The jury returned a verdict for the defendant. In a famous decision, the Vermont Supreme Court upheld the right of teachers to beat students for acts committed off school grounds. 1
The Facts in IngrahamOld Jack Seaver would have fit perfectly into the administration at Drew Junior High in 1970-71. According to students, assistant principal Lemmie Deliford displayed brass knuckles as he patrolled the corridors. Solomon Barnes, another assistant to the principal, was said to sport both brass knuckles and a large wooden paddle at the school. One day, because fourteen year old James Ingraham was slow to leave the auditorium stage he was held face down on a table by Deliford and Barnes while the principal, Willie J. Wright, hit him on the buttocks at least twenty times with the paddle. Later that day Ingraham's mother took him to a hospital where painful bruises on his backside were diagnosed as a hematoma. A doctor prescribed ice packs, pain pills, sleeping pills, and a laxative and advised Ingraham to rest at home for at least a week. More than a week after the beating, another doctor examined him and found that the hematoma was still "swollen, tender, and purplish in color" and was discharging fluid. This doctor prescribed rest at home for an additional seventy-two hours. Ingraham could not sit comfortably for about three weeks. 2
Ingraham was not the only student to feel the sting of the paddle. Roosevelt Adams was paddled on about ten different occasions during the year. Once, in a hair-raising episode in a bathroom, he was whacked by Barnes on the leg, arm, back and neck. Another time, for an infraction which Adams claims he did not commit, Wright hit him on the wrist. A doctor prescribed pain pills and an ice pack for the resulting swelling. Adams could not use the arm for about a week. Daniel Lee, who claimed to be an innocent bystander to a paddling incident, was asked by Barnes to bend down and "get a little piece of the board." Barnes rapped Lee on the hand four or five times; the hand was fractured, enlarged and disfigured. For the grievous infraction of standing up in the study hall to wipe some foreign matter off the seat of his chair, Rodney Williams was beaten on the head and back with a paddle and whipped with a belt. Williams was out of school for about a week to undergo surgery to remove a lump on the side of his head caused by the beating. Other beatings by Deliford and Wright caused Williams to cough blood and receive treatment at a hospital.
Legal ProceedingsIngraham and Adams filed suit in U.S. District Court on January 7, 1971.3 They sought compensatory and punitive damages under 42 U.S.C. 1981-1988 for personal injuries caused by the unconstitutional infliction of corporal punishment. They also included a class action claim seeking declarative and injunctive relief against the use of corporal punishment on Dade County public school children.
On February 23, 1973, after hearing a week of testimony on behalf of the students, the district court dismissed the suit holding that the students had failed to present evidence sustaining the alleged constitutional violations. In a 2-1 decision, a panel of the Fifth Circuit Court of Appeals reversed and remanded the case for further proceedings.4 Although the panel declined to hold that corporal punishment was per se cruel and unusual punishment,5 it found that the system of paddling at Drew was "excessive in a constitutional sense."6 It also found that the punishment meted out at Drew was generally "greatly disproportionate to the offense charged" and "degrading to the children in that institution."7 The panel went on to hold that the Dade County school system's policies regarding corporal punishment did not afford students adequate procedural safeguards as required by the Due Process Clause. Among the procedures needed to comport with due process the panel suggested that the student be told "precisely what it is that deserves punishment." If the student denies wrongdoing, then school officials should make sufficient inquiries to insure that ". . .the student is guilty beyond any reasonable doubt."8
The Fifth Circuit reconsidered the case en banc and rejected the decision of its panel. 9 Of the sixteen circuit judges who heard the case, eleven voted to affirm the decision of the district court. Judge Morgan, who wrote a brief dissent to the panel's decision, authored the majority en banc opinion. The majority held that the Eighth Amendment's proscription against cruel and unusual punishment did not apply "to the administration of discipline, through corporal punishment, to public school children by public school teachers and administrators." 10 According to the majority, the purpose of the cruel and unusual punishment clause was "to prevent the imposition of unduly harsh penalties for criminal conduct." Because prison discipline "is part of the total punishment to which the individual is being subject for his crimes," it is also governed by the Eighth Amendment. But the extension of the cruel and unusual punishment prohibition to public school discipline would "distort the intended scope of the [Eighth] Amendment." 11 Likewise, the administration of corporal punishment on a student does not require procedural due process safeguards because paddlings are so "commonplace and trivial" in the schools that there is no deprivation of the student's property interests or loss to reputation. 12
