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

required by regulations. Any those nullity.

determination is a

Therefore, we conclude that the order hearing requiring repay- examiner

ment, power con- since within void, upon regulation, him by

ferred properly

and not us for before review.14 respect portion

With to that of the order

requiring termination, the decision of the reversed,

district court is and the order

is reinstated.

Reversed. friend, INGRAHAM,

Eloise as next al., etc., Plaintiffs-Appellants, et WRIGHT, I, etc., Individually,

Willie J. al., Defendants-Appellees. et

No. 73-2078.

United States of Appeals, Fifth Circuit.

Jan. holding, ty pursue remedy regulations In so we law. note that authorized specifically give 181.15(c). Commissioner the authori- 45 CFR Miami, Fla.,

Alfred Feinberg, plaintiffs-appellants. Howard, Jr., Frank A. Spi- Thomas G.

cer, Smith, Miami, Fla., James A. defendants-appellees. BROWN, RIVES, Before Judge, Chief

GEWIN, BELL, THORNBERRY, COLE MAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MOR GAN, CLARK, GEE, RONEY and Cir Judges.* cuit Judge part en of this banc. or decision * Circuit Wisdom took no consideration Principal by Assistant MORGAN, boys’ restroom Judge: R. Circuit LEWIS that he was Plaintiff testified Barnes. Ingraham Plaintiffs James and Roose- to Barnes for by a teacher taken Andrews, junior high two velt stu- tardiness, he but that refused offense of Florida, County, in Dade filed dents because, he paddling to submit to complaint containing three counts Barnes, he had two minutes explained to January one and two Counts he was get class when remaining to compensatory for were individual actions therefore, not, guilty of was seized and punitive damages brought and under ex- rejected plaintiff’s tardiness. Barnes jurisdiction with U.S.C. §§ 1981— and, plaintiff resisted planation when claimed under 28 and U.S.C. § arm, punishment, struck him on personal 1343. Plaintiffs claimed that back, across and the neck. injuries corporal punish- resulted from spanked again Plaintiff Andrews was ment administered certain defendants of Despite October denials alleged on in violation their of constitution- rights, guilt, plaintiff paddled on back- particular al was in their by defendant and on the wrist punish- side Wright freedom from cruel and unusual presence of defendants in Specifically, plaintiff Ingraham ment. having allegedly for Deliford and Barnes alleges in count one that on October glass sheet metal class. Principal Wright broken some in defendants and plaintiff paddling, a of As result this Principals Assistant Deliford and Barnes pain pills received plaintiff visited a doctor and repeatedly struck with a wood- instrument, discomfort, approxi- lasted injuring plaintiff en causing and expenses. mately medical a week.

