Members Only | May 7, 2021 | Reading Time: 4 minutes

Why it’s legal in 19 states to physically assault kids

Last month, a principal "paddled" a child in front of her undocumented mother.

Why it's legal in 19 states to physically assault kids

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Stills from video secretly recorded by the mother.

In the United States, it is illegal to hit another person. It is illegal for police officers or correctional officers to use force for any reason other than subduing someone.1 A court of law cannot sentence someone to physical punishment, such as whipping or branding, which were common criminal punishments, historically speaking, because that would violate the “cruel and unusual” clause of the Eighth Amendment. Why then is corporal punishment still legal for schoolteachers to enact on students in 19 states

We are not talking about force to subdue violence or force in self-defense. No, we are talking about teachers “paddling” or “spanking” students, from the time they start school until they graduate, as punishment for misbehaving on school property. Parents are asked to provide permission for field trips, sexual education or school nurses administering medications, but not, in many state, for a teacher to spank their child. 

In 1977, a Florida court held that “cruel and unusual punishment” does not apply to corporal punishment for children in schools, writes Editorial Board member Mia Brett. The United States Supreme Court agreed in a 5-4 decision.

The legal justification dates to a common law doctrine of in loco parentis, which gives schools authority and legal responsibility over schoolchildren. Historically, this doctrine applied to the authority of schoolmasters to “discipline” kids, though its interpretation eventually included protecting them as well. It has also been expanded to give schools the right to search students, acting less as extensions of parental authority and more as agents of the state. Students, therefore, have fewer protections from the state while at school than at home where a parent can refuse searches.

In the 19th century, corporal punishment in schools was common and even encouraged. The only state to ban the use of corporal punishment in schools in 1867 until the 1970s was New Jersey. The legality of corporal punishment made it to the United States Supreme Court in 1977 in Ingraham v. Wright, at which point Massachusetts (1971), Hawaii (1973) and Maine (1975) had outlawed the practice. In 1970, 14-year-old James Ingraham was spanked with a paddle 20 times while restrained. After being diagnosed with a hematoma requiring medical attention, Ingraham’s parents sued, claiming the spanking was “cruel and unusual” punishment. A Florida court held that “cruel and unusual punishment” does not apply to corporal punishment for children in schools. The Supreme Court agreed in a 5-4 decision.

Since 1977, 27 more states have outlawed corporal punishment in public schools but only Iowa and New Jersey have outlawed the practice in private schools. Since 2017, Louisiana, Mississippi, Oklahoma and Tennessee have banned the practice for students with disabilities. However, many states explicitly allow for corporal punishment against disabled students, including Kentucky and Texas, which also “paddles” the most children in the country. In Texas, 10,222 children with disabilities, and 49,157 children overall, were subject to corporal punishment in the 2006-2007 school year. Children with disabilities are 50 percent more likely to receive physical punishment than non-disabled students. Boys are also more likely to receive it than girls, though there are reports of male teachers “paddling” female students.

Race plays an important factor in corporal punishment. Black students receive a disproportionate amount. Southern states, such as Mississippi, Alabama, Georgia, Arkansas, Texas and Tennessee use corporal punishment more than Northern ones. They also have a high concentration of Black students. However, Black students are also more likely to receive corporal punishment than white students in these states.2

Black students are also put in the position of breaking school rules simply by wearing their hair naturally. The New York Commission on Human Rights said that rules against natural hairstyles in schools and workplaces amounts to racial discrimination but school policies vary widely across the country. Not only do such rules put Black students in place to be punished more than white students, sometimes schools rise to physically punishing students for their hair by cutting it off. In 2009, a Milwaukee teacher cut off a 7-year-old’s braids and threw them away in front of the class. In 2018 a high school wrestler was forced to cut his dreadlocks in order to compete.

While there isn’t clear data on other students of color, a recent incident of a principal spanking a Hispanic student begs the question of how often families with undocumented members are too scared to report abusive punishment by teachers. In this incident, the school called a mother to school to pay a $50 fine for damage her 6-year-old daughter did to a computer. When she got there, the principle used a wooden paddle to spank her daughter in front of her and the school clerk who was supposed to be serving as a Spanish interpreter. The mother was too scared to intervene because she is undocumented. She instead stealthily recorded the incident on her phone. The police were called the next day when the mother took her daughter to the hospital. Florida allows corporal punishment, but the school district where this occurred does not. The principle is currently on leave while an investigation is underway.

Not only is corporal punishment abusive and racist, it doesn’t work. It damages the student-teacher relationship and makes school an unsafe environment. It has also been shown to increase absenteeism and antisocial behavior, all of which contribute to the school-to-prison pipeline. Not only does corporal punishment cause immediate pain and shame, but it can also have lasting physical and emotional damage. Corporal punishment also teaches students that violence is an acceptable response without urging communication and learning. Why are we still giving teachers free reign to physically abuse our children with no legal recourse? It’s time to take this issue up against at the national level and ban corporal punishment in all 50 states.

—Mia Brett


Mia Brett, PhD, is a legal historian who writes about the construction of race and gender in American history. She lives with her dog Tchotchke. You can find her tweeting @queenmab87.

Published in cooperation with Alternet. 

1

Of course, the definition of “reasonable” versus “excessive” force and “resisting” on the part of the suspect often seem to protect the officer.

2

See this Brookings Institution report: “Black students are twice as likely to be struck as white students in North Carolina and Georgia, 70 percent more likely in Mississippi, 40 percent more likely in Louisiana, and 40 percent more likely in Arkansas.”

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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