"The Schoolhouse Gate": SCOTUS Strikes a Mighty Blow to Student Rights

A 1977 opinion allowed public school educators to strike students as punishment for infractions, and the archaic practice persists today.

|The Volokh Conspiracy |

This post is the third in a series of edited excerpts from my new book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." Of the many areas where the Supreme Court has played a role in American public education, none is so disconcerting as its refusal to rein in corporal punishment. The story of Ingraham v. Wright is oft-overlooked in constitutional law circles, but its impact remains significant.

On October 6, 1970, Charles R. Drew Junior High School student James Ingraham was one of several students who, when instructed to depart the auditorium's stage, responded with insufficient urgency. At Drew, this typical adolescent behavior amounted to flagrant insubordination. Principal Willie J. Wright informed the wayward students that he would deliver five blows to their backsides with a wooden paddle. When Ingraham protested, Wright summoned two colleagues to restrain him and struck Ingraham more than twenty times.

The force of these accumulated blows left Ingraham with injuries that required medical attention. The examining physician diagnosed Ingraham as suffering from a hematoma (an abnormal buildup of blood in human tissue), directed Ingraham to recover at home for at least a week, and prescribed a battery of painkillers, laxatives, cold compresses, and sleeping pills. Ingraham made two more hospital visits in the following days, eventually returning to school after missing nearly two weeks.

Ingraham's subsequent lawsuit challenging the infliction of corporal punishment in public schools brought the issue to the national fore. Clear-eyed appraisals provided ample reason to believe that Ingraham's arguments would prevail in the Supreme Court. Judicial decisions had recently eliminated the use of corporal punishment in prisons, and observers deemed it unfathomable that the constitutional safeguards afforded to convicted criminals would not also be afforded to public school students.

Corporal punishment's opponents could also draw solace from the Court's recent sensitivity to the constitutional claims of students. Decisions vindicating the free speech rights of student protesters and affording suspended students procedural rights combined to suggest that corporal punishment would soon be tamed. If due process required that students who were suspended receive notice and an opportunity to be heard, logic suggested that those protections should also be extended to students who were going to be struck with foreign objects.

It would have been difficult to concoct a ghastlier portrayal of corporal punishment, so Ingraham v. Wright appeared to call out for the Supreme Court's intervention. But in a 5–4 decision, the Court resisted that call. Justice Powell, writing for the majority, quickly dispatched Ingraham's first claim for relief, which suggested that extreme forms of corporal punishment violated the Eighth Amendment's protection against cruel and unusual punishment. Given that only two states then prohibited the practice, Powell explained that he could discern no legislative trend toward abolition.

He then asserted that, when educators dispense corporal punishment, those actions do not even constitute "punishment" for purposes of the Eighth Amendment. In order to fall within the Eighth Amendment's scope, the punishment in question must stem from some connection to a criminal conviction. Justice Powell acknowledged that this construction meant students could receive treatment that even prison inmates are spared but brushed aside that concern. "The schoolchild has little need for the protection of the Eighth Amendment," he wrote. "Though attendance may not always be voluntary, the public school remains an open institution."

Ingraham's second constitutional claim asserted that the absence of procedural protections afforded students before they were paddled violated the Fourteenth Amendment's Due Process Clause. Justice Powell rejected the notion that due process required any type of even informal hearing to occur before school authorities imposed corporal punishment. In Powell's view, requiring such hearings could harm the ability of teachers to maintain order in the nation's classrooms. "Elimination or curtailment of corporal punishment would be welcomed by many as a societal advance," Powell wrote. "But when such a policy choice may result from this Court's determination of an asserted right to due process, rather than from the normal processes of community debate and legislative action, the societal costs cannot be dismissed as insubstantial."