The Supreme Court DecisionThe Supreme Court granted certiorari on the questions of cruel and unusual punishment and procedural due process while denying review of the question of whether corporal punishment was so arbitrary capricious and unrelated to any legitimate educational objective that it violated the concept of substantive due processes.'13 In a 5-4 decision issued on April 19, 1977, the Court affirmed the en banc decision of the Fifth Circuit.' 14 Mr. Justice Powell, writing for Chief Justice Burger and Justices Stewart, Blackmun and Rehnquist, first examined the common law tradition permitting the reasonable use of corporal punishment by public school teachers. Next he noted that of the twenty-three states which have enacted legislation on corporal punishment, only two (Massachusetts and New Jersey) have banned it, while the remainder have retained the common law standard or modified it only slightly. 15
With this "background of historical and contemporary approval of reasonable corporal punishment," Powell plunged into the constitutional issues of the case. Regarding the cruel and unusual punishment clause, he noted that the derivation of the language goes back to the English Bill of Rights of 1869 and was prompted by an "exclusive concern" for the "conduct of judges in enforcing the criminal law."16 Powell observed that this has also been the paramount concern of the U.S. Supreme Court in interpreting the Eighth Amendment. He could find no case outside the criminal process where the Court has ruled the Eighth Amendment to be applicable. Although Powell acknowledged that the Court has on several occasions stated that the meaning of the cruel and unusual punishment clause may evolve "as public opinion becomes enlightened by a humane justice," he asserted that any such evolution should not take the Eighth Amendment beyond the realm of criminal punishment.17 Moreover, and most important for this analysis, Powell concluded: "The schoolchild has little need for the protection of the Eighth Amendment."18 He listed a panoply of safeguards which "effectively remedy and deter" excessive corporal punishment. Among these are the openness of the school, the support of the student by family and friends, the constant accompaniment of other students and teachers, and the constraints imposed by potential civil and criminal liability.
Turning to procedural due process, Powell found that insofar as corporal punishment involves restraint and physical punishment, it implicates a liberty interest entitled to due process protection. These procedures should "minimize the risk of wrongful punishment and provide for the resolution of disputed questions of justification."19 These standards are fully met, in Powell's view, by existing procedures in state law. In Florida, for example, the teacher must confer with the principal before inflicting corporal punishment. Following the punishment, the teacher could be personally liable for damages in a civil tort suit or be prosecuted for the crime of assault and battery. Powell asserted that these safeguards "may be viewed as affording substantially greater protection" 20 than the procedures prior to a short-term suspension as mandated by the court in Goss v. Lopez. 21 Moreover, according to Powell, the imposition of procedural safeguards on the administration of corporal punishment could have deleterious effects on discipline in the schools. If a teacher's recommendation to paddle a student was rejected at a hearing, Powell felt that there would be a "consequent impairment of the teacher's ability to maintain discipline in the classroom...." 22 Individual teachers and entire school systems might abandon corporal punishment in favor of disciplinary measures which they believe are less effective. This might exacerbate the already serious disciplinary problem in the nation's schools, as documented recently by a Congressional committee.23 Therefore, while procedural safeguards might "marginally" reduce the risk of unwarranted corporal punishment, Powell concluded that the costs are far too great to justify such "a significant intrusion into an area of primary educational responsibility." 24
In dissent, Mr. Justice White, joined by Justices Brennan, Marshall and Stevens, sharply challenged the majority's interpretation of the Eighth and Fourteenth Amendments. White pointed out that nowhere does the Eighth Amendment state that its limitations apply only to criminal punishment. If the framers had intended such a meaning, the simple insertion of the word "criminal" would have accomplished that purpose. In White's view, application of the Eighth Amendment does not turn on whether the behavior of the alleged wrongdoer is labelled criminal or not, but on whether the sanctions are applied as punishment. This can be determined by asking if the sanctions are aimed at retribution, rehabilitation, or deterrence. If so, the sanctions are subject to the Eighth Amendment's prohibition against cruel and unusual punishment. In White's view, the paddlings in this case were clearly inflicted as a punishment and should be tested by the standard of the Eighth Amendment. 25 White made clear that he does not believe that corporal punishment is per se cruel and unusual, but only that when "corporal punishment becomes so severe as to be unacceptable in a civilized society.. ." does it become unconstitutional.
