Eloise Ingraham, as Next Friend, Etc. v. Willie J. Wright, I, Individually, Etc.

RIVES, and MOR- Before WISDOM Judges. GAN, Circuit Judge: RIVES, Senior Circuit ago, century member of a More than a Supreme Indiana Court of made following observation: longer moderate- husband can no “The nor, according wife; ly chastise his authorities, the mas- more recent apprentice. Even ter his servant degrading the naval cruelties Why the service have been arrested. schoolboy, person ‘with his morning face,’ shining should be less eye of the law than sacred sailor, apprentice is not or the of the explained.” easily (4 (Por- Cooper McJunkin, Ind. J.). present ter) (Stuart, In the case, issues consider constitutional in the related County, public school Florida. January 7, a filed on Plaintiffs containing counts.

complaint three individual ac- Two were One and Counts punitive compensatory and tions high brought by junior damages two under U.S.C. §§ students school 1981-1988, un- jurisdiction claimed with and der 28 § U.S.C. § injuries personal re- claimed sulting corporal punishment ad- from in al- defendants certain ministered leged of their constitutional violation complaint rights. Three of the Count brought action, a class 1981-1988, jurisdiction U.S.C. §§ and § under 28 U.S.C. § claimed filed on behalf action This class sys- public school of all students sought injunctive tem of Dade declaratory the use relief throughout system. county school presented evi- plaintiffs their Miami, Fla., Feinberg, Alfred complaint Three of plaintiffs-appellants. Count dence on long testimony tain the district additional desired in a week trial before placed in the jury. Plaintiffs’ counsel were a Those who testi without deposition stipulation.” record former included sixteen students fied Thus, really equity students, one parents and other rela this case involves several case, styled Three, professor law students, Count and two educa tives of cases, styled psychology, One Two. The and a number Counts tional testimony administrators, in additional summarized teachers and stipulation. Superintendent February 23, cluding On the defendant Whigham. court first dismissed Count The evidence also Edward complaint, photograph, stipulations, an Three then con- included a lawfully interrogatories, jury school records cluded could swers reports. At the close of the find that either of the medical depri- case, plaintiffs’ the defendants moved Counts Two sustained One' 41(b), rights. under Rule F.R. vation of for dismissal constitutional part provides: Civ.P., in relevant erred the district court We hold dismissing each of the three counts of plaintiff, in an action tried “After therefore, plaintiffs’ complaint, and, re- jury, a without has com- court proceed- for verse and remand further presentation pleted the of his evi- ings. waiving dence, defendant, without right evidence in the his offer I. may granted, the motion is not event ground for a on move dismissal JURISDICTIONAL ISSUES upon the and the facts law Defendants assert that there is no A. right plaintiff no has shown relief. jurisdiction federal Three over Count as of the facts court trier under 42 and 28 U.S.C. 1981-1988 §§ U. judg- render then them and determine 1343, S.C. 1331 and § because § against plaintiff may de- ment or County Dade School Board and the Su any judgment render until the cline to perintendent of Schools in their official all the evidence. If the court close of capacities “persons” are not amenable to judgment renders merits rights support civil actions. In of this against plaintiff, the court shall City claim defendants cite Kenosha v. of findings provided in Rule make as Bruno, 2222, 1973, 507, 412 U.S. 93 S.Ct. 52(a). the court its order Unless City Kenosha, 37 L.Ed.2d In 109. specifies, of for dismissal otherwise a Supreme municipali Court held that two dismissal under subdivision “persons” ties in Wisconsin not provided dismissal not for in this meaning within the of 42 U.S.C. 1983. § rule, other than for a dismissal lack Masur, Campbell 1973, 5 v. Cir. 486 jurisdiction, improper venue, or for 554, plaintiff F.2d a a school where sued join party failure a under Rule superintendent a board 19, operates upon adjudication as an capacities only, their official the court the merits.” sent the case back to the district its order The district court noted in for re-examination and further consider agreed parties then counsel light City ation in Kenosha.1 support the evidence offered Count Superin “would be considered Three Plaintiffs have sued Whigham Court, tendent as if motion for directed Edward L. Schools having verdict, capacity, been offered on his individual as well as Two, provided capacity.2 One and that cer- his Counts official It is clear that Tucker, 1974, (a Wright, principal), 5 2. 1. see v. Cir. Also Cheramie Willie I Lemmie J. 586, 587, (an principal) held F.2d where this Court 493 Deliford assistant and Solo- principal) government (an mon arms Barnes assistant a that various Louisiana, of the state Department High such as the each also been sued in his official meaning capacity. ways, persons not individual within 42 1983. § U.S.C. 252 authorizing implementing corporal superintendent, an in- sued as the school County. Rule “person” See dividual, the mean- within is a Mullaney Anderson, 21, F.R.Civ.P.; Sterzing v. ing Bend v. Fort 1983. § 415, 428, 1974, 1952, District, L. 342 72 S.Ct. 96 U.S. Independent 5 Cir. School Louisiana, 458; v. 93, 2; Ed. United States 92, p. n. United Farm- 1373, 1957, Housing 515, 1 L. Project, 77 S.Ct. Inc. of Florida

workers Verschoor, 1525; Halladay 1974, 8 Ed.2d v. City Delray Beach, Cir. 493 5 100; sug- F.2d Rakes Cole would To hold otherwise F.2d 799. man, E.D.Va.1970, F.Supp. suing any gov- 3A gest impossibility of Moore 31.05 employee [1]. ¶ § ernment official Kenosha, supra, City does 1983. Although argued by B. possibility require intimate the or even parties appeal, appropri on this it is bring right of such a result. § ate to examine Three of whether Count local offi- a state or 1983 action the instant case should have been heard Monroe cial well established. See three-judge district court.3 Pape, 1961, S.Ct. U.S. Though party requested neither progeny. see L.Ed.2d and its Also three-judge court, consent, ei- Alameda, 1973, Moor v. implied express, ther cannot authorize L.Ed.2d single judge to hear a case that falls within the terms of 28 U.S.C. § City Prior decision in Wainwright, of Sands v. Kenosha, held a number of courts had (en banc); F.2d Liddy, Borden Co. v. proper that cities were defendants 1962, 871; Amer- equitable 1983 where relief was § Sep. icans United for of Church & State sought. City discussion in See Keno- Paire, 1973, 1 Cir. F.2d 462. The Bruno, supra, sha 514, 412 U.S. at 512- present district court in the case consid- 516ff, (Doug- and at 93 S.Ct. 2222 question ered the and ruled that a J., dissenting las, part). in The com- three-judge district court was not re- plaint present case, and all of the agree. quired. We proceedings court, in the district oc- sought injunctive Plaintiffs relief re City curred Kenosha de- before straining defendants, agents their Taking these cided. factors into consid- employees inflicting any from form eration, the district court should on re- corporal punishment upon in grant likely plain- request mand County public system.4 the Dade tiffs add the individual members of request injunction Plaintiffs did not County par- the Dade School Board as restraining any spe the enforcement of ties defendant under Count Three of statute, argu cific Florida in oral complaint. regard to whether Without Court, ment before this for counsel may plaintiffs ultimately be entitled plaintiffs stated, challeng “We are not any equitable relief ing constitutionality of the Florida members, School Board or its fairness statute.” Section 232.27 of Florida judicial jus- and efficient administration Annotated, provides: Statutes tify the addition of the individual school parties “Each teacher board or other members as member insofar as the plaintiffs declaratory staff of equitable school shall seek assume authority restraining such for relief the control of the the School Board from request injunctive Two, Plaintiffs’ for re- relief Counts One and which are individual straining administering clearly damages, require the defendants from actions for do three-judge Therefore, in R. Drew if Charles district court. High obviously three-judge Junior included School determined that injunctive larger request Three, within the re- to decide necessary Count we would throughout system. obliged county lief the entire still be consider or all most underlying in re- facts this case order disposition view the court’s Counts One and Two. assigned pupils him as Griffin v. School Board of Prince Ed- good principal keep 1964, County, 218, 327, shall or- ward 377 U.S. 328, 1226, 256; der in the classroom and other Ro- S.Ct. 12 L.Ed.2d places assigned 1939, Commissioners, in which he is to be in rick v. Board of charge pupils, but he not in- shall 307 U.S. 83 L.Ed. 1242; Bank, parte flict con- before Ex Public National sulting principal or teacher 278 U.S. 49 S.Ct. 73 L.Ed. charge school, 202; Collins, parte in no case Ex degrading shall such unduly or 48 S.Ct. 72 L.Ed. Sands