Justice Byron White, joined by three other justices, wrote a dissenting opinion that parted company with the majority on both constitutional claims. Justice White contended that the majority in effect improperly inserted the word "criminal" into the relevant constitutional text so that it prohibited only "cruel and unusual criminal punishments"—a limitation that the Constitution's framers had declined to make. As to the due process claim, Justice White skewered the majority opinion for requiring a student who had already been paddled to seek redress only after the fact: "The infliction of physical pain is final and irreparable; it cannot be undone in a subsequent proceeding."

Scholars and journalists alike excoriated Ingraham. Powell's opinion, critics charged, offered a parsimonious conception of the Eighth Amendment, one that was in no way compelled by precedent. The Chicago Tribune complained that it "makes no ethical, legal, or common sense to tolerate corporal punishment against children when it is not permitted against any other group of people in our society." The New York Times featured an even harsher assessment: "Each member of the majority deserves at least five whacks."

The outcome of the Supreme Court opinion that bore his name reached James Ingraham, then twenty-one years old, in a Florida jail cell, where he was serving a one-year sentence for resisting arrest. Not surprisingly, Ingraham declared the decision "a big letdown." It seems plausible to maintain that Ingraham's receipt of corporal punishment in 1970—even if it played no causal role in his jail stint—signaled his membership among society's marginalized citizens who account for an overwhelming portion of the nation's incarcerated population.

That story remains familiar today. Critics of corporal punishment frequently assail the practice by observing that the percentage of black students who receive the paddle is dramatically higher than their percentage of the overall student population. According to the most recent set of statistics compiled by the Department of Education, black students make up about 16 percent of the nation's public school students but receive about 35 percent of the nation's corporal punishment.

Today, a large majority of the nation's corporal punishment occurs in just a handful of southern states. But while recent data reveal a decrease in corporal punishment, they do not support the blithe assumption that educators must be on the verge of voluntarily relinquishing their paddles. In 2006, more than 223,000 students received corporal punishment in public schools during the preceding school year. In 2012, nearly 167,000 students still received corporal punishment in schools.

That students in American public schools continue to be paddled today is an atrocity. No legal issue sits higher atop the long list of needed educational reforms than eliminating corporal punishment against students—the sole remaining group that governmental actors are permitted to strike with impunity.

NEXT: Actually, Tariffs Do Matter

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  1. “Today, a large majority of the nation’s corporal punishment occurs in just a handful of southern states.”

    Go ahead Bob from Ohio and let’s hear your reasoning for this situation.

    My reasoning is they’re ignorant hicks.

    1. “My reasoning is they’re ignorant hicks.”

      Note to apedad: bigotry is the polar opposite of “reasoning”.

      1. There’s no such thing as bigotry of ignorance.

        1. Assuming that everyone in a given state is an “ignorant hick” is bigotry. Whether or not you believe it is irrelevant.

          1. It’s not everyone . . . but enough ignorant, backward people to control public policy.

            Calling a half-educated, ignorant, stale-thinking person a half-educated, ignorant, stale-thinking person is not bigotry, but right-wingers seem fond of making that claim.

            1. If I contend that you really are what I say you to be then an insult is simply truth? Hmmm…

          2. I completely agree that assuming that everyone in a given state is an “ignorant hick” is bigotry, and I never asserted that either, so I’m not sure why you brought it up.

    2. “Go ahead Bob from Ohio and let’s hear your reasoning for this situation.”

      Because Southerners, of all races, still believe in good manners and obeying teachers.

    3. I agree. And aren’t those the states that also have the worst performing schools? Of course, that’s only the public schools. The expensive private schools in those states don’t use corporal punishment, and still do a good job.

  2. My reasoning is that according to a YouGov poll of September 15-17, 2014, 61% of Blacks, 29% of Whites, and 27% of Hispanics think that spanking with an item should be legal.

    Go take a look at the poll before commenting on racial disparity on this issue.

    https://preview.tinyurl.com/yby8hzc8

    1. “61% of Blacks”

      Irrelevant, white liberals know what is best for blacks.