Justice White agreed with the majority that corporal punishment affects an interest recognized by the Due Process Clause, but took issue with the conclusion that existing remedies under state law are adequate. By definition, such remedies always occur after the punishment has been inflicted. In addition, while there may be a tort remedy under assault and battery for clearly excessive beatings, there may be no civil or criminal remedy for mistaken, although not clearly excessive, paddlings. There are both common law and statutory immunities in Florida regarding moderate corporal punishment for disciplinary purposes. If a school employee administered moderate corporal punishment in good faith, even if the wrong student is punished, Florida law does not appear to provide a remedy for the student. White also noted that any recovery by a student for mistaken or excessive corporal punishment would be limited to the personal assets of the disciplinarian because sovereign immunity bars the use of the school's revenues to pay for the torts of its agents. 26 It is absurd, therefore, for the majority to assert that a subsequent civil action provides "substantially greater protection" for the student than the procedures required by Goss. White also branded as "exaggerated" the majority's suggestions that Goss procedures would cause a deterioration in discipline. He wrote that it "need only take a few minutes to give the student 'notice' of the charges against him and if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story."27 In a separate dissenting opinion, Justice Stevens questioned whether it is consistent with some of the court's recent decisions to hold that a post-deprivation state remedy is adequate due process in a case involving a non property interest.
Was Justice Powell Right?The Ingraham case is rich in themes that deserve development. The adequacy of sate tort remedies is obviously one area where greater research and analysis are needed. [Ed. note: See article by P. M. Lines,in this issue.] The history of the Eighth Amendment and its purported restriction to criminal punishment also ought to be explored. The comments in this article, however, will focus on two rather modest themes. The first is the validity of Powell's assumption that excessive corporal punishment is exceedingly rare and the impact that assumption had on this case. The second is an examination of the potential effect, if any, Ingraham will have on other areas of student rights.
Powell's decision is replete with language suggesting that excessive corporal punishment is unusual. Based on a vague statement in the record, he assumed that the "mistreatment" received by the students in this case was an "aberration." 28 He wrote that it was the "rare case" where a student would miss school as a result of the infliction of corporal punishment.29 He argued that the absence of any reported tort case in Florida on unreasonable corporal punishment is not proof that such a tort remedy is unavailable, as White suggested, but rather "merely confirms the common-sense judgment that excessive corporal punishment is exceedingly rare in the public schools. 30 On several occasions, Powell opined that the administration of corporal punishment in our schools is marked by a "low incidence of abuse." 31 Powell also concluded that the chance that a student would be paddled for an infraction he didn't commit is "typically insignificant" 32 and "can only be regarded as minimal." 33
What proof existed in this case to support Powell's conclusions about the incidence of excessive and mistaken corporal punishment? Regarding excessive punishment, the record contained explicit testimony from the named plaintiffs as well as from fourteen other members of the alleged class. Some of this testimony was summarized at the beginning of this article. Because the trial court dismissed the case after the plaintiffs presented their evidence, there was no contradictory evidence in the record from the defendants. However, the students were cross-examined by defendants' counsel and, most importantly, for the purpose of determining if the trial court properly dismissed the case, the Supreme Court had to assume that the students' testimony was true. Beyond that, there was evidence that teachers and administrators in 231 Dade County schools were authorized to administer corporal punishment, but that ten of these schools declined to use it. Powell also emphasized the trial court's finding that the "instances of punishment which could be characterized as severe took place in one junior high school." From this record Powell reached his conclusion that excessive corporal punishment - in Dade County and across the nation - is "exceedingly rare."
