Apply rod, spoil child
By Vivian Berger / Special to The National Law Journal, September 22, 2008

In 1977, the U.S. Supreme Court held, 5-4, in Ingraham v. Wright, 430 U.S. 651, that neither the Eighth nor the 14th Amendment constrains the use of corporal punishment in public schools. According to Justice Lewis F. Powell Jr.'s majority opinion, the cruel and unusual punishment clause was designed to shield prisoners, not kids: "The schoolchild has little need for [its] protection . . . .[T]he public school remains an open institution." Children can leave during the day, and they return to their homes at night. Even at school, "the child brings with him the support of family and friends and is rarely apart from teachers and other pupils who may witness and protest any instances of mistreatment" which are, in any event, aberrational. With regard to procedural due process, requiring a pre-penalty hearing would burden its imposition unduly. (Substantive due process claims have fared no better in the lower courts.) Generally, the justices remarked that despite the sharp split in professional and public opinion about the practice, only two states banned it, and they could "discern no trend toward its elimination." They were therefore content to leave correction of the occasional abuse to local tort law.
Dubious originally, Ingraham cries out for reexamination...

Dubious originally, Ingraham cries out for reexamination in light of a joint American Civil Liberties Union-Human Rights Watch report released in August, which contradicts most of the assumptions underlying the Powell opinion. "A Violent Education" reveals that even "routine" physical punishment is likely to be ineffectual and, worse yet, counterproductive. Brutality, rampant in some places, resists remediation by parents, school personnel or legal proceedings. Since 1977, the number of states prohibiting corporal discipline has risen to 29, plus the District of Columbia; internationally, 106 countries ban it. Now, respected experts and their organizations the National Education Association and the American Academy of Pediatrics, to name just two strongly oppose it. Thus, the time has come for Congress or the high court to reject Ingraham and grant school kids the same right to bodily integrity that even hardened prisoners enjoy.

The predominant type of physical punishment is "paddling." This involves repeated hitting on the buttocks (typically, three to 10 times) with a foot-and-a-half-long wooden board, a half-inch thick, with a six-inch handle. Often administered for vague offenses like "disrespect" or minor infractions like being late, talking out of turn, running in the hallway or not doing homework, and sometimes inflicted on kindergartners, paddling can cause severe injuries necessitating medical attention. James Ingraham himself, who received more than 20 blows, suffered a hematoma that kept him home for days. More recent cases as well as "A Violent Education" cite similarly shocking conduct: beatings of a three-year old boy and a pregnant girl, ear twisting and punitive withholding of bathroom privileges.

Often, teachers employ force as a first, rather than last, resort. The U.S. Department of Education's Office of Civil Rights (OCR) recounts that in the 2006-07 school year, 223,190 students were corporally punished, mainly in the South. (These statistics considerably understate the problem because of significant under-reporting and the failure to count multiple incidents of discipline involving a single child.) Worse, OCR's numbers suggest discrimination in practice. African-American pupils, who amount to 17.1% of the student population, constitute 35.6% of those paddled. Boys are also disproportionately targeted as are children with disabilities like hyperactivity, attention deficit disorder, and autism. These frequently cannot control "acting out" behaviors.

Even if physical punishment yielded positive results, one would have to question its place in a country committed to the rule of law. But experts contend that it actually causes harm beyond pain and bruising. "The research to date indicates that [it] does not promote long-term internalized compliance"; rather, it enhances aggression by "model[ing] the use of force to achieve desired ends." Elizabeth T. Gershoff et al., "The Case Against Corporal Punishment of Children," 13 Psychol. Pub. Pol'y & L. 231 (2007).Also, corporal punishment erodes trust between child and teacher and causes anger, humiliation, and sometimes depression, conditions conducive to dropping out.

Parents who seek redress for their children encounter resistance by schools, police and private attorneys. Tort suits based on vague notions of "excessive" force usually founder on legal shoals like official immunity or the need to prove malice. More fundamentally, as stated in Justice Byron R. White's dissenting opinion in Ingraham, a subsequent proceeding cannot undo the infliction of pain. Finally, like the death penalty, corporal punishment violates international norms. The 21st century United States should abolish both the greater and the lesser of these violent, anachronistic punishments.

Vivian Berger is a professor emerita at Columbia Law School.

SOURCE: www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202424593138&rss=nlj



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