    2. So they get what they want? I wonder if those are the same people at the Black Lives Matter protests.

  3. Blacks represent 12% of the overall population, but 33% of the prison population, which is a bigger disparity than the cited disparity between school populations and those receiving corporal punishment. So it seems that the criminal justice system, overseen by the Supreme Court, is a little more racist than the school disciplinary system, where the court has taken a hands off approach. From which, I have no doubt, many liberals will conclude that Supreme Court needs to intervene more in school discipline. Because intersectionality, or something.

    1. I sense that most decent people are troubled by the evidence of systemic racism in schools and courts and would welcome judicial devotion of attention to the problem.

      The backward and intolerant seem likely to prefer clinging to the traditional and wrongful ways, thwarting the progress that makes America great, as long as possible.

      1. Presumably the most backward and intolerant are the folks actually running the terrible judicial and school systems.

        1. No, they’re just held back somehow by the people with less power and education who are also somehow disagreed with by the majority, impeding democratic rule. How these people manage it is a secret only known to a select few.

          Reminds me a bit of Zionist conspiracies, really.

  4. What is the legal/moral argument against corporal punishment in general? Yes, it causes harm if it goes too far, but the same can be said of school suspensions, or prison, etc. At my own school, paddlings were rare, and the student had the choice to take one or some other remedy, like a Saturday detention or school suspension. Most students chose the paddle. Similarly in the criminal justice system, I bet a lot of people, if given the choice, would prefer a one-time flogging to a year in prison. Less disruptive to the family, it doesn’t cause the person the loss of income, and doesn’t burden the state with the huge costs of incarceration.

    It may be “cruel” , but any more so than prison? And it’s certainly not “unusual” in the context of 1791, when the 8th Amendment was adopted.

    1. 1. The plaintiff in the case discussed in the article, was not given a choice between a paddling or other punishment.

      2. In many jurisdictions today, corporal punishment in the HOME, by the parents, would be considered to be child abuse by local authorities, even if there was no injury requiring medical treatment.

      1. This is false.
        Parents have the right to discipline with reasonable corporal punishment in all 50 states.

        1. There are jurisdictions where anything beyond a bare hand spanking would be considered per-say not reasonable.

          1. What any jurisdiction considers and what the law actually states can be two entirely different things.

            1. And what the law actually states matters very little when CPS comes to take someone’s kids away.

              1. It will during litigation.

        2. I think Delaware is the one state where it’s no essentially illegal.

    2. And it’s certainly not “unusual” in the context of 1791, when the 8th Amendment was adopted.

      Smacking the wife around if she got out of line was standard practice in 1791 . . . and in 1971, in some parts of America. Applications of mercury tinctures not only were not “unusual” in 1791 but also were considered downright medicinal.

      I guess witch hunts had faltered in the mid-1700s, though, so we probably won’t hear conservatives calling for burning suspicious women at the stake.

      Carry on, clingers.

      1. Smacking the wife around seems to still be a thing with DNC co-chairs.

        His accuser has videos, Dr reports and police reports. Thus far, Dems have refrained from burning her at the stake. They may just working up to it.

    3. What is the legal/moral argument against corporal punishment in general?

      Assault?

      1. If corporal punishment is assault then preventing a student leaving school grounds would presumably be kidnapping. But children are not adults and lots of things may be done to children that would be crimes if done to an adult. In fact it would be near impossible to raise a child without doing such things.

        1. If corporal punishment is assault then preventing a student leaving school grounds would presumably be kidnapping.

          Well, no.

          lots of things may be done to children that would be crimes if done to an adult. In fact it would be near impossible to raise a child without doing such things.

          Done by who? That matters.

        2. Children are raised well and healthy without doing such things all the time and at increasing rates every year. Unschooling has existence proofs of its efficacy.

          Preventing a human being from harming themselves or others is an accepted standard of limiting a human being’s freedom. Children are not adults, but they are human beings. And they don’t tend to act unsafely more often than adults.

