from: Charlie

Ingraham v. Wright, No. 75-6527

The diff~cult issue in this case is whether the

Eighth Amendment forbids school administrators to use

corporal punishment so severe as to result in physical

injuries requiring medical attention. I would be inclined

to say that the Eighth Amendment applies to such punishment,

despite the fact that the state does not characterize the

infractions punished as "crimes", and that the p~

at Drew Junior High School ·was · in the instances pra,wd

below so excessive in relation to the alleged infraction

as to "shock the conscience" and therefore was "cruel and a-~

unusual". The other issue whether the children have ~ ~ a right to due process prior to being punished -- seems to ~ ,--,.~

me easily answered in the negative. ~~ ~

I.

a. Does the Eighth Amendment apply? The best argument

that the Amendment does not apply is simply that this Court

has never yet found it applicable except to penalties that

result from criminal prosecutions, and has in several cases

held it inapplicable to civil sanctions such as deportation,

imprisonment for civil contempt, and mail s t op orders for

mail fraud. See cases cited in Nat'l School Boards' Brief,

11-13. Reinforcing that argument in this context are the

strong policy arguments against judicial intervention in

the day-to-day affairs of the public schools.

The best answer to these arguments might proceed as follows:

First, it does not make sense to turn Eighth Amendment

scrutiny of state punishment of an individual on the state's

characterization of what it is doing. Thus the Court recognized

in Robinson v. California, 370 U.S. 660, 667 (1962),

"[e]ven one day in prison would be cruel and unusual

punishment for the 'crime' of having a conn:non cold."

This would be so, it would seem, regardless of whether

that

the imprisonment was imposed as a criminal or a civil

sanction; the only difference is that the state would

2.,

afford less process before imposing the punishment if ~ ~ 444.. .........

it were viewed as a civil remedy. Similarly, if a G-~f-

school administrator decided that instead of spanking ~~

disciplinary problem-children he was going to lock them~~~ up in the basement for a couple of days, t hat would seem ~ .. ~M;.,...f

no less "cruel and unusual punishment" than if school ~-as crimes ~ ,_.,

regulations defined/certain infractions (e.g. throwing ~·~

spitballs) for which overnight lock-up would be the

appropriate sanction. Cf. In re Gault, 387 U.S. 1 (1967)

(rejecting the criminal-civil distinction as a basis for

denying juveniles due process).

Second, it does not avoid the difficult questions

of whether particular punishments are "barbaric" or "shocking"

to hold the Eighth Amendment inapplicable to school

discipline. For the Fourteenth Amendment does apply to

any state intrusion on a person's physical integrity that

is so arbitrary and unreasonable as to "shock the conscience."

Rochin v. California~2 UoSo 165 (1952). You have observed

that the standards for applying the "cruel and unusual punishment"

language of the Eighth Amendment and the Due Process Clause

of the Fourteenth are "fundamentally identical" in the context

of capital punishment. Furman v. Georgia, 408 u.s. at 422 n.4.

The standards would also be the same, I think, in the

context of corporal punishment of schoolchildren. Under -either provision, the school administrator's conduct '------ -would have to be truly outrageous to warrant federal ~ ~twa......, ._. ?7'"'7._...._, ~

~li~£. w>The point is that holding the Eighth Amendment

simply inapplicable does not relieve the federal courts

of the duty to decide when the outrageousness point has

* been reached.

Third, applying the Eighth Amendment to punishment

in the schools would result in far less intrusion i nto

school administration than a decision like Goss. If the

Court sets any kind of "shocking" standard of review,

it seems unlikely that there will be very many schools in

which disciplinary prictice comes even close to the line.

In this suit,for example, only one of the 237 Dade County

schools comes close -- assuming that the plaintiff's

evidence is not rebuttable by the teachers in that school.

b. Is the punishment "cruel and unusual"? I do

not think the Dade County School Board's policy of permitting

paddling, limited to 5-7 strokes with a two-foot paddle,

violates the Eighth Amendment. As you point out, the

Nat'l School Boards' Brief is persuasive on this point.

(22-36). But the individual treatment of some students

at Drew Junior High School apparently went well beyond what

the School Board had authorized. Ingraham for example was

- * See the attached opinion by Friendly exploring the anomoly that would be created by protecting only those convicted of crimes from barbaric punishments. The Friendly

J approach is not available in this case because.in granting a limited cert, the Court excluded review of CA S's holding ~ that there was no violation of substantive due process. ~a

?

held down on a table and given 20 licks, resulting in

a hematoma on his buttocks, all for the 'crime' of

being slow to leave the auditorium stage. I have little

doubt that t he defendants could prove that Ingraham's

offense was a good deal more serious than that, but for

now the question is whether, if the plaintiffs' version

of the facts is correct, the defendants have violated

the Eighth Amendment. This is a close call, but I would

come down on the individual plaintiffs' side.

Of course, all the Gourt would have to do would be

to reverse CA 5's holding that the Amendment does

not apply and to say what the standards would be. It could

then remand for CA 5 to decide in the first instance whether

the standards were satisfied. If the Court took this

course, it might also raise the question of the class-action

certification, which would be obsolete if the Court's ~ . standar~erved to isolate the named plaintiff's and a ~

few others at Drew from the rest of the students in the

Dade County system. ------ II.

