Corporal Punishment - Education Law
In the mid-1970s, the U.S. Supreme Court upheld the right of educators to use corporal punishment to foster discipline in the public schools. In doing so, the Court observed that the use of the hickory stick was a venerable tradition. Yet, 30 years later, there has been a dramatic shift in state policies and local practices governing corporal punishment. This entry briefly traces the origins of corporal punishment in American education, litigation that has challenged the practice, often unsuccessfully, and recent state policy initiatives restricting its use.
An American Tradition
Corporal punishment is a practice deeply ingrained in American education. Its roots reach into the pre- Revolutionary colonial era. Consistent with the thenpervasive view of schooling as a means of passing on pious values, and of discipline as the means of driving sin from children, parents and teachers alike believed their responsibility to correct children, including the use of the rod, was commanded by God.
The adoption and ratification of the Constitution, and the writings of some of its framers and their contemporaries in the late 1700s, served to recast the mission of education in the young republic. Even though the schools’ religious underpinnings faded and a new, enlightened view of civic responsibility emerged, the harsh disciplinary regime that had characterized the schools prior to the Revolution persisted well into the 1800s. Nor did the growing influence of the Common School Movement in the mid-1800s, with its emphasis on moral suasion and a more nurturing view of child development, radically alter the use of physical punishment in many schools. Throughout even the latter half of the 19th century, state court challenges to corporal punishment in the public schools were of limited success, with teachers most often accorded appreciable, if not necessarily the same, discretion as parents in the use of physical punishment. Illustrative of these were cases decided in North Carolina and Vermont respectively, State v. Pendergrass (1837) and Lander v. Seaver (1859).
During the first quarter of the 20th century, many states moved to enact school codes as a means of bringing greater uniformity to their educational policies and practices. Many codified the common law right of teachers to use corporal punishment and established standards for its usage. Most authorized corporal punishment when “reasonable” or “necessary” and provided that teachers could be held liable only for punishment that was “excessive” or, in some jurisdictions, “grossly excessive” or “malicious.”
As critics of various school policies turned to the federal courts with some success beginning around the midpoint of the last century, a new wave of litigation focusing on corporal punishment emerged. Federal courts, however, proved largely unreceptive to constitutional challenges that sought to restrict the discretion of teachers and school administrators to use physical punishment as a means of maintaining discipline.
In 1975, the Supreme Court summarily affirmed a lower federal court’s order upholding the authority of school officials to use corporal punishment, even over prior express parental objection to its use with respect to their child. The Court’s affirmation in Baker v. Owens (1975) suggests that minor or moderate physical punishment does not unduly infringe on the liberty interest of parents to guide the upbringing of their children, at least where it is rationally related to a legitimate purpose such as the maintenance of order in the schools.
Two years later, in Ingraham v. Wright (1977), the Supreme Court rejected arguments that corporal punishment violated the Eighth Amendment’s prohibition on cruel and unusual punishment. The Court found the Eighth Amendment inapplicable to schools, because the framers of the Constitution intended it to protect only those incarcerated for the conviction of crimes. The Court in Ingraham also held that the administration of corporal punishment by school officials does not violate the procedural due process provisions of the Fourteenth Amendment, at least where the practice of corporal punishment is authorized and limited by common law. In arriving at this conclusion, the Supreme Court noted that the use of corporal punishment as a means of school discipline dates back to the colonial period, and that in spite of the fact that public and professional opinion on the issue has been sharply divided for more than a century, “We discern no trend toward its elimination” (pp. 650–651).
The Court in Ingraham, however, expressly declined to review whether the infliction of severe corporal punishment on a student may, under certain circumstances, constitute arbitrary and capricious action in violation of the substantive due process protections of the Fourteenth Amendment (p. 659 note 12). Since 1977, then, the majority of the federal court challenges to school-administered corporal punishment have been brought on substantive due process grounds. Only with respect to such substantive due process claims have students, with any regularity, won acknowledgment of constitutionally guaranteed rights, and then only where the practice of corporal punishment has been found to be so severe as to” shock the conscience of the community” or reflect “maliciousness” on the part of school officials. Illustrative of these federal appellate cases is the Fourth Circuit’s ruling in Hall v. Tawney (1980), which has been followed in most but not all other circuits.
Even as the Supreme Court turned a largely deaf ear to the children and their advocates challenging corporal punishment in the 1970s, state legislatures and administrative agencies were becoming more receptive to their concerns. At the time of Ingraham, only New Jersey and Massachusetts prohibited corporal punishment of schoolchildren as a matter of state policy. Only Maine had added a prohibition on corporal punishment by the end of the decade. The magnitude and pace of state policy review and revision, however, increased substantially beginning in the 1980s. Fourteen states adopted legislation or administrative rules prohibiting the use of corporal punishment before the end of the decade, most coming in a flurry of policymaking during the latter half of the decade.
This state policy activity, fueled by growing social science evidence calling into question the effects of corporal punishment, persisted into the 1990s. By the opening of the 1994–1995 school year, eight additional states had enacted legislation or administrative regulations banning corporal punishment from their schools. By 2005, a total of at least 28 states had adopted prohibitions on the use of corporal punishment by public school officials. Several additional states adopted legislation either permitting parents to exempt their children from such punishment by notifying school officials of their objection or prohibiting its usage unless local boards of education affirmatively elected to continue its usage after a study of available disciplinary alternatives.
While the trend over the last three decades has clearly been toward the elimination of the use of corporal punishment, more than 20 states continue to authorize its use, either as a matter of common law or by virtue of express statutory authority. The preponderance of these states are in the southeast and southcentral region of the country. Yet according to data from the U.S. Department of Education, Office for Civil Rights (2004), legislative enactments in other regions, as well as lessening usage by districts in the South, have contributed to the decline in the number of students who experience corporal punishment annually, from a high of 1.5 million in 1976 to less than 300,000 in 2004.
Charles B. Vergon
See also Due Process; Eighth Amendment; Ingraham v. Wright
- Bagley, W. (1915). School discipline. New York: Macmillan.
- Hyman, I. (1989). Reading, writing and the hickory stick. Lexington, MA: D.C. Heath.
- U.S. Department of Education, Office for Civil Rights. (2004). Data from elementary and secondary school civil rights survey. Available from http://www.ed.gov/about/offices/list/ocr/data.html?src+rt
- Baker v. Owens, 395 F. Supp. 294 (M.D.N.C 1975), aff’d without opinion, 423 U.S. 907 (1975).
- Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980).
- Ingraham v. Wright, 430 U.S. 651 (1977).
- Landers v. Seavers, 32 Vt. 114 (1859).
- State of North Carolina v. Pendergass, 19 N.C. 365 (1837).