  5. The schools our kids go to have paddling as a disciplinary option. Parents can opt out simply by filling in the form at the back of the school’s code of conduct handbook. We’ve never used the form and have no problem with the school having this option available. As far as I’m concerned it’s far less disruptive than a detention or ISS or a suspension.

    1. Let’s hope your children overcome their childhood circumstances and parents.

      1. I’m completely indifferent to your opinion, and that’s putting it mildly

        1. Enjoy the continuing American progress aligned with my preferences. Or dislike it. Either way, your preferences are unlikely to matter much in the context of American progress, much as they have been irrelevant for decades.

      2. Let’s also hope that such views are less likely to lead to breeding.

        1. People who support spanking breed a lot more than those who don’t.

  6. It’s “interesting” that libertarian “founding father” Barry Goldwater (aka Brent Bozell) argued in “The Conscience of a Conservative” that the Supreme Court had no right to rule on any educational practice of the states because the 14th amendment didn’t mention it.

  7. Ingraham leaves open the possibility of a substantive due process “shocks the conscience” claim were what happened to Mr. Ingraham to happen today. SCOTUS only ruled on the procedural due process and eighth amendment claims. Although Ingraham lost in the en banc fifth circuit on his substantive due process claim, that claim sought classwide relief and rested upon the assertion that paddling was arbitrary and capricious conduct; the substantive due process claim was intended to challenge the practice of paddling, not its particular severity in his case. By today’s standards, Ingraham might well be able to meet the “conduct intended to injure in some way unjustifiable by any government interest” standard governing “shocks the conscience” claims for the twenty whacks causing the described injuries, at least outside the fifth and eleventh circuits.

  8. Aarrr, there be a distinction atween the punishments which be right and proper on a pirate ship and the punishments which be right and proper for landlubbers on shore. Keelhaulin’, walkin’ the plank, and the like be simple common-sense punishments to keep order amongst a crew of desperate men. Yet suchlike punishments are *not* right and proper simply to beat book-learnin’ into a simple lad on land.

    So when I got word that this student in Florida was beaten so hard that he got sent to the sawbones, I thought the Supreme Court must have been crazier than a bilge-rat to approve such cruelty.

    But then I looked at the opinion and saw they *didn’t* approve the cruel treatment – far from it, they suggested the victim could take the assailants to law about it, based on it being excessive and not “moderate correction.”

    1. “At common law a single principle has governed the use of corporal punishment since before the American Revolution: Teachers may impose reasonable but not excessive force to discipline a child…Blackstone…did not regard it a “corporal insult” for a teacher to inflict “moderate correction” on a child in his care. To the extent that force was “necessary to answer the purposes for which [the teacher] is employed,” Blackstone viewed it as “justifiable or lawful.”…The basic doctrine has not changed. The prevalent rule in this country today privileges such force as a teacher or administrator “reasonably believes to be necessary for [the child’s] proper control, training, or education.” …. To the extent that the force is excessive or unreasonable, the educator in virtually all States is subject to possible civil and criminal liability.”

      So I decided I would only be outraged if the judges said the force was reasonable, and so far as I can tell – but keep in mind I am but a simple unlearned pirate – the judges did *not* say so, they rejected some *other,* pettifogging arguments which could of put a stop even to moderate correction as the common law knows it.

      While I do not think everything in the common law is good (like their laws against good honest sea rovers tryin’ to make a living), the stuff about moderate, not excessive correction, for landlubber lads sounds fair.

    2. Matey yee be talking some scurvy sense there.

  9. “as suffering from a hematoma (an abnormal buildup of blood in human tissue), ”
    This is also called a bruise.

    Riddle me this, Batman: If an action is not BOTH cruel and unusual, how is it to be perceived as punishment?

    1. Why would an action that is cruel and common not be perceived as punishment?

    2. Is it your position that the Constitution prohibits punishment, then?

    3. @ Longtobefree: I was also struck by the choice of that clinical term and the definition supplied along with it. It’s way too cute, an example of excessive advocacy. It reminds me of when I was in grade school and my big brother used to try to make me afraid through his confident diagnosis that I had garments all over my epidermis.