severe its nature.” Wainwright, 491 F.2d 417 (en banc). sought injunctive by plain- relief provi- tiffs would not conflict with this II. sion, beyond and would not extend Dade County. By establishing limits THE FACTS corporal punishment, administration of findings As to district court’s inferentially permits the statute local facts, appellate treatment of review is punish- school boards to such authorize governed by applicable one rule to Count ment. This does not mandate statute applicable Three and a different rule punishment, require corporal however, to Counts One have here and Two. We compel nor does it local school boards sep tofore indicated that there were two regulations adopt providing orders of Count Three arate dismissal. fact, the statute would 41(b), Rule F.R. was dismissed under prevent prohibit- a local from board ground upon the “on the Civ.P. ing corporal punishment in certain plaintiff has facts and law grade throughout county sys- levels right to relief.” As autho shown no tem. rule, rized district court County adopt The Dade School Board judgment rendered on the merits effect against policy affirmatively ed a autho findings and made rized the use of provided 52(a). in Rule Emer See imple schools. It is the Farmer, Electric son Co. Cir. policy, prac mentation of this and Wright 1082, 1086; Miller, & developed tices have which Dade 2371; Federal Practice Procedure & § County authority poli under the of this Moore’s Federal Practice 41.13[4]. ¶ cy, particularly junior high in one The district court’s order of dismissal as plaintiffs school, en which the seek to recog correctly to Counts One and Two Although regulation join. authorizing that, nized “The issue now before corporal punishment is consistent with evidence, Court is whether the viewed 232.27, injunction re F.S. straining F.S.A. favorably plaintiffs most is sufficient defendants, the named their permit jury to return a verdict for agents employees and from the use of either of the First or both corporal punishment require would not issue, On that our Second Counts.” statute, invalidation of Florida sufficiency review of the of the evidence directly any county and would not affect governed by the familiar rule enunci County. than Florida other Dade Boeing Company Shipman, ated in Three, therefore, Count comes within F.2d 374-375. challenged regula the rule where a order of to Count its dismissal as policy only import, tion or is of local Three, listed its “Find- district court single judge must hear the case. Board ings of Fact” as follows: Regents University Sys of Texas County public Project, “1. The Dade school Left tem New Education largest system is the sixth in the na- L. U.S. S.Ct. 12,500 tion, approximately 697; Flowers, 1967, with teach- Moody v. Ed.2d personnel oper- ers and administrative 18 L.Ed.2d

