The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.