The data probably don't exist to prove that excessive punishment is commonplace in the nation's schools. 34 But newspaper clippings are being collected 35 telling of teachers placing students in cardboard boxes, cutting their hair, burning their fingers, forcing them to eat cigarettes, and dragging them across a parking lot on a rope tied to a motorcycle, along with those reporting frequent beatings with paddles, belts, and fists. Granted, these clippings prove little more than the existence of disputes concerning student discipline across the nation. Yet they raise some serious questions about Powell's conclusion that student mistreatment is an "aberration." The truth is that Powell was in a factual vacuum when he reached this conclusion. He cited no studies to support his position; indeed none probably exist. Instead he relied on pure surmise to build his argument that corporal punishment is rarely abused. His conjecture is not only unsupported by facts on the record, but is abundantly refuted by the testimony of the students at Drew Junior High. At the very least the experience of the students at this school established the real potential for abuse. The administrators at that school had a free hand, and exercised it with the support of the central administration.36 If Drew Junior High was an "aberration', it wasn't because of institutional restraints in the other schools; it was because Willie Wright wasn't the principal in those schools.
The record is similarly thin on the question of the mistaken application of corporal punishment. It was Powell's conclusion that the chance of paddling a child without cause is "typically insignificant"and "minimal" because "paddlings are usually inflicted in response to conduct directly observed by teachers in their presence...." 37 Of course there is nothing in the record to suggest that the incidence of mistaken corporal punishment is any less than that of mistaken suspensions. Yet the risk of mistaken punishment was one factor that led the court in Goss to require informal hearings prior to suspensions.
The insightful reader might ask why any space was devoted here to excessive and mistaken corporal punishment when the Court held that no matter how egregious the punishment inflicted in the schools, it is not covered by the Eighth Amendment. The reason is that even though Powell's downplaying of corporal punishment was technically not necessary to his analysis of the cruel and unusual punishment clause, he still chose to include it. This suggests that it played an important role in his own reasoning or was necessary to persuade other Justices to join his opinion. Moreover, his description of the trivial nature of corporal punishment was repeated and incorporated into his analysis of the Due Process issue. Thus a serious reading of Powell's decision will confirm that it was critical that he minimize the potential dangers of corporal punishment. That he did so with virtually no evidence only serves to undercut the persuasiveness of his opinion.
Other Student RightsWhat are the implications of Ingraham for other areas of student rights litigation? First and foremost, Ingraham did not decide whether corporal punishment could be challenged with a substantive due process argument. The court's denial of certiorari on the substantive due process issue in this case preserved the en banc Fifth Circuit decision denying the plaintiffs' claim on this point. But this does not foreclose future cases based on the claim that specific instances of corporal punishment (or other forms of school discipline) are arbitrary, capricious, disproportionate to the alleged infraction, and not in furtherance of any legitimate government policy.
Second, the Court's decision on the cruel and unusual punishment issue will not have much impact outside the corporal punishment area. I am not aware of any other aspect of school discipline which has been challenged on an Eighth Amendment claim, although it undoubtedly has happened. Certainly if I were representing the student, mentioned above, who was punished by being enclosed in a cardboard box, I would have advanced a cruel and unusual punishment argument. Although Powell's decision now forecloses that legal theory in school cases, it should be remembered that no one had seriously argued that all corporal punishment was cruel and unusual. This case was limited to the narrower question of whether excessive physical beatings in the schools were unconstitutional. Thus even if plaintiffs had prevailed in the Eighth Amendment issue, the Court's decision wouldn't have abolished all corporal punishment.
This is not to minimize the impact of Ingraham on the plight of students, like the plaintiffs and the purported class, who have been recipients of severe beatings; it is only to point out that no one was reasonably expecting a sweeping rejection of corporal punishment by the Court. Opponents of corporal punishment have always recognized that success for their cause will only come through long and arduous efforts to convince state legislatures and school boards of the need to abolish corporal punishment. 38
Finally, the Court's decision on the procedural due process issue is disturbing and potentially quite significant for other students' rights cases. Powell's casual concern for the facts in this case was most obvious when he distinguished corporal punishment from suspensions by noting that corporal punishment normally does not interrupt the student's attendance at school. Missing school as a result of beatings at the hands of teachers was turned away as merely an "unintended" and "rare" consequence of corporal punishment.39 This may portend an effort to limit the impact of Goss to suspensions, and to distinguish all other forms of student discipline. 40 Many had been urging an expansion of the Goss procedural safeguards to other aspects of school life such as involuntary classification, failing grades, censorship of student literature, and detention. If the Ingraham rationale prevails and the courts minimize the impact of student disciplinary measures, maximize the effect of imposing procedural safeguards, and begin looking to state tort law to satisfy federal due process considerations, then there is little hope for the expansion of the Goss procedures.