ating authorized, 237 schools with a total student ishment is nor formal population 242,000. procedural requirements in excess of which must punishment may be observed before Corporal punishment “2. is one of administered. variety employed of measures pu- for the correction of “5. There a rather has been wide- pil preservation behavior spread failure to adhere to School Other alternative measures in order. regarding policy corporal pun- Board range parent use from and student punished Teachers have ishment. stu- conferences, guidance the use of consulting dents without first psychologists, counselors and where respective principals. their More suspension available, expulsion. blows have been administered to stu- Corporal punishment is not utilized at policy. dents than authorized County. all in sixteen schools Dade Teachers have administered Statutory authority “3. only punishment with the student or corporal punishment use of in Florida present. exception With the Statutes, 232.27, is found in Florida § cases, punishments of a few ad- which deals with the duties of teach- ministered been unremarkable in pupils, pro- ers control physical severity. “ * * * vides that a teacher shall “The instances of which not inflict consulting before severe, could be characterized as ac- principal or teacher in cepting testimony * * the students’ charge of the school credible, place high junior took in one policy Defendant Board’s School as it school.” existed when suit was filed is requires prin- more restrictive. It agree accept We with and the ex- cipal necessity to determine the pressed findings of the district court. corporal punishment, designate and to However, findings those are somewhat time, place person to adminis- meager considering the voluminous evi- punishment, ter ways and in other presented case, dence in this and it is limits the circumstances in which the punishment may appropriate therefore for us to detail policy be used. The fully testimony more what and other November, 1971, was revised in and evidence reveals. supplemented regula- with detailed Policy School Board tions, prescribe additional limi- expressly authorizes the use of cor nature, tations extent and poral punishment, prescribes permissible punish- circumstances of procedures ment. to be followed where a teach published “4. There er is no feels that schedule corporal of pun- infractions for necessary.5 which During the 1970-71 school During year, Policy tlie 1970-71 appears corporal school punishment it that is provided part likely relevant necessary, as follows: to become the teacher Corporal “II. Punishment: principal. prin- Punishment must confer with the The general cipal “Punishment in- necessity the sense is the will determine the for cor- flicting penalty poral punishment of a designate time, for an offense. Cor- and the poral punishment generally applied place, person is and the to administer said body physical punishment. the of the any case, offender or is the student punishment opposed clearly as forms of to other should understand the seriousness punishment and is as pun- administered of tlie offense and reason for the the changing means of the behavior of the ishment. period Care should be taken that the important Therefore, student. to an- of time between the offense and alyze goal punishment whether long or not will be ac- the is not so as to cause complished by anxiety pupil. punish- such action. undue in the The “Corporal punishment may be in the used ment must be administered kindness seeking coop- presence case adult, where other means of and in the of another eration from the student have failed. If time and under conditions not calculated among provided, found, Policy other court year, that teachers sometimes ad- punishment corporal punishment adminis- things, ministered that the with presence only present, the student or “in kindness and tered required instru- policy that “no and whereas school board the of another adult” produce presence during will used that of the ment shall be another adult ad- student, injury corporal punishment. no ministration of body part the waist or be- above of County In at least 16 of the 231 Dade may be low knees struck.” schools, punishment corporal not pun corporal that shows The evidence year.9 utilized the 1970-71 school during County the rele ishment suggests The evidence that in most of primarily, if period vant consisted corporal those schools which did use Paddling entirely, in “paddling.”6 punishment, punishment was nor striking a flat the student with volves mally licks, limited to one or two or usually the but wooden instrument7 many five, ap no sometimes as as recognized The district tocks. parent physical injury to the children rather “a the evidence revealed punished. Quoting who were from the widespread to School to adhere failure findings fact, district “The court’s in-' corporal punish regarding policy Board punishment stances of which could be * Many * * witnesses student ment.” characterized as severe took gave testimony which indicated place junior high in one school.” This did not in' various schools their teachers High school was Charles R. Drew Junior principal of the always with the consult School, and the occurrences there merit administering school before description. non-princi A number experiences of individual students pals inter in their answers admitted at Drew reveal nature “regularly rogations they did utilized at this principal routinely” confer with educational institution. On October paddling Student tes before students.8 including students, indicated, a number of timony punishment up and the instruments are re- to ridicule hold the student “paddles” ferred to and “boards.” shame. corporal punish- administering “In prescribed during 7. Paddle size was not ment, used shall be no instrument paddles probably 1970-71. within Most were injury produce physical the stu- will range indicated the November body dent, part above no Policy “The revision 5144: instrument struck. the knees he or below waist must be of and be no more than two wood administering person long feet nor thick more than one-lialf inch personal his must realize own and no more four inches wide.” than corpo- being given if the student liabilities By stipulation 10, 1971, injured. dated October physically ral parties agreed that, number “The total “Corporal punishment ad- never should persons Sys- per- with the Dade School whom school ministered to student tem, principals, psychological other than school who ad- to be under sonnel know ministered but did not been there has unless medical treatment regularly routinely prin- psycholo- confer with pre-conference with the school cipal they em- physician.” gist ployed commencing during year the school months almost ten On November September (fifty-nine) prior 1970 was 59 filed, Policy after this action was (R. 1435) paddling.” stipulation each This extensively dis- As indicated revised. questionnaires prepared by was on based court, “detailed included revision trict completed by and school officials prescribe regulations, limi- additional which employees. and nature, extent and circum- tations punishment.” permissible stances 9. least 10 did admin- At of these schools not “paddling” recognize a matter is a ister as 6. the term We policy. stipulation refer of October in their brief See art. Plaintiffs word of finding “beating.” Similarly, 2. 1972. Also see district court to “blows,” and in of “licks” terms described Ingraham, amined on when re fourteen-year-old James October he James leaving treatment, hospital for and in turned to the plaintiff, were slow named when on October 14. This doctor described stage auditorium the school injury patient’s “The James’ subjective A number follows: a teacher. to do so asked signs injury girls included boys in this inci involved [sic] and approximately in principal’s office six inches hematoma taken to dent were swollen, claiming protested, diameter which was tender and paddled. James and pad- Additionally, purplish innocent, in color. there to be refused and he was oozing Wright, I, principal fluid from the was serousness or J. died. Willie 14, eight'days Deli- Lemmie hematoma.” On October for the assistance called charge paddling, principal indicated after the this doctor ford, the assistant administration, Barnes, “for an that at home James should rest and Solomon principal. Barnes and next hours.” James testified that assistant painful arms and was even to lie on his back his held Deliford James struggling, days following him, paddling, legs placed face and and comfortably Wright he could not for adminis sit a table. down across 149). twenty (Tr. three licks.10 After about weeks tered least at Wright paddling, to wait out told James Andrews, named Roosevelt the other he if I move side his office—“he said paddled plaintiff, he testified that was my going me on the side of to bust year at Drew about ten times in one (Tr. 144), home James went head” — (Tr. 273). paddled a number He was anyway. physical education teachers times his “dressing being for or for not late home, inju At examined his James out.” according ; him, ries to his backside was tight purple it was and “black occasion, stopped a teacher On one (Tr. 146) hot.” mother took James’ possibly Roosevelt, told him he could not examining hospital. The him to a local get and then to his next class time diagnosed the cause of James’ doctor told Roos- took him to Barnes Barnes. pain “The be a “hematoma.” area go num- with a evelt to into a bathroom large size, pain * * allegedly was tender and boys. Barnes ber other * temperature of the skin boys up the uri- lined about 15 According was above normal area of the hematoma paddled nals and them. sign hurt, of inflammation often which is a Roosevelt, must have be- the blows doc boys “hollering, associated with hematoma.” cause some of the cry, laxative, prescribed pain pills, a everything tor sleeping pills prayed, else” [sic] packs, left, boys advised (Tr. 294). and ice the other After stay home for at least a James to he told Barnes that would Roosevelt (Tr. 148). ex- doctor week A different had if the teacher have made it to class explanation In- 10. James The district found that his refused to listen to his occasion, graham licks with wooden “received 20 had been stolen. On another socks produced painful having paddle, paddled and serious tennis Roosevelt 1561) (R. explain shoes, although hematoma on his buttocks.” he tried to his shoes had stolen teacher someone Stipulated testimony Mi- 11. of Dr. Fernando get because new ones and that he could not (R. 1557). lanes family them. his not afford could Reginald Bloom, student, testified Another testimony Stipulated Gamez 12. of Dr. Carlos gym having paddled that he was (R. 1558). shorts, although stolen. had been his shorts and other schools Other at Drew prescription signed Exhibit form physical paddlings educa- testified class, by Dr. Gamez. dressing as not tion for such offenses times, inappropriate talking out, lateness, “Dressing putting out” refers pad- These proper misconduct. and other minor education class. uniform for normally dlings paddled or two or According Roosevelt, of one consisted he was once having licks. sometimes three His teacher white socks. for not stopped told Roosevelt Donald him. Barnes Thomas testified that Barnes Then, paddle carried over. Roosevelt refused. a with him bend when he according Roosevelt, Barnes walked around the Deli- school and that ford carried brass Donald knuckles.16 against thing, “pushed the urinate me punish further testified to a scheme of he me bowl, snatched and then ment used in the auditorium. The seats me when he hit it and that’s around to were numbered and each student had an me on the He first hit back- first. assigned misbehaved, seat. If a student up he and then I stand against sides and put his number was on the board. Then wall, pushed the bathroom me Barnes would come into auditorium bathroom, things part the them —that * * * paddle and the students whose numbers the toi- the wall lets, Between asking listed, were without had who against pushed and he me eight done what. About five to students then he me from back snatched paddled every day, generally re hit and he on there that’s when me ceiving four or five licks or each. so my leg, arm, my my me on then hit paddled Donald claimed he was my neck, right and then across back these circumstances between and 10 here.” in the back student, Nicky times. Another Wil (Tr. 295.) treatment, Incensed over his liams, sys paddled who was under this complained Wright, Roosevelt tem, complained that Barnes would not Wright support Barnes, his seemed to any explanations. listen to co-administrator. Lee, paddled Daniel who was “lots of time, Wright paddled a later Roos At (Tr. Drew, 463) times” described how breakage evelt, apparently on one occasion Barnes a had number of class, glasses al some sheet metal line, holding “in a onto the though it was not his Roosevelt claimed already them,”17 chair, paddling and during fault. Roosevelt testified “get asked him to come over little and hit, paddling, and his wrist was 480-481.) piece (Tr. of the board.” swelling painful occurred. Roose done, Daniel he asked had and what see a his wrist. velt went to doctor about grabbed allegedly Barnes him and tried gave pain pills and ad doctor him ensu him on the chair. throw something keep cold his him to on vised ing confusion, on Barnes hit Daniel For a week his wrist wrist.15 about hand four or five times.18 The hand hurt, use his arm. and he couldnot prescribed, take the extra Everett, mother, Mrs. 15. Willie Roosevelt’s given. licks were Daniel Lee testified that description supported liis Roosevelt’s group occasion, he on one Deliford told injury. wrist you punishing go, you that, “If if let let Andrews, Ingraham, you go, go, every Roosevelt time let chair James the chair Bloom, Ray Reginald you Lee, Jones Daniel that’s licks. If count fifteen more Nicky chair, that Barnes you testified Williams also three and don’t be back down (Tr. paddle the school. him around with see carried that’s fifteen more licks.” Larry Alphonse Everett, 477.) Hicks Mrs. brass school with saw Barnes Jones following cross-examination, ex- 18. On Reginald saw he Bloom claimed knuckles. change apparent occurred: knuckles. with brass Deliford visibility telling you that Mr. the Court “Q. Are paddle brass you deliberately hit atmosphere Barnes hauled off have affected knuckles on the hand? at Drew. sir; Yes, throw “A. because he tried to chair, know, and other wit- you Lee Daniel As described and I me paddled at nesses, grabbed get to be about student so he wouldn’t over there and required over to bend was sometimes hand Drew me hit me on the hands on his chair with back of a board. number you A trying chair. rear of the seat on the front to hit “Q. He end, let if the student wasn’t he? testified witnesses “A. No. failed go, fashion some other chair throwing hitting him, him on the ta- the bone was—it swelled and hurt “and going to ble.” the bone was come seems like (Tr. 481), mother took out” so Daniel’s (Tr. 517.) boy cried out that X-ray. hospital Ac-

him to the for an men had broken his hand and two weeks cording Daniel, right in his to a bone bandage later back to school with a came Court, observ- hand was fractured. The Reginald testified on his hand. ing hand, that “It seems stated Daniel’s chewing boys paddled that Barnes portion disfigured, of his to be to me tucking gum and for not their shirt- right enlarged de- knuckle some tails. gree.” that his hand Daniel claimed Ray boy A. Jones and a named Carson hurt, tried to if he still and swelled brought at Drew were office use it. hooky.” policeman “playing Deli- gave boy ford and Barnes each about Reginald that he Bloom testified was causing cry. fifty licks, boys both paddled Drew about One 15 times. girls during present pun- Two were Reginald paddled about time Deliford boys pad- after ishment and making fifty allegedly licks for an ob- died, girls received five licks about Reginald phone scene call a teacher. Ray each. testified that he was unable time that he had not claimed comfortably to sit for about two weeks. call, boy later another con- made and grandmother Ray’s stated that she when Reginald making it. fessed testified “big Ray’s buttocks, looked at she saw on Deliford cross-examination places.” swollen hitting to be him hard as he seemed could, paddling Rodney and that after Williams testified be go over, foreign he had to home he wipe because cause he wanted to some couldn’t sit down. A doctor examined matter off his seat in the be auditorium Reginald’s prescribed down, sitting put buttocks and ice fore his number was Reginald packs. painful found it to sit on the took him board and Barnes later Reginald’s down thought for about three weeks. he his office. Because he mother testified that her innocent, Rodney son’s buttocks was to “hook refused right across,” were “black and blue up.”19 Rodney swol- testified that Barnes len, and sore. She testified further that then hit him five ten on his times applied packs she ice to his paddle, buttocks for head then and back with a and days about three or more after he was hit him with a Rod belt. side of paddled. Reginald Another ney’s operation time and swelled, head and boys some prin- other proved necessary were called lump into the to remove a cipal’s fighting office and developed accused of on some sort which had where way home from Rodney Rodney school. When the had been struck. boys paddled, refused Deliford, to be week, out of school for felt about a Wright Barnes allegedly operation memory manhan- affected his boys: dled one of the thinking. time, Another after Deli- given licks, Rodney’s ford had him ten grabbed “Mr. Deliford him and Mr. up chest hurt and he threw “blood and Barnes and Mr. Deliford started everything” (Tr. 601). Perhaps because jumping him, throwing him around he had asthma and heart trouble some the room in the office. sort, Rodney pad also reacted to this Wright, got “Then Mr. he dling by “shaking Mr. all over” “trem Deliford and Mr. Barnes and bling,” started required treatment at a local throwing boy room, around the hospital. occasion, paddling On a later you saying deliberately you “Q. Are position he standing hit 19. To assume a in back of on the hand? chair, chair, with hands on the seat of the Yes, “A. sir. preparation being paddled. your up?