      Could paddling produce more than bruises? Sure. Did it on the occasion here described? Seems not. Are bruises pleasant? No, but they’re certainly not uncommon in children, abused or otherwise.

      If you can’t make your case without puffery, reconsider your case.

    4. Ah, no, hematomas and bruises may be related, (Like scratches and cuts.) but they aren’t the same. In a bruise the blood leaking from the damaged capillaries suffuses the tissue.

      With a hematoma, so much blood comes out that inflates a pocket in the tissue. It can take months to recover from one, and it may require surgery to drain, or leave a permanent scar.

      1. What you’re saying, Mr. Bellmore, is inconsistent with everything I’ve heard from testifying physicians in 40 years of law practice, and inconsistent with everything I’ve read on the internet (e.g. this, which doesn’t correspond at all with what you’ve written).

        Do you have (a) a medical degree or (2) a source? Are you perhaps confusing this term with “active hemorrhage”?

        There’s more by way of lawyer-like exaggeration in the medical description Mr. Driver quoted. It refers, for instance, to hospital visits, not “hospitalizations.” Was this child hospitalized? That’s a different animal altogether if so, but if it were true, I’d expect to see references to “hospitalizations.”

        My point is that I do not trust lawyer-advocate descriptions of medical testimony like this. I want to see the medical records; I want to hear from a treating physician with details. And when I see or read something which looks to me like an obvious exaggeration ? as this appears to me to be ? I begin wondering who’s got a motive to exaggerate, and who’s shooting square. But your mileage may vary.

        1. I should perhaps add:

          I’ve got two coronary artery stents, and accordingly take blood thinners, and will for the rest of my life. I have two or three reasonably impressive hematomas right this minute, from bumping into door frames or other clumsiness; it would be a very, very rare day when I don’t have a hematoma.

          Can they be serious? Sure. Are most of them? Not by a long shot. Is the term reserved for “pockets” in the tissue caused by large amounts of pooled blood. No, I do not believe that’s how medical professionals use the term, and if you intend to persuade me otherwise, you need to cite some sources.

  10. “It seems plausible to maintain that Ingraham’s receipt of corporal punishment in 1970?even if it played no causal role in his jail stint?signaled his membership among society’s marginalized citizens who account for an overwhelming portion of the nation’s incarcerated population.”

    No it doesn’t seem plausible. Rather, it is obviously pure hand-waving to try to connect one with the other. The reasonable, rational position would be that he was a punk in school, and a punk when he came out. To treat as cause and effect what is far more likely to be a correlation based on pre-existing behavior patterns is disengenuous at best.

    I got a few wacks with the rattan in the sixth grade. I didn’t become a criminal – but I did make sure I never gave anyone cause to give me a few more. Personally, I wouldn’t use corporal punishment in schools. Not because it’s wrong, but because for the kind of kid who is generally subject to it, all they learn is that they can take it like a man. It’s the threat of a beating that keeps kids in line, not the actual beating.

    1. I got paddled once, and knew not why. I have no idea what the justification was, now, but I do remember that whatever excuse the coach had was nonsense, and being baffled how the whole process could be thought of as fair. My conclusion was that school sucked even more than it had the day before.

      1. That was my observation of my classmates’ paddlings as well. My father, having been paddled in school, instructed me not to submit to a paddling under any circumstances – to resist passively and actively short of striking school personnel. It was not that he didn’t believe in corporal punishment. He believed it was his responsibility to determine whether I deserved punishment – not the schools – and what it should be. In the one instance where I was about to be punished for asking too many questions, I refused to submit citing my father. His observation related to me, and mine, was that teachers capriciously administered corporal punishment out of frustration rather than as a fair punishment for a real transgression.

      2. “I got paddled once, and knew not why.”

        Because you were a canoe in a lake?

    2. “It’s the threat of a beating that keeps kids in line, not the actual beating.”