On the procedural due process issue, I think this

is an a fortiori case for the reasoning of your dissent

in Goss. A majority is bound to agree this time. The

only tricky issue will be how to distinguish the "liberty"

interest section of the Goss majority opinion. But it

should not be too hard to say that a paddling is less

damaging to one's reputation than a suspension, and, in

the absense of any accompanying change of status, Paul

v Davis, 96 S.Ct. 1155 (1976), controls. As petr s

concede the existence of an Eighth Amendment interest

in "liberty" will not require any due process safeguards,

since " the excessive conduct which is the subject of that

[Amendnent] cannot be legitimized by a prior hearing."

Petr's Brief at 44, n.l9.

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CH A MBERS O F

JUSTICE P OTTE R S TEWART

Dear Chief,

.:§u:vrmtt <qourt of tqt ~nitt~ .:§f:attg

';maglrittgton. gl. <q. 20~11-~

Upon the understanding that you have now assigned the opinion in No. 75-652.7, Ingraham v. Wright, to Lewis, I have reassigned the opinion in No. 75-1262, United States v. County of Fresno, to Byron.

Sincerely yours,

The Chief Justice

Copies to the Conference

,;

j;up4mrt <!Jourt of tltt ~tb j;tittts ' ~as!rington:. ~. <!J. 2llgtJ.t.~

CHAMBERS OF

JUSTICE BYRON R. WHITE

Dear Chief:

November 16, 1976

I appreciate having the opportunity to see

the light, but my notes show that I was in the

minority on the Eighth Amendment point in

No. 75-6527, Ingraham v. Wright. Someone else

should perhaps take this on.

Sincerely,

The Chief Justice

Copies to the Conference

/

I would like from the Library of Congress

1. A compilation of state "'statutes that deals with the" administering of corporal punishment in the public schools. It would be helpful, also, to know whether there is evidence of a trend either toward an increase or a decrease in the number of states that authorize corporal punishment as a disciplinary measure.

2. If studies or reports have been made withint~h~~~~ decade on the use and effect of this disciplinary technique we would like a reference to such studies and reports. If there is a particularly authoritative study, based on empiric evidence, it would be helpful to have a brief aummary of its findings. We are interested in any serious research or study made on this subject within the past decade, including any legislative investigations.

3. In the possib~y related area of disciplinary problems {i.e., problems arising from truancy, iisorders or violence in the schools and particularly in the classrooms), we also would like a reference to relevant investigations, studies and reports within the past decade. It is understood that at least one congressional subcommittee has conducted an investigation and made a report within the past two or three years.

* * * * I would like to have this by the first of next week if

this is possible.

lfp/ss 11/17/76

' I~ l· ;f.l::ll: ~· t

MEMORANDUM

TO: 17' 1976

further our random discussions on yesterday, I

dictate this memorandum to confirm a possible view that may

merit further consideration by both of us.

In the absence 'of standards or limitations in a state

statute, corporal ' punishment could include an almost unlimited

number of situations in. which it may be administered as well

as an equally open-ended range in the punishment tt~~lf. MY

recollection is' that the Florida statute in effect at the time

this case arose was without meaningful standards. We were told l' ~ '

that a new statute has since been enacted with standards and

safeguards against abuse.

~' Subject to whatever a statute may provide, it may be

possible for purposes of procedural due process analysis to

classify student corporal punishment into two broad categories:

(i) That administered by the teacher on the spot

and at the time. Almost inevitably under these circum­

· stances, the punishment would be limited in duration r

and severity ~·&·• a slap, a rap with a ruler); and

(ii) That administered more formally or in a more

,

There would be no instant punishment ~\

.'

,reacting to an offense; rather than the offending pupil

would be removed from the classroom (perhaps to the

principal ' .s office) and administered paddling, spanking

Jor slapping in some measured way, .!t·&· , 20 licks. ,.,!;t,.,..:

2.

Although it would be difficult to define with great precision

the two classifications suggested above, it is likely that most

instances of corporal punishment would fall into one or the

other. .There ma~.l be different considerations in determining

whether constitutional safeguards are appropriate •

. · 'In the' first ' category it would be difficult to argue . ' I .

seriously tha ,, ,.' liberty interest ia . implicated. The detention

would be inconsequential. A different situation may exist

with respect to punishment that falls within the second category.

The pupil would *be ·detained fo1r a measurable period of time, .:

both in the process of setting the stage (locale,. etc.) for

the punishment and ini~ts administration.

In this case, perhaps the record will shed light as to

exactly what ,transpired. But at least it is clear from the , :.

plaintiff's evidence that the beatings they describe are unlikely

to have occurred spontaneously in the classroom. It is more

likely ' that they reflected some consultation (between teacher

and principal), some judgment as to the severity of the punish­

ment to be administered, and then the administering thereof.

In such a situation a nonfrivolous argument can be made for

some minimal procedural due process: that the teacher should

3.

at least obtain the prior approval of someone on the administrative

staff, that such person afford the student an opportunity to deny

the charge, assert mistaken identity, present mitigating facts,

etc. The Goss v. Lopez model (as silly as .it is) would be a

precedent. The type of initial "probable cause" hearing approved

in Morrissey may be another possible precedeaa. But there would

be numerous questions: could the student demand that his parent ~· ~

be present, could he call student witnesses, insist upon some

written charge, e~. These sort of questions suggest Pandora's

box that I would avoid.

Yet, despite ' my general misgivings about adding another

constitutional restraint on what is normally a minor incident

in a classroom, I must say that there is something fundamentally

unfair about allowing a brutish teacher to beat a childwmthhout

safeguards of any kind.

If we could develop a frame of analysis that distinguished

between the two types of situations and required minimal due

process only where there is a risk of bodily harm, this

might be the answer.

you think?