“Q. That has made hand swell Yes, (Tr. 487-488.) “A. sir.” Rodney time, Wright again trying caused when Barnes was to find 604). whistling, cough up (Tr. out who had been blood he took a' methodically class of 30-50 students and Larry physical ed- testified that Jones began paddle each student in an at- paddled him at Drew ucation teachers tempt to locate the one who had been pad- about ten and that Deliford times whistling. After about half of class “heap him ten. died a of times”—about paddled, had been some students told Larry ten licks. times received Several whistled, Barnes who had the rest occasion, Larry one refused On when spared. of the class was re- Nathaniel perhaps [Deliford, paddled, “he ór ceived ten licks on another occasion hitting me to start Barnes] had name, along others, when his with six stick, my put knots on and he two was written on the board the audito- (Tr. 651). head” rium. that, on her Dean testified Janice day Drew, she did know first at III. assigned in the auditorium seats about CRUEL AND UNUSUAL PUNISH- result, wrong place. a As sat MENT gave five Another her licks. Deliford Eighth office, prohib time, Amendment to the was sent when Janice its licks, the infliction appar- of “cruel and unusual fifteen Barnes administered punishment.” applicable knowledge alleged It ently to the of without through process allegedly states misconduct, theory the due ex- clause of a he the Fourteenth plained Amendment. “He said he knew Robinson as follows: California, 1962, v. wrong 660, something 370 U.S. S. we 82 had done 1417, 758; Ct. (Tr. 819). 8 L.Ed.2d Furman v. there.” have been wouldn’t n Georgia, 1973, 238, 408 U.S. 92 S.Ct. during Sharpe testified that Preston 2726, 33 L.Ed.2d 346. paddled years Drew, Deliford four time Preston ten times. him about One A number of federal courts having paddled his shirttail was for held of hanging time, when he Another out. per school children is not se a violation licks, supposed Pres- ten was to receive against of prohibition the constitutional licks for not ton five extra received cruel and unusual v.Ware reassuming quickly paddling position a Estes, N.D.Tex.1971, F.Supp. licks, enough and three after one per aff’d curiam 5 Cir. allowing the chair to extra licks for 1360; Whatley v. Pike Board and hit a door. move Education, N.D.Ga.1971, C.A. (three-judge court); during v. Glaser testified that Nathaniel Evans Marietta, W.D.Pa.1972, F.Supp. paddled year Drew, he four one was typ- Sims v. Board of of In occasion, Education times. one when On dependent gave ing noisy, School Dist. D.N.M. each of No. class Barnes was F.Supp. agree 678.20 We licks. Another fifteen students five unpersuasive. approach Gonyaw Gray, D.Vt.1973, We find this It 361 F. succinctly ground Supp. 366, 368, was stated Vol. Harv.Civ. for dismissal as one Rights Civ.Lib.L.Rev., Corporal brought parents Punish an action — Schools, p. punishment, subjected corporal ment the Public 585 n. 24: the court Trop Dulles, “In 94-100 that, not offend stated “This statute does (1958), protection [78 630] S.Ct. L.Ed.2d unusual cruel Court, applying eighth Supreme Eighth Amend secured punishments provides ment, amendment pursuant to all inflicted a limi since amendment ‘penal laws,’ imposed two against penalties forth criminal set tation * * * * penal. meaning plaintiff tests to determine neither Since behavior. imposition First, punished there must be criminal an offense which ‘disability purpose punishment.’ Eighth nature, for the Amendment does 590], Second, assigned there [78 Id. at 96 proscribe de S.Ct. the conduct prescription ‘consequence omitted.) (Citations must be the fendants.” though Eighth present time Amend at the scop^ admittedly per the ment is not ruled violative of “static” se cannot meaning “evolving Eighth must moderate draw its from Amendment. Mild or decency,” Trop Dulles, discipli standards use 86, 101, elementary nary or sec measure in an significant only ondary normally L.Ed.2d will involve large pain transitory nature number states continue to au of a non-intense thorize the use of intense or sustained moderate and will not cause punishment,23 injury. corporal punish suffering permanent For and that although might object many reason, many apparently ment is still utilized in this systems. variety punishment corporal a of school Faced this evi to punishment per apparently reasons, se dence of cannot what is considered such appropriate by people, presently in “excessive” the be held to be American suggest sense,21 “degrading” would or so loath to that at this constitutional be corporal “dignity” punishment “unaccepta to time is of school children Eighth contemporary society,” Al ble to Furman v. violate the Amendment.22 by mun, Rehnquist). one fails abide Powell and think that will befall regulatory who We punishments provisions by . .’ . . Id. at 97 devised officials are school similarly subject Eighth [78 590]. S.Ct. Amendment scru- tiny. opinion Paraphrasing in In re by punishment “Infliction of Gault, supra, 47, 1428, 387 at 87 U.S. S.Ct. public personnel school meets both tests.” surprising Eighth it would indeed be if the punishment Corporal is of schoolchildren protected Amendment hardened criminals word, “punishment” every in sense of not school children. “criminal” “civil.” whether it is called Vermont, 1892, 323, 21. O’Neil v. Gault, 1967, 1, 17, 144 U.S. In re 87 Cf. 387 U.S. S. 339, 693, (Field, J., 1428, punish 12 Corporal S.Ct. 36 L.Ed. 450 Ct. 18 L.Ed.2d 527. dissenting) ; supra, by punish Georgia, Furman v. 408 ment is used state officials to stu 279-280, (Brennan, during U.S. at 92 S.Ct. 2726 dents for misbehavior committed at Jr., concurring). school, statutorily at tendance prescribed punishments and resembles for crimes its Georgia, supra, 22. Furman v. 408 271- U.S. purposes and effects. Some of the offenses 273, (Brennan, Jr., 92 2726 S.Ct. concur- punished by corporal punishment ring) ; Trop fact Dulles, 1958, 86, v. 356 U.S. essentially nature, 100, criminal as as 590, such 78 S.Ct. L.Ed.2d 630. property. saults or destruction doubt of No According Report ato of the Task Force reasons, for these Lave most courts which Corporal published by on Punishment in 1972 constitutionality considered the Association, p. 26, the National Education at punishment punish have assumed that such by plaintiffs, corporal punish submitted may eighth ment under amend evaluated by Jersey ment is banned state law New especially ment standards. v. See Nelson Massachusetts, state school Heyne, 1974, 352, 7 Cir. 491 F.2d and Bram policy Maryland. banned, board It is also Wilson, 1974, let v. In Cir. 495 F.2d 714. according report, in a number said, liramlet “an court excessive large However, p. cities. 24 of the re physical punishment public amount of [in port, specifically it is stated that 13 states setting] could be held be cruel and permit corporal punishment, while in other prohibited.” unusual and therefore The given states the teacher is the same authori stated, designation court also “the con ty parent discipline child, as the or is ‘punishment’ simply duct as other than simply authorized maintain order and dis label of convenience and will not obviate an cipline Although situ classroom. eighth inquiry. amendment Knecht v. Gill changed ation 1972, somewhat since (8th 1973).” man, 488 F.2d 1136 Cir. apparently Bishop, In F.2d Jackson large school children is still allowed in Wright McMann, jurisdictions. Cir. number of This contrasts with impermissible courts found Bishop, the circumstances in Jackson cruelty “punishments” in offensive devised case, 404 F.2d 571. by prison officials, mem- and at least some where the court held that the use Supreme bers of the edged have acknowl- Court strap prisons in the Arkansas violated propriety findings. of these See Eighth Amendment, took into con Georgia, 1972, Furman v. only sideration the fact two states still (Chief 92 S.Ct. 33 L.Ed.2d 346 Justice permitted strap. F. the use of the See 404 Burger joined dissenting, Black- Justices 2d at 580. requires 277-279, 92 It the use of an instrument supra, Georgia, concurring), possible physical J., to eliminate (Brennan, “calculated injury.” by popular must be ad- senti it “abhored” “posteriorly,” Georgia, supra, and “under no 408 U. ministered ment, Furman v. J., a student struck (Marshall, circumstances shall 92 S.Ct. S. at the head or concurring). about shoulders.” provision as to former specific policies Examining the psychological treatment is re- or medical promulgated Emphasis tained. consideration Board, we find the Dade School “nature and the misconduct” Eighth violation them no offense,” “seriousness of the re- nothing policies do These Amendment. recording quirement the “infraction moder mild or more than authorize punishment,” which caused the rules Policy ate use such make clear that is not August 5, 1970,25 5144, revised effective arbitrarily to be inflicted or without punishment must be provides This cause. revision is obnoxious to in kindness.” “[N]o “in administered Eighth Amendment; represents the it produce used that will shall strument be through specific to insure effort student, no injury physical to the guidelines corporal punishment in that body or be part above the the waist of go County beyond “the Dade will not Further, may be struck.” low the knees physi- moderate of or use force never punishment be corporal “should contact, necessary cal be to as sheool whom a student administered to discipline maintain and to enforce school psychologi personnel to under know be order and rules.” unless there treatment cal or medical Although Policy 5144 does not on its pre-conference with has been Eighth with Amend face conflict physician.” psychologist school or ment, necessary inquire it is to further extensively Policy was revised pun and to determine whether 3, 1971. This revi- November effective County applied ishment as in the Dade imposes specific num- limits on the sion Eighth offends Amendment schools of five maximum ber of strokes —a fact, im standards. deem it more elementary children for school strokes portant corporal punish to know how maximum of strokes for actually and a seven than to ment is administered regulations.26 junior high know the relevant rules or children. and senior school Policy again Georgia 25. 