A wiser approach, however, is a narrow interpretation of Ingraham. One of the major reasons that Goss wasn't followed in Ingraham was because there are "established [state] judicial remedies in the case of abuse" in the use of corporal punishment. 41 Assuming arguendo that state tort remedies actually exist for excessive or mistaken corporal punishment, it seems reasonably clear that state law remedies are extremely scarce to correct abuse in other types of student discipline. Certainly the common law tort of assault and battery is not available to a student who is improperly punished by the deprivation of extracurricular activities or by assignment to a special class for rowdy students. Nor are there any criminal sanctions available in such cases. Thus rather than following the Ingraham model, the better approach is to analogize such situations to suspensions and adopt the Goss rationale. In short, the Ingraham holding on procedural due process should be restricted to those areas of student discipline where there are "established" state court remedies for abuse. If this test is applied by the lower courts, Ingraham will have limited significance beyond corporal punishment situations.
Ingraham confirms that there are two attitudes about student rights currently vying on the Supreme Court. One is characterized by Powell's opinions in Goss and Ingraham which are based in large measure on a belief in local control 42 and a fear of the breakdown of school discipline. 43 His is a firm, almost uncompromising position. He has demonstrated that he is not reluctant to articulate new constitutional principles in order to build his arguments. Powell's counterpoint in these cases has been Justice White. Although White ably dismantles some of Powell's most extreme arguments, his opinions do not exhibit a strong pro-student position. The procedural guidelines contained in his Goss opinion, for example, are much less than many student advocates had urged. Moreover, in Ingraham he gratuitously stated that he did not believe that corporal punishment per se cruel and unusual.44 It is difficult to disagree with White's own assessment of his position in both Goss andIngraham: it is "less than a fair-minded principal would impose on himself." 45
The long-range impact of Ingraham on the student rights movement is difficult to gauge at this juncture. Hard-line administrators and school board members may seize the opportunity posed by Ingraham to reinforce and extend corporal punishment. The publicity surrounding the case may lead to efforts to repeal bans on corporal punishment in those jurisdictions which prohibit it. On the other hand, student rights advocates may have learned again that sweeping victories do not always emerge from the Supreme Court, even with the most compelling set of facts. They must redouble their efforts on all fronts - lobbying, educating the public, counseling students to ensure that no student has to endure a school like Drew Junior High.
FOOTNOTES1. Lander v. Seaver, 32 Vt. 114, 76, Am. Dec. 1556 (1859). The jury's verdict was reversed on other grounds.
2. Testimony regarding the level of corporal punishment at Drew Junior High School in 1970_71 is summarized at 498 F.2d 248, 253259 (5th Cir. 1974).
3. The district court decision is not reported.
4. Ingraham v. Wright, 498 F. 2d 248 (5th Cir. 1974).
5. Several lower courts have held that corporal punishment in the schools is not per se cruel and unusual. Ware v. Estes, 458F.2d 1380 (5th Cir. 1974); Glaser v. Marietta, 351 F. Supp. 555(W.D. Pa. 1972) and Baker v. Owen, 395 F. Supp. 294 (M.D. N.C.1975) aff'd per curiam 423 U.S. 907, 96 S. Ct. 21 (1975). Several other lower courts have held that the Eighth Amendment ban on cruel and unusual punishment does not apply to corporal punishment in the public schools. See Sims v. Wain, 388 F.Supp.543 (S.D. Ohio, 1974); Gonyau v. Gray, 361 F. Supp. 366 (D. Vt. 1973); contra, Bramlett v. Wilson, 495 F.2d 714 (8th Cir. 1974).
6. Ingraham v. Wright, 498 F.2d 248, 264.
7. Id.
8. Id. at 268. The Fifth Circuit panel also instructed the district court to determine on remand whether school officials could corporally punish a student over the objection of the student's parent(s).
9. Ingraham v. Wright, 525 f.2d 909 (1976).
10. Id. at 912. See Sims v. Wain, 388 F. Supp. 543 (S.D. Ohio,1974).
11. Id. at 914_15.
12. Id. at 919.
13. 425 U.S. 990, 96 St.Ct. 2200 (1976).