him incur paddling Plaintiff testified that Count three is a brought class action precipitated and several other his by plaintiffs Ingraham and Andrews as disruption over children’s of class representatives of the class students objection of the Defendant teacher. system of the Dade County school who Wright plaintiff removed and the other subject corporal are punishment disruptive students his office where- policies issued defendant members upon paddled he eight to ten them. the Dade County Board. School This Wright initially plaintiff had threatened count injunctive seeks final de- and/or blows, five with latter but when the re- claratory corpo- relief the use of position, fused to paddling assume a ral County in the Dade Wright called on defendants Deliford System School can be divided into plaintiff and Barnes in a prone who held arguments. three constitutional First position Wright while administered plaintiffs claim corporal that infliction of twenty complained blows. Plaintiff to punishment applied on its face and as following his mother of discomfort case constitutes cruel and paddling, whereupon he was taken hospital for treatment. Plaintiff intro- ato unusual applica- its grossly tion is disproportionate duced evidence that he had suffered painful misconduct in which have required prescrip- bruise engaged. Second, plaintiffs claim that laxative, compresses, sleep- tion cold capricious because it is arbitrary, and un- ing pain-killing pills days and ten achieving any legitimate related to edu- prevented rest home and that him goal, cational de- sitting comfortably three prives liberty all students of without due weeks. process of law in violation of the Four- two alleges inci- Plaintiff Andrews teenth Amendment. al- Plaintiffs also lege dents of the ba- failure defendants to damages promulgate sis for his count' regulations claim for list of school complaint. alleges corresponding two Plaintiff increases punishments 1, 1970, he, along capriciousness that on punishment. October with boys, spanked Finally, plaintiffs fifteen other that defendants’ claim one and counts rights, safe- likewise dismissed any procedural provide failure two. inflicting before guards including adequate no- students, I. Jurisdiction. misconduct, hearing, ex- alleged tice of cross-examination, assert that there repre- Defendants amination count three jurisdiction federal over consti- no rights, notice of sentation 1981-1988 and 42 U.S.C. deprives §§ summary tutes because the 1331 and process U.S.C. § without due liberty students Board and the Su County Dade the Fourteenth School law in violation Schools, L. perintendent of Edward Amendment. and hence Whigham, “persons” are not presented their evidence Plaintiffs amenable Defendants are not to suit. in a week- complaint three of the count long Bruno, City rely on of Kenosha v. with- court before the district trial 37 L.Ed.2d 109 U.S. (1973), plaintiffs’ close of jury. out a At the Supreme in which the Court held un- for dismissal defendants moved “person” municipality was not provides 41(b), Rule F.R.Civ.P. der 1983. While it meaning within of § part: that a school board is not is well-settled an action tried plaintiff, in After “person” and thus cannot sued un be jury, has com- court without a by the super that a school der it is clear evidence, of his pleted presentation to “person” is a amenable suit. intendent defendant, waiving his without Sterzing Independent Bend v. Fort in the event evidence to offer District, 496 F.2d n. School may move granted, is not the motion therefore, 1974). We, hold that ground for a dismissal on the granted jurisdiction improperly plain- the law the upon the facts and County against the Dade School Board right to relief. The tiff has shown no and, accordingly, part of the com may facts then court as trier of the plaint must Jurisdiction to be dismissed. judgment render determine them and against Whigham, L. proceed Edward plaintiff or decline against the Schools, was, however, Superintendent of the close of any judgment until render granted. properly court renders all the evidence. If the II. Cruel and Unusual Punishment. judgment against on the merits findings court shall make plaintiff, the allege that Plaintiff-appellants 52(a). in Rule Unless the provided punishment on the infliction of in its order for dismissal other- court face, on its and as public school children specifies, a dismissal under wise case, constitutes applied in the instant pro- any dismissal not subdivision and punishment under the cruel and unusual rule, other than a for in this vided to entitle Eighth Amendment sufficient jurisdiction, for dismissal for lack of injunctive damages and re plaintiffs to venue, join a improper for failure to County lief the Dade School 19, operates as an party under Rule agree. not 1983. We do Board adjudication upon the merits. majority opinion of the of this It is the Eighth that the does court Amendment By agreement parties the court of disci apply not to the administration sup- considered the evidence offered punishment, pline, through corporal offered port having count three as been by public public school children upon if on counts one and as and two teachers and administrators. these two motion for directed verdict for Eighth Amendment states: then dis- counts. The district court required, “Excessive bail shall nor and, not be complaint missed count three of the imposed, excessive fines nor cruel lawfully concluding jury that a could punishments unusual inflicted.” Not find that sus- either of the “bail,” only of the words the connotation tained a of constitutional “fine,” punishment); cruel and unusual legislative history1 Robin but California, son v. concerning enactment the bill of (1962) (state’s impris 8 L.Ed.2d 758 rights supports argument onment of as cruel narcotics addict was intended Eighth Amendment punishment); unusual Weems v. United applied only invoked as a States, Indeed, U.S. S.Ct. sanction for criminal conduct.2 (1910) (disproportionate pun which have in L.Ed. 793 Supreme decisions years ishment of fifteen to hard labor terpreted have focused the Amendment liability for conviction of strict offense cruelty penalties “in inherent punishment). as cruel unusual judicial in accord flicted tribunal for crimi ance with law and retribution Hohn, Although Negrich