5144 was Decem- 24. in em- revised The dissenters Furman 9, 1970, phasized “Capital punishment ber there no but substantive the fact that policy changes parts dealing States, by in those of the in is authorized statute corporal punishment. Columbia, in of the federal District crimes” courts the commission certain opinion Judge (now Justice) (408 2801), The at that U.S. at S.Ct. “ juries Bishop, acting in the com- Blackmun Jackson v. as ‘the conscience of ” (408 2726), munity’ finds that U.S. at S.Ct. punishment prisons impose capital ade- in is difficult continued to See quately by regulations 385-391, (Burger, rules : at control or 92 S.Ct. 2726 U.S. sug- J., dissenting). rule are or C. “We not convinced that Brennan Justice strap, acceptability regulation gests, however, as to the use how- “The that sincerely measured, by seriously punishment conceived and is not its ever drawn, severe prevent successfully might availability, abuse. will become so offensive * * * society inflicted, in often its this area seem as never to be Rules * * * Regulations go at unobserved. use.” at 92 S.Ct. U.S. * * * Corporal capital punishment easily circumvented. evidence showed that easily actually only rarely punishment subject imposed in re- is to abuse had been unscrupulous. years. at n. sadistic and cent hands See * * * suggest power punish granted do is 2726. The Where corporal punishment persons has become so of- in lower of administrative that levels general authority, longer use in in an inherent natural fensive that it is no there is difficulty many enforcing limitations States. Eighth presented, the evidence a violation of the [of From Amend- say practice of point, the actual At we cannot that ment].” another the district County court stated the Dade that “The evidence has system violates school as whole shown that in con- Eighth However, cept, we con or as Amendment. authorized the School Board, throughout plaintiffs’ applied sys- as to evidence clude that as corpo pattern, usage tem, practice arbitrary, capricious, is unreasona- High wholly punishment legitimate Junior ral Drew ble or unrelated purpose determining the trial court School was such state its educa- dismissing policy.” Apparently erred in Count Three tional the district F.R.Civ.P., 41(b), erred and also Rule felt court that a constitutional violation dismissing only and Two. Counts One could shown evidence suffi- prove employment cient of cruel and whether the district It unclear is punishment throughout unusual en- directly considered whether court County system. tire Dade pattern viola- Drew Eighth approach tive of Amendment. We think such an view, found that “The instances In our would incorrect. a vio Eighth could be character- lation Amendment can oc accepting single severe, ized as the students’ cur at the level of a educational credible, testimony place in took one as institution. The record this case junior high no doubt school.” demonstrates There individual schools great independence reference to In its is a Drew. development law, policy conclusions de- district court of a “Considering system corporal punishment.27 clared that a the as to it This makes ** * showing whole, appropriate there no is to examine whether au- the ** * power. argu- punishment that no a There can be that only total ban on this is the inap- whipping ment that excessive an or effective control: propriate whipping great corporal punishment theoretically manner of or too “While frequency whipping brutal, or the use of studded need not be is there no assurance straps overlong moderately or all constitute it will cruel that be or re inflicted punishment. sponsibly. whipping anger, especially unusual But if were the heat of authorized, provoked any by abuse, one, personal to be if how does some court, point legal likely ascertain the dis- teachers exceed bounds. which would to tinguish permissible Moreover, the if limited from that which is unlikely permitted, cruel and unusual?” be controls would “ * * * prevent difficulty ‘really we have the unmistakable kind of no in reaching the in conclusion satisfaction which teachers feel that use of the some strap penitentiaries applying A of Arkansas the rattan.19 total ban of this is punishment which, provide punishment in far this last would more effec third of the century, Eighth 20th Amendment; runs afoul of the control.20 tive strap’s use, irrespec- Kozol, Early Age that 19. at an J. Death any precautionary (1967). tive of conditions which 16-17 imposed, contemporary offends con- forbidding corporal pun 20. A rule all cepts decency dignity and human probably would ishment receive more com precepts profess of civilization which we pliance principles than the law be common * * possess likely parties all cause involved are more problems suggested The any of control in Jack- aware to be of it and conscious of vio by likely son must also exist to some extent in This lation. would reinforced schools, although perhaps degree. violator, convicting to a lesser the added case of by especially holding It is simply for this reason that we are the school official involv contempt’of order, concerned with the actual administration of in in ed court where junctive in the Dade relief is obtained.” adequate Harv.Civ.Rights Civ.Lib.L.Rev., Corporal schools. If found we that controls — exist, established, Schools, p. did not or could not be Punishment 585. Public adopting would be forced to consider remedy Jackson, injunc- namely, by system developed used in 27. This reflected against any corporal punishment. Drew, by tion use of fact that at least well as prove That result must ensue if the controls sixteen schools have discontinued the use of inadequate. cogently argued , punishment. It has been by injuries vari system of The imposed sustained at Drew thorities Eighth demonstrate that ous students at Drew punishment violative punishment meted out at this school Amendment.28 severe, likely and of a nature was often ap presented, evidence From psychologi to cause serious Wright, principal; Deli- pears damage.30 paddlings cal evidence principal; ford, assistant relatively offenses, minor sometimes principal, Barnes, all an assistant any opportunity for the student without agreed explicitly implicitly either happened, explain what show regime upon impose the stu a harsh arbitrary. punishment was sometimes dramatically This il dents at Drew. frequency of the use by cooperation in admin lustrated their punishment suggests oppressive real istering corporal punishment to James ness. Ingraham. is further demonstrated It other instances two all where punishment Whether is cruel present dur three administrators were and unusual in a constitutional sense de ing pad paddlings, or were aware of pends significant degree upon to a dlings they after occurred.29 Consider surrounding particu circumstances ing whole, the evidence as it would be Vermont, lar O’Neil incredible find that one of these 323, 337, three individuals was unaware of the J., (Field, dissenting); L.Ed. 450 Rob policy pursued the other California, supra; inson v. Furman v. regime Thus, two. Junior Drew supra.31 Georgia, High fact a School imposed present aged established and case, In the children authority. through those punished twelve fifteen were analogous Eighth timony case, Amendment cases sit- in this this Court believes that support approach. corporal punishment may In Nelson v. uations Heyne, be administered in way psychological the Sev- such a the resultant enth concluded that Circuit harm to some students will be substantial deciding disciplinary lasting.” heat- did ings err Boys at the Indiana School constituted Vermont, In O'Neil v. Justice Field dis- punishment. This school cruel and unusual opined Eighth sent that Amend- while juveniles. population In had a 400 about usually punishments applied ment was to Wright McMann, 1967, 2 v. torture, which inflicted and were at- which allega- 519, held that the Second Circuit pain suffering, tended acute and had imposed punishments at a that tions particular applicability: a wider prison violated York New State directed, only against “The inhibition is Eighth Amendment should not been punishments mentioned, of the character 'dismissed. against punishments by all their but which example, after Roosevelt Andrews 29. For severity length greatly excessive bathroom, by paddled a he was complained Barnes charged. disproportioned to the