      That’s a disgustingly unhealthy relationship. You do know that Machiavelli was writing a satire, right?

      1. And even if were okay for parents to have such a relationship with their children it should not be the relationship a government has with our children.

      2. The same is true about the death penalty. Who knows how many people didn’t pull the trigger or take one more fatal blow with a crowbar because seconds before that decision was made laying on a table with IV tubes in your arms flashed through their memory.

        Part of criminal law and punishment is the deterrent affect. How many DUI’s were avoided because someone’s buddy was driving home and ended up $5,000 in debt because of fines and lawyers fees. I know several of my friends, who are strict professionals, used to take a casual concern to driving after a few drinks. One of them gets a DUI and it out a few thousands made them reconsider paying $50 for a taxi home and dealing with getting the car the next morning. The answer it was probably a few dozen after he retold the story 100 times over and shared with them his CC debt from paying for everything.

  11. Justice White was often a conservative, but had some good criminal justice opinions where he provided a good argument that the state went too far. This was not treated as one, but there is a clear “penal” quality to school corporal punishment. White also showed some concern for limits (and his opinion was not an open-ended call to deny all corporal punishment) in schools, particularly due process, before. See, e.g., Goss v. Lopez.

    It would have been a big step to completely ban corporal punishment in schools in the 1970s but his dissent provided a middle ground. A careful limiting hand, so to speak, can be a good look for the courts.

  12. Mr. Driver sees “needed educational reform”, as compared to making a constitutional argument that the original decision should be overturned.

  13. From a victim – errrr student – of Nuns; You call that a paddling? What a light weight.

  14. It’s a fairly straightforward decision. Parents have a constitutional right to use corporal punishment to discipline their children. And schools act in loco parentis.

    It’s another example of where the constitution doesn’t have a personhood binary. Children neither have the same rights as adults, nor are mere pieces of meat.

    If there’s such a consensus to abolish it as Professor Driver claims, let legislatures abolish it. If hey haven’t, then there obviously isn’t the claimed consensus.

    1. Experience indicates that research should demonstrate that successful, advanced, educated jurisdictions tend to reject corporal punishment more quickly and more forcefully than do our rural and southern backwaters, which can be expected to cling to stale thinking and practices as part of a general rejection of modernity.

      1. Replace “southern backwaters” or “rural” with the proper slur AK is not willing to use and he would be banned from every major social media platform.

    2. You win the thread.

  15. Growing up (in the 90’s) my school had corporal punishment. It was not widely used but when it was everyone heard about it. The looming threat was enough to keep most students on the “straight and narrow”.

    Corporal punishment was performed every Friday. Names were called over the intercom and students had to come to the office. At least in my school there was some “due process”. The Vice Principle would hear you out for at least a few minutes and your parent(s) could be present. There was also a choice of an alternative punishment (usually 1-3 days of in-school suspension). In theory, if the punishment was more then one day of out of school suspension a student could appeal to the school board. The general rule was “a whack a day” but sometimes the VP would sometimes limit it to just 1 regardless. If the student was a girl the punishment would be meted out by the head lunch lady (maybe because she was the most senior woman at the school who was not a teacher.

    I never “fell under the paddle” but most of the punishment cam afterwards either through your parents or being made fun of while getting on the bus. A friend of mine got into a fight on campus and it was either 3 whacks or 3 days out of school suspension. He probably learned more from those 3 whacks then he ever would have from missing 3 days of school.

  16. “It seems plausible to maintain that Ingraham’s receipt of corporal punishment in 1970?even if it played no causal role in his jail stint?signaled his membership among society’s marginalized citizens who account for an overwhelming portion of the nation’s incarcerated population.”

    Or maybe it signals he was a thug from an early age and that continued as he got order.

    1. I highly doubt being paddled even a few times would make someone a hardened criminal. Corporal punishment is effective and has been shown to be through multiple studies. Also local educators should have the authority to select how students are punished not be subjected to a bald face rule on what is really an unenumerated right.

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