14. 97 S. Ct. 1401 (1977).
15. A survey of state laws on corporal punishment funded in part by the National Institute of Education reported that 33 states have authorized the use of corporal punishment, 1 state (Maine) authorizes it only to quell a disturbance, 1 state (Maryland) has an ambiguous statute, 2 states have banned corporal punishment, 12 states have no pertinent statute. Some cities including Washington, D.C. have abolished corporal punishment. R. Friedman and I. Hyman "An Analysis of State Legislation Regarding Corporal Punishment In the Schools," a paper presented at the Conference on Child Abuse, Children's Hospital, Washington D.C., February 20, 1977.
16. 97 S. Ct. 1401, 1409.
17. Id. at 1411 n.36. However, Powell specifically left open the question of "whether and under what circumstances persons involuntarily confined to mental or juvenile institutions can claim the protection of the Eighth Amendment." Id. n.37.
18. Id. at 1415.
19. Id. at 1416 n.46. Elsewhere in his opinion, Powell conceded that teachers "often" failed to follow school board procedural requirements. Id. at 1405.
20. In Goss, 4119 U.S. 565, 584, 95 S.Ct. 729, 740 (1975), the Court required an "informal give-and-take between student and disciplinarian, preferable prior to the suspension..." On the question of whether the student's liberty interest in avoiding unwarranted corporal punishment might be better protected by supplementing the traditional civil and criminal remedies with a Goss-type hearing, Powell stated that the case for administrative safeguards was not compelling because the state had preserved what "has always been the law of the land." 97 S.Ct. at 1416.
21. Id. at 1414, n.43.
22. Id. at 1417, n.50.
23. Id. at 1418, n.53.
24. Id. at 1418. Powell makes clear, however, that this case does not decide "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." Id. at 1416-17, n.47.
25. The existence of state law remedies should not be used to defeat a student's claim for relief under the Eighth Amendment because earlier this term the Court held that it was a violation of the cruel and unusual punishment clause to neglect a prisoner's medical problems even though under state law the prisoner had resort to a medical malpractice remedy in tort Estelle v. Gamble, 97 S.Ct. 285 (1976).
26. 97 S.Ct. at 1424_25 n.11. This question of whether state law provides an adequate remedy for recipients of corporal punishment is discussed elsewhere in this issue of Inequity in Education.
27. Id. at 1427.
28. Id. at 1416.
29. Id. at 1414, n. 43.
30. Id. at 1416, n. 45.
31. Id. at 1416, n.46 and 1418.
32. Id. at 1416.
33. Id. at 1418. One aspect of corporal punishment that Powell didn't address was the incidence of punishment disproportionate to the alleged violation. As noted, supra, the Court declined to grant certiorari on the substantive due process issues in this case. Id. at 1416 n.47.
34. The HEW Office for Civil Rights is collecting data on discipline but it is aimed at determining if race or sex discrimination occurs, not of the disciplinary measures are excessive.
35. See the Last ? Resort, the newsletter of the Committee to End Violence Against the Next Generation, 977 Keeler Ave., Berkeley, CA 94708.
36. See 498 F.2d, 265 n.33 where the Fifth Circuit panel recounted testimony from a district administrator condoning the actions of Wright in this case.
37. 97 S.Ct. at 1416.
38. Much work needs to be done. It has been reported that since 1972, 19 states have passed new statutes explicitly permitting the use of corporal punishment. Newsweek, May 2, 1977, p. 65.
39. 97 S.Ct. at 1414, n.43.
40. Justice stewart was the swing vote in the Goss and Ingraham cases. In Goss, he joined White's majority opinion holding that students were entitled to limited procedural safeguards prior to short-term suspensions. Powell's dissenting opinion in Goss contains many of the same points about student discipline that became part of his majority opinion in Ingraham.
41. 41 97 S.Ct. at 1416, n.46.
42. Also see Powell's majority opinion in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 49_55, 93St. Ct. 1278, 1305-8 (1973).
43. Although less colorful, parts of Powell's opinion are reminiscent of Justice Black's fiery dissent in Tinker v. Des Moines Independent Community School District, 393 U.S. 503,52526, 89 St.Ct. 733, 746 (1969).