Academic journal article Journal of Law and Education

Paddling and Pro-Paddling Polemics: Refuting Nineteenth Century Pedagogy

Academic journal article Journal of Law and Education

Paddling and Pro-Paddling Polemics: Refuting Nineteenth Century Pedagogy

Article excerpt

Andre Imbrogno argues that the elimination of corporal punishment in American schools is unlikely if that action is dependent upon the American judicial system or the ratification of the U.N. Convention on the Right of the Child.2 He cites Ingraham v. Wright,3 other case law, historical trends, and social science! His seriously flawed argument is based on outdated and incorrect information about the nature and meaning of corporal punishment in contemporary society. It is laden with truths and half-truths laced with quite a few misleading or incorrect assumptions about school paddling and a misperception publics' role in social change. He ignores historical trends that contraindicate assumptions made by the Supreme Court in Ingraham v. Wright. It is difficult to tell if he is just pessimistic about change or if he is espousing a conservative agenda based on nineteenth century polemics and pedagogy.

Imbrogno maintains that "approximately half the states permit their elementary and secondary schools to use reasonable corporal punishment in the disciplining of students."'S It is true that 23 states allow "reasonable" corporal punishment; however, "reasonable" force is undefined in statute and law. What was once "reasonable" is no longer accepted as such. With public support, authorities enforce relatively recent child abuse laws meant to protect children from being hit with instruments. Most recognize that hitting with anything has the potential to cause damage.6

"Reasonable" corporal punishment is an oxymoron. A paddling, which might be considered "reasonable" in Texas, could be illegal in Pennsylvania and would be illegal in New Jersey. This regionalism denies students uniform equal protection under law. This involves Fourteenth Amendment substantive due process discussed by Imbrogono.7 He recognizes that the federal courts of appeals are not of one mind on this issue.8

While the Fifth Circuit, in Fee v. Herndon9 and Cunningham v. Beavers10 maintains that students have no substantive claims, courts in other circuits hold the opposite. To recognize a substantive due process claim, federal courts agree that the corporal punishment must be so excessive that it "shocks the conscience."" Scott Bloom, in his 1995 law review article on corporal punishment, asserted: "Teachers and school administrators have consistently gone beyond the pale of authority and administered corporal punishment in a manner that shocks the conscience."12

A good example of public reaction to the shocking results of legally sanctioned paddling occurred in 1996 in California where Republican legislator Mickey Conroy introduced AB 101 which would have allowed corporal punishment of California students.13 At a public hearing on the bill, pictures of the battered behinds of students who had been legally paddled in other states were displayed by child advocates. The pictures were so shocking that most Republican legislators disassociated themselves with this bill, which ultimately died.14

The Fourth Circuit Court of Appeals, in Hall v. Tawney,15 maintained that there could be a separate federal cause of action available to plaintiffs under 42 U.S.C., 1983. In that case, the court held in favor of the West Virginia student who had been beaten so severely with a thick, rubber paddle that he required emergency treatment and was hospitalized for 10 days. The standard articulated by the Hall Court considers: a) the severity of the injury caused by the punishment; b) the proportionality of the force applied to the need presented; and c) whether the force was inspired by malice or sadism such that it amounted to an abuse of power so brutal and inhumane as to be shocking to the conscience.16

In Webb v. McCullough, the Sixth Circuit adopted the Fourth Circuit's test, finding for the plaintiff who was allegedly knocked to the ground, grabbed from the floor, thrown against the wall, and slapped by her principle on a field trip. …

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