offences Wright Deliford was while inhibition The whole complained present, later also his father and * * 339-340, is excessive U.S. Wright. Barnes, a later On and Deliford 12 S.Ct. 699. alleg- paddled occasion, Wright and Andrews Georgia, in Furman v. Justice Marshall edly and Deliford him the wrist while hit per 2726, argues 324-327, at S.Ct. Reginald present. testi- Bloom Barnes suasively approach Field’s that Justice Deliford, Wright man- Barnes and fied that adopted by cases, later the Court includ suspected fight- boy and handled struck ing 1903, 126, Fleming, Howard v. 191 U.S. ing. Ray and Deliford Jones testified 49, 121; 48 L.Ed. Weems v. United S.Ct. present an- and when he Barnes were both States, 1910, 349, 544, 217 U.S. 30 S.Ct. each, fifty and licks other student received rel. L.Ed. Louisiana ex Francis Res giv- took two turns that ing 374, weber, administrators 329 U.S. 67 S.Ct. Larry that Del- Jones testified the licks. Dulles, Trop 356 U. L.Ed. and present when and Barnes were both iford 590, 2 In L.Ed.2d Rob S. 78 S.Ct. my head.” he knots on received “two California, inson v. L.Ed.2d held Court the order of court stated The district having that, addiction to nar- that a statute which made heard the tes- “After dismissal alleged corporal pun misconduct at school. The evidence shows that instances, only variety most this misconduct did ishment is one of a of mea physical any involve harm to pun other indi- sures available to school officials to damage property. vidual or Some ish students and to correct behavior. they engaged court, students claim never in As found the district “alterna given all, misconduct but were not range parent at tive measures in use from adequate opportunity to inno- conferences, guid show their and student use ignored they cence or were tempted psychologists, when at- ance counselors and where explain why they available, suspension did not de- expulsion.” punishment. Taking serve age into consideration the individuals, the nature of misconduct system punishment The utilized at involved, physical psy- the risk of relatively Drew resulted in a number of chological damage, availability and the injuries, clearly serious and thus in- disciplinary measures, of alternative significant physical volved a risk of system punishment conclude that the damage Corporal punish- to the child. at Drew was “excessive” in a constitu- psychological ment creates a risk of severity tional sense. pad- of the damage. Kester, Dr. Scott an assistant dlings system paddling and the professor psychology of educational Drew, generally, Eighth violated the University Miami, testified that requirement Amendment punish- damage could greatly disproportionate ment not be development by engendering child’s anxi- charged. the offenses Our review ety, frustration, hostility, evidence has further convinced us that causing pathological sheer withdrawal or administered at Drew hatred of the school environment. He degrading to the children in- at that further commented that since children stitution. model their adults, behavior after corporally punished may child who is Our result is not inconsistent physical learn from this that Estes, force is an with supra, Ware and other appropriate way in involving which to handle con- cases flicts. emphasized Dr. Kester case, that the children. In the Ware there was corporally child punished who is often evidence of abuse some of the teach aggressive becomes more and more hos- district, ers the Dallas school prior than punishment. tile he was to his there is no indication that the codes misdemeanor system; provided, inflicted a cruel however, such unusual person may, scope Court stated that within em- of his penalty provided by ninety ployment, apply use and such amounts statute — days not, abstract, cruel and un- —was restraint be reasonable However, usual. necessary: Court classified nar- illness, that, cotics addiction as an and noted “1) protect himself, pupil or others day prison “Even one would abe cruel physical injury; from punishment and unusual for the ‘crime’ of “2) possession weapon to obtain of a or having 667, a common cold.” dangerous upon object person other or S.Ct. 1421. pupil; within the control of a “3) protect property harm; from serious 1972, a Task Force the National In and such restraint shall be con- suggested Education Association a number of strued to constitute bodily pain or punish- alternatives to the use of meaning within the and intend- proposed Outlawing ment and a “Model Law resolution, Every ment of this section. Corporal Punishment”: bylaw, rule, ordinance, au- or other act or “Corporal thority permitting authorizing Pupils or Punishment of person employed punishment engaged by any bodily pain “No or or be inflicted upon system pupil state, attending educational a educa- within this a school or public private, whether tional shall shall inflict or institution be void.” Report Corporal cause inflicted See of The Task Force on bodily pain upon attending any Association, pupil Punishment, a National Education p. school or 29-A. institution within such education op must, course, afforded an system aas ants punishment evidence, school, ap portunity to offer the district particular whole, any severity inor may require the no court find reason and arbitrariness proached the Also, plaintiffs a to offer their evidence second developed system Drew. proceed may with case time. though It in one case noted that in Ware the court injured, severely motion for dismissal defendants’ was a student where Deposit responsible Federal been denied. had See principal the assistant 1940, Mason, Corp. v. Cir. suspended Insurance du injury from his Gulbenkian, 548; no F.2d Gulbenkian There months. for several ties 1945, 173; 5 Moore Cir. ease 2 in this from the record indication ¶ 41.13[2], in the rele were made efforts that period to moder to control or time vant and Two dismissal One Counts punishment estab ate must fur be reversed and remanded for by Wright, Barnes.33 Deliford and lished proceedings ther consistent with Heyne, In Nelson opinion. of the record Our examination Circuit n. Seventh F.2d us that convinces there was sufficient that, appears law to be well “The states Ingraham produced by evidence James juris- federal in both state and settled Roosevelt Andrews to avoid direct not vio- school officials do dictions sys ed verdict. There evidence of a proscriptions Amendment late 8th punishment tem of of the violative and unusual cruel Eighth Amendment. There was further is reasonable where the might jury evidence from which a con added.) (Emphasis moderate.” Ingraham clude that Andrews agreed case, the court with Nelson system. Ingraham’s victims of this scription de paddlings court's conclusion punished, how he was guards at the Indiana administered concerning ex medical evidence Eighth Boys Amend- School violated the injuries, tent justify of his send would ease, in that ment. The relevant facts ing jury. his case to the de Andrews’ pan- by the Seventh Circuit as described scription alleged of Barnes’ assault comparable developed el, to the facts are bathroom, description him in the and his regard to in the district court with Wright paddling by of his his Drew. injured, enough to wrist was avoid plaintiffs’ remand, directed evidence makes verdict. the dis Since the On joinder prima may of violation trict facie case allow the Eighth Amendment at Drew Junior whatever state claims have, High School, of Count the dismissal in accordance con rules cerning pendent complaint jurisdiction. Three of the must be reversed Unit See Gibbs, ed and remanded to the district court Mine Workers v. U. proceedings. defend- further While the S. 86 S.Ct. 16 L.Ed.2d 218.34 Superintendent Whigliam paddling, ham had resisted testified did objec- many inquiry Ingraham find re he there was “an out licks had believed how. specific [Ingraham paddling (Tr. 235). in tion to that incident ceived We note that deprive (Tr. person tent October the area office” of his constitutional 1970] 103). rights Wells, necessary However, Earl a school dis- is not to maintain a civil rights Pape, 1961, administrator, investi- trict who action. Monroe director and Ingraham paddling, gated Pier testified 81 S.Ct. 5 L.Ed.2d Ray, 1967, 547, investigation, formulat- son as a “I 386 U.S. 87 result of his right 1213, Kern, Wright 288; opinion 5 Cir. Mr. had 18 L.Ed.2d Whirl v. an that ed 1969, paddle 234). (Tr. asked 407 F.2d 781 and cases cited therein. to the child” When opinion an as to whether he had formulated appropri- Wright 34. for conceded Counsel defendants almost whether or not Mr. acted Ingraham, argument response ately paddling concerning much oral when the (Tr. 234). inquiry replied, to an he stated : Wells “I think he did” opin- explained his count was he formulated “Your Honor. The class action Wells that equitable Wright’s intent, the ad- tried to matter that was ion on the basis Ingra- on finished court. When the evidence was he not know whether mitted that did 266 Williams, 1972, Assuming One and erts v. 5 Cir. that 456 F.2d Counts 819, modified, jury 827, and F.2d Al for trial 456 to be Two continue though stipulated, issues of we think matter should the unless otherwise initially by and law and clarified dealt with the to the actions fact common court, heard we note that there is some equity must first be