nal conduct.” Court has not (W.D.Pa.1965), yet F.Supp. 173 affirmed on applicability discussed the . (3rd grounds, Cir other corporal punish- Amendment added). g., 1967) (emphasis schools, E. Furman ment administered Georgia, a few lower courts have considered the (1972) (death penalty as issue and 33 L.Ed.2d 346 divided on its resolution.3 We legislative surrounding scription the enact- that will ‘consequence befall history regulating one who fails to abide ment of cruel and unusual clause indicates provi sions . .’ Id. at 97 intended [78 prevent 598]. tortious “Infliction of and barbarous methods used in some Europe- pub lic school personnel an countries to extort meets both tests.” In confessions and to pun- graham Wright, v. following argument 498 F.2d 248, 259-60, ish crimes. The n. delivered 1974). 20 in favor of the “cruel and unusual proposed In Rights Dulles, v. the Trop clause” of the Bill Court was Supreme of indicates the in- addressing the constitutional tended limits of its of propriety scope: 401(g) of the Act of Nationality 1940 which [Congress have will] ascertain, out, point for the loss provides of United States citizen- and determine, what kinds of punishments aby national who has ship deserted the mili- shall be inflicted on persons convicted during forces of the United States a tary time crimes. They are nowhere restrained of war and who has been convicted court- by inventing the most cruel and unheard setting In martial. test up “purpose” de- annexing punishments them to crimes; termine what “penal” what is thereby and there is no constitutional check them, Eighth within the of the scope Amendment’s gibbets but that racks amoungst be against cruel and unusual prohibition punish- the most mild instruments of their discipline. countering govern- ment, the court was the Granucci, Nor Cruel and Unusual Punishments argument ment’s that the statute was “non-pe- Original Meaning, Inflicted: The 57 Cal.L.Rev. in nal” for provided loss citizenship (1969), quoting at 841 from J. Elliot, to incarceration. 356 U.S. opposed 96, 98- Debates in the Several State Conventions 78 S.Ct. 590, 2 L.Ed.2d the of the Adoption Federal Constitution, the court in Yet, v. Dulles was still Trop (2d 1881). (Emphasis added). Ed. addressing the of an imposition essentially majority’s criminal sanction. The court several times re- the ar- 2. We are not persuaded gument original fers to the desertion for which defendant was in the decision that the panel losing g., his “crime;” as a e. citizenship, in v. Dulles re- Court decision Supreme Trop holding Eighth U.S. at 2 L.Ed.2d at 640. In the Amendment quires 401(g) addition, denationalization under could the administration reaches of‘corporal occur after conviction court-martial only ment in schools: public August under § 885, U.S.C. enacted in stated Vol. Harv.Civ. succinctly It was 1956. The loss of found to be citizenship Rights Punish Corporal Civ.Lib.L.Rev., — Eighth reached the Amendment in Trop in Public n. 24: Schools, ment the p. contains elements of criminal sanctions im- “In v. 94-100 Dulles, Trop [78 judicial striking- aby posed tribunal which are (1958), the Su S.Ct. L.Ed.2d 630] in ly absent the in the application discipline applying eighth Court, amend preme schools. to all inflicted punishments pursuant set laws,’ forth two tests to deter discussing ‘penal 3. Decisions applicability meaning First, mine the there Eighth penal. Amendment to corporal must be the imposition ‘disability administered in the schools can be clas- Id. at 96 groups: (1) [78 purpose punishment.’ sified into three case Eighth Second, there must be 590]. pre- Amendment does apply protected constitutional federally by the taken approach with the concur . . . Mere tortious con- rights . held have courts two district does not constitute duct inapplicable to to be Eighth Amendment stat- rights of constitutional public schools. ute. the court dis- Wain, supra, In Sims v. damages in- [authorizing corporal missed an action This statute of facts simi- arising out junctive pro- relief punishment] does not offend instant pun- lar to those and unusual against tection cruel stating: provides this amendment ishment since imposed against penalties a limitation Eighth Amendment Regarding . . . Since for criminal behavior. is an initial distinction

claim there punished for an plaintiff neither penal- made between criminal must be nature, offense which was criminal penalties. distinc- ties and civil pro- not Eighth Amendment does Eighth tion must be made because the de- assigned scribe conduct in a civil applicable Amendment is not (emphasis fendants. Id. Concerning the Cruel context. added.)4 clause Unusual Punishment Eighth Amendment cor- argument that of their support has stated that: primary- ‘the con- public school in a poral punishment purpose always of that clause has been punishment, cruel and unusual text so, considered, properly to be di- Bishop, 8 Cir. appellants cite Jackson v. rected at the method or kind of Eighth 571 in which imposed ishment for the violation of enjoined the Appeals Court of Circuit statutes . .’ criminal Powell prisons. We do strap in use of a 514, 531-32, Texas, public schools to prisons and find 2145, 2154, (1968). 20 L.Ed.2d 1254 Id. the context of analogous in added). (emphasis at 549 discussed, su- coverage. As Amendment Likewise, Gray, Gonyaw Eighth Amend- the function pra, Vermont, dismissing district court of un- cruel and prohibition ment’s damages injunctive an and re- action for pre- was intended punishments usual lief a school board which im- pen- unduly harsh imposition of the vent posed corporal punishment on its stu- It is criminal conduct. for alties dents, stated: interpretation of the unreasonable within its to include Amendment is, Eighth course, it of essential to upon persons imposed coverage discipline