the suit in Eighth question jury’s ren whether Amend verdict and determined negligence.35 and ment extends to One include or both Counts dered on one Westover, Theatres v. Two. Beacon 948, 500, L. 1959, 79 S.Ct. 359 U.S. IV. Wood, 1962, Queen 988; Dairy Ed.2d DUE PROCESS 894, 8 L.Ed. 82 S.Ct. allege 44; Thermo-Stitch, corporal Chemi punish- Inc. v. Plaintiffs that 2d Processing Corp., ment 5 Cir. as administered Cord in Dade Wright Miller, deprives process Federal & F.2d students of due of law and Procedure: Civil violation of § Practice the Fourteenth Amend- They pro- ment. claim that complaint un is somewhat procedural safeguards no vided before allege to clear as whether imposed. They Superintendent Whigham is liable punishment further corporal claim that Ingra damages paddlings to for for process violates due it because is arbi- Paragraph 11 of the ham and Andrews. capricious trary, and unrelated to the Complaint that, “Upon informa states legitimate any achievement of education- Whigham belief, tion and the defendant purpose. al agents employees in his and and/or administrative Policy A. as revised effective hierarchy of the August 5, 1970, provides following knowingly County school have procedural provisions: explicit support lent and their tacit or approval discipline appears to the methods of “If punish- it likely and control herein.” behavorial described necessary, ment to become Action,” Yet neither the “First Cause of princi- teacher must confer relating Ingraham, pal. to nor principal the “Second will determine the Andrews, Action,” relating necessity Cause of punishment, for Whigham. Possibly plain designate time, mentions place per- and the Whigham responsible tiffs mean to hold son to administer said damages negligence any case, on the basis of a the student should under- theory along suggested clearly the lines in Rob- stand the seriousness of the of- tliat, conference, we had a jury, and it was two counts before a and we had a agreed right jury between court and the counsel to a trial had demanded it Feinberg present any those, that Mr. trying could addi- on he had been be- those —if present jury, tional evidence depriva- that he wanted fore had no found federal counts, damage tion, on pendent ju- individual two then he could still my theory go court would take under advisement risdiction have allowed it jury damages motion for directed However, verdict those two in tort. Now, saving counts. he ruled on those two this case there would no Ingraham judicial counts time and labor because would go jury and the of Andrews didn’t rise have to back and new trial proportions. Ingraham again get constitutional all over order to that got licks, bruises, painful point, he had bruis- so he dismissed all three.” ; lickings, es Andrews had 2 or 3 of no judge each; more Williams, than licks 35. Roberts v. F.2d simply decided (Simpson, J., specially concurring) ; there was —that these principles didn’t Nosser, meet four Anderson v. 5 Cir. dignity (en banc), Justice Brennan (Simpson, J., concurring to rise to the taking punishment, specially joined cruel by Gewin, and unusual Coleman, even construing Dyer, all Morgan, Clark, Ingraham Roney, evidence and fa- most vorably plaintiffs. Now, JJ.) ; McKeithen, he said Parker x. then that if he had been tried those F.2d 556 n. 6. punish- concept process prem- for the “The and the reason due is fense upon taken that the ised be fairness and ment. Care should reasonable- light totality the offense in period time between ness of the cir- long existing. punishment not so as cumstances then is The due anxiety pupil.” process unduly in the limitation not undue does cause respon- confine officials who 3, 1971 revision effective November sibility governing. Whether provi- these the substance of retains requires particular constitution that a sions, Under with a few additions. right specific proceeding obtain designate revision, may an principal depends upon complexity of factors. must with whom the teacher individual “It direct the adminis- seems this Court that if there consult who good Also, any purpose is to be served tration log corporal punishment schools, principal must maintain a all long purpose pass- such is would be since instances where hearing ed if formal administered. notice required paddling. before a There argue if Plaintiffs this case deprivation proc- has been no of ‘due corporal punishment per se uncon- ” ess.’ stitutional, still a child has a constitu- right tional punishment. free from unwarranted be agree We with the district In reliance Dixon v. panoply procedures court that the full Alabama, judicial associated process with the cases, later claim that cor- required determining whether to poral punishment County in Dade is ad- corporal punishment. administer At the adequate procedural ministered without safeguards. time, process same due demands that the apparently The defendants procedures followed school officials corporal punishment concede that comport with fundamental fairness. See County relatively pun- is a serious Larche, 1960, Hannah v. they ishment. “Corporal punishment In their brief state that L.Ed.2d 1307. public approach Whatley outlined Florida, County, schools of Dade is a Education, Pike Board N.D. discipline last resort an al- means as Ga.1971, (unreported, No. 977 three- suspension expulsion ternative to judge court) suggests appro * * (Defendants’ Brief, p. 17.) priate process resolution of the due Defendants that a list of state infrac- question. involving In a case an eleven- tions for which year-old pupil, the court said: would be remove a administered would pupil “Where, here, was to be “judgment aspect” applicable otherwise promptly transgres- corrected for his as to whether such should long-term sions, consequences particular be administered to student. only stemmed from his refusal to ac- say Defendants further that a formal cept punishment, his the flexible ele- hearing would not be desirable because process require only ments of due lengthen pun- it would the time before the student know and understand the ishment, anxiety and lead to undue punished, rule under which he is to be part of the student involved. and that in cases where there is doubt that, The district court found “There offender, as to the actual further in- published is no schedule of infractions quiry be made the school officials for which is autho- concerned.” rized, procedural nor formal re- quirements which If must observed be- a student must “know and under- punishment may fore be administered.” stand” the rule under which he to punished, clearly law, its conclusions of the district then the school author- that, punished court stated ities tell him must before he is precisely Also, done merits call witnesses in what he has which own behalf. his respond concedes the student should If the student allowed to be misconduct, engaged him, then in witnesses and in that he has op- some to determine whether cases he should accorded an all that remains is be portunity appropriate, corporal punishment ques- is to ask them relevant course, of its adminis- tions. Of all of this take to determine the details Policy County, place setting, in In an informal no for- tration. procedure principal administrative mal rules of 5144, the or his or evidence need making designee responsible for these be followed. is Thus, these decisions decisions. Examining procedures pre usually di- made someone who Policy 5144, scribed under we find them rectly sur- involved in the circumstances procedures not inconsistent with the we rounding alleged misconduct. implementing Policy have outlined. principals probably already that

If the student concedes most conduct, engaged procedural guidelines in he has certain follow have suggested. course, testimony such claims that he did know that Of prohibited, conduct was the school au from Drew indicates that this proceed uniformly thorities with caution: has not should been the case.36 Inquiry should made to determine urge corporal pun B. that Plaintiffs or should whether student knew ishment is unrelated to the achievement have known that conduct violated his any legitimate purpose. educational policies. school rules or Punishment testimony supports Dr. Kester patently sort would be unfair where to some claim Dr. Kester extent. genuinely the student was unaware of reputable stated could that think of “no regulation, school and had no reason authority corporal pun who recommends engaging know that he was in conduct (Tr. 737), ishment” that he could might later be used as a basis leading not think of “a renowned au punishment. Cf. Ann et v. Palisi St. al. thority psychology, psy educational al., et 5 Cir. 495 F.2d 423. chology, research, psychia educational publishing of written rules conduct try, corporal punishment who advocates many prob obviously would eliminate public schools or in the schools” might lems which arise this area. (Tr. 756). position He modified his by stating somewhat the he could think If that the student claims reputable authority of no who he is innocent of recom the conduct which mer suppress punishment, mended its school officials should immediately following behavior inquiries that, “without make sufficient to insure possible positive it contrary, guilty as soon as with a the student is be acceptable yond any all, reinforcement behavior.” reasonable After doubt. Dr. corporally Kester punished, once the student conceded that is there might possible. no be some retraction of authorities who favored corporal punishment,37 eyewitnesses This means that should that “some may say thing questioned by principal desig accomplishes it his already I nee and the student said that it should be allowed to accom- particularly before, sir, 37. “As I said We are I have disturbed the testi not read of mony authority, someone I that whole classes of consider to be an students were leading corporally punished authority field, I for the misconduct in fact can’t instance, although few. A number remember I’m of students claimed that sure somebody particular something there who education teachers writes occasionally give get print you everyone would somewhere in the class who could — get anything print noisy, one or can two swats when the almost said class was —who good something (Tr. 429-31, thing.” or when is a was stolen. (Tr. 755-756.) 637-8, 647, 878.) 809-811, 873, Cf. St. al., Ann et al. v. Palisi et F.2d 423. Thus, you officials. we conclude that plished: can terminate an un- willing punishment you to of at Drew if behavior wanted negative prohibi only violated the consequences, constitutional bear the however punish they (Tr. 756). Also, tion cruel and unusual counsel be” ment, process. pro- Cf. due plaintiffs he did not but for stated that violated Nosser, pose 1972, 456 is not a Anderson v. F. to that there 5 establish banc); jus- (en Pali et al. v. psychological 2d 835 St. Ann of or educational shred al., supra. corporal punishment. si et tification light In of the concessions V. by expert plaintiffs’ plaintiffs’ light in counsel, and in of other cases THE PARENT AND RIGHT OF volving corporal punishment there where TO CHILD PROHIBIT CORPORAL utility apparently was evidence of the OF- PUNISHMENT BY SCHOOL corporal unwilling punishment,38 we are FICIALS corporal say to or that mild moderate punishment complaint Paragraph achieve is unrelated to the any legitimate pur alleges beating following ment of educational that adminis pose. However, Andrews, this case the severe tered to Roosevelt Roosevelt’s punishment out be to re meted at Drew went father instructed school officials yond legitimate beating assaulting, bounds. frain from other physically injuring Para his son. wise Alabama, 1961, 294 v. In Dixon 5 Cir. alleges graph complaint that 150,157, F.2d this Court stated: instructions, despite these Roosevelt “Turning nature of then by paddled Para later school officials. governmental power expel alleges graph complaint that 22 of the plaintiffs, conceded must abridges a stu * * * power not un- that is digni right integrity, dent’s arbitrarily exer- cannot be limited and ty personality, from ar and freedom Admittedly, must be cised. there bitrary authority violation some reasonable and constitutional Fourth, Amend Ninth and Fourteenth ground expulsion the courts trial, Phyllis Straus, At ments. duty require rein- would have a four who attend mother children statement.” County schools, de testified directions, spite explicit her her children language case, In ex- a recent corporally punished. A num had been plained as follows: Ingra including children, James ber of passage “This and the constitutional they had refused ham, testified provision it license elaborates do not punishment, accept revise federal courts review and anyway. plain paddled view, In our disciplinary board at school actions clearly raised of whether tiffs the issue Application will. is limited to the may properly officials administer shocking rare case where there dis- parent if parity penalty.” between offense and objected has child to its administration. Lee N.D.Tex.1971, Macon of Educa- v. Board Estes, Ware v. F.Supp. tion, 460 n. the district court dismissed present case, regards alleged In the Drew an action where High School, part “a Junior there exists the defendants administered shocking disparity” prior between the offenses without by permission parent committed 'various of the students or student imposed and the harsh violation of the Fourteenth Amendment. Estes, Marietta, supra, F.Supp. 659; supra, F.Supp. 38. See Ware Glaser v. approach on this issue reasoning taken revealed court’s The district re-exam- opinion: in Ware deserves district court following portion its light recent of certain ination Su- Meyer v. doctrine “Under the preme which touch on the Court cases Nebraska, 390, 43 S.Ct. 262 U.S. child, relationship parent (1922), cannot the state 67 L.Ed. 1042 right privacy. include These cases with the liber- unreasonably interfere Stanley Illinois, guardians ty parents to direct S.Ct. L.Ed.2d Wisconsin upbringing and education of chil- Yoder, pa- These their control. dren under 1526, Wade, 1973, Roe v. L.Ed.2d rights beyond limita- not rental are 113, 705, 410 U.S. 35 L.Ed.2d of Mas- tion. Prince v. Commonwealth appropriate 147. present It the 158, 166, sachusetts, 64 S.Ct. 321 U.S. attempt time to this is- resolve 645, (1943). In or- 88 L.Ed. suggest Instead, that, upon sue. mand, re- process deprivation of due der for a findings the court district make Amendment, to the under Fourteenth of fact and conclusions of law on this occur, policies of the rules aspect of the case. must bear ‘no reason- school district judgments purpose some dismissal of each of relation to within able complaint competency counts of the of the Pierce are reversed State.’ Sisters, 510, and Society the cases are remanded for further v. 535, 268 U.S. 1070, proceedings 573, 69 L.Ed. not inconsistent with this 45 S.Ct. opinion. (1924). “According testimony, Reversed and remanded. it can- Independ- be said that Dallas MORGAN, Judge, R. LEWIS Circuit policy ent School on the District’s use dissents. bears no rea- purpose sonable to some relation with- MORGAN, Judge LEWIS R. Circuit competency of the state its (dissenting): educational function.” respectfully I dissent from the hold F.Supp. appeal, at 658-659. On this ings majority. I feel that simply following: Court stated the “We majority opinion inis conflict with our agreement with the well-consid holding Estes, N.D.Texas, Ware opinion ered memorandum of the dis F.Supp. aff’d 5 Cir. * * * judgment trict court and its den., cert. Estes, is affirmed.” Ware 93 E.Ct. 34 L.Ed.2d 321. fa 1972,458 F.2d 1360.39 Rights miliar section Civil Act depends The result in Ware founded, to some under which these actions are particular extent 1983, provides circumstances person U.S.C. that a § by revealed acting evidence in that case. color state law who de present case, In the prives the school authori privileges, another rights, presented ties have evidence, no and so immunities secured the Constitution opportunity have had no injured demonstrate shall be party liable to the in an corporal extent to which action course, equity. is, law or suit It is a useful necessary disciplinary recovery essential to un cases County.40 measure in Dade event, In plaintiff der Section 1983 that the estab- Whatley County v. Pike exactly Board of Edu- It is somewhat unclear cation, (unreported, three-judge plaintiff argued. what in this case D.Ga.1971. court), disagreed district court with plaintiff’s argument sanctity that “the It no means certain that family relationship, right importance so-called is of the same in ev- privacy, right integrity ery community. See, example, Glaser v. dignity personality” Marietta, supra. were violated Georgia authorizing statute federally protected invasion of lish an otherwise, rights; there constitutional Rosenberg jurisdiction. is no federal Martin, F.2d 520.

However, such as in a school System, approximate

ly 12,500 administrative teachers

personnel, population in excess a student schools, 242,000 pupils, dis and 237 school, ciplinary Drew Jun event one give High School, ior rise cannot question right and a

constitutional For courts intervene. federal reason, judg I would affirm the

ment of the dis

missed the actions.

In re VA- YARN PATENT PROCESSING LIDITY LITIGATION.

SAUQUOIT COMPANY, FIBERS Plaintiff-Appellee, al.,

LEESONA et CORPORATION Defendants-Appellants. (in its

KAYSER-ROTH CORPORATION Kayser-Roth Ho own name and d/b/a siery Company Kayser-Roth Ho siery Co., Inc.), tiff-Appellee, Plain CORPORATION,

LEESONA Defendant- Appellant. CORPORATION,

LEESONA Plaintiff- Appellant, al.,

The DUPLAN CORPORATION et

Defendants-Appellees.

No. 73-2420. Appeals,

United States Court of

Fifth Circuit.

July 29, 1974.

Case Details

Case Name: Eloise Ingraham, as Next Friend, Etc. v. Willie J. Wright, I, Individually, Etc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 29, 1974

Citation: 498 F.2d 248

Docket Number: 73-2078

Court Abbreviation: 5th Cir.