recovery in both cases under 1983 conduct, since criminal for plaintiff incarcerated that establish an invasion (N.D.Ga.1971) (three judge court); punishment public and Sims v. in schools — Bramlett v. Education, (D.N.M. F.Supp. Wilson, Board (8th of 329 678 1974); (2) 495 F.2d 714 Cir. cases 1971). Eighth Amendment does not apply public in recently 4. The district court of Vermont has Waln, F.Supp. (S.D. schools — Sims v. 388 543 jurisdiction granted 1343(3) under 28 U.S.C. § 1974), Gonyaw Gray, F.Supp. Ohio and v. to entertain a claim that administration of ex- (D.Vt.1973), (3) assume, and cases that corporal punishment cessive violated the stu- deciding, Eighth without Amendment right dent-claimant’s to freedom from cruel applies imposition corporal punishment of punishment. Way, unusual Roberts v. in schools but in instant case determine F.Supp. (D.Vt.1975). The court distin- punishment complained of was not severe guished Gonyaw Gray, supra, Roberts from enough punish to constitute cruel and unusual alleged. in which less severe Owen, F.Supp. (M.D.N.C.1975), ment — Baker v. however, holding, The extent of the was mere- - U.S.-, aff'd L.Ed.2d 137 ly finding wholly the claim was not so (1975); Marietta, Glaser insubstantial or frivolous as to divest the court (W.D.Pa.1972); Estes, F.Supp. 555 Ware v. jurisdiction; applicability Eighth curiam, F.Supp. (N.D.Tex.1971), per aff'd corporal punishment Amendment to severe 1972); Whatley 58 F.2d 1360 4 was not reached. Education, County v. Pike Board of C.A. 977 not excessively administered, discipline part such total does not come within scope Eighth being ishment to which the individual is Amend- and, such, subjected protection. plaintiffs for as Because the his crime is a allege do not proper subject facts Eighth support for Amendment which could finding that scrutiny. deprived To defendants have extend Jackson case right them of their prison public from a to freedom from context to a cru- would, el however, punishment, situation unusual neither distort the in- legal scope damages tended action for Amendment.5 included in counts one equitable and two nor the imply by We do not hold- mean our injunctive action for relief set out abuse, either ing that we condone child count three can lie. We abhor in the home or the schools. any discipline which could re- exercise III. Substantive Due Process. permanent injury to sult in serious or Indeed, by allege the child. if the force used Plaintiffs that “the infliction of plain- disciplining deprives defendant on its teachers face allege, a plaintiffs all plaintiffs tiff was as severe as students as well as ‘liberty state court defendants Florida could find without due of law’ in civilly criminally for liable tortious violation of the Fourteenth Amendment severity exceeding the to the conduct level United since it States Constitution by arbitrary, capricious, authorized 232.27 of Fla.Stat.Ann. and unrelated to by County policy achieving legitimate Dade Board any School educational is, essence, how- purpose.” 5144. The basis of such actions In here al- ever, law, not federal lege right tort criminal of their to sub- We find neither process, constitutional law. stantive due as this expand proper necessary arbitrary governmental nor freedom from beyond its intended Amendment action has come to be known. We find scope encompass an argument unpersuasive. and reasonable essentially which is based action Statutory authority the use of cor- battery. commission of a poral in Florida schools is implication found 232.- short, scrutiny propriety provides: 27 of Fla.Stat.Ann. which physical a school teach force used upon be the er his or her student should Each teacher or other member court, partic function of with its staff school shall assume expertise authority pupils ular in tort and criminal law control of questions; assigned princi- administration of to him the schools, shall, pal keep whether or good order assuming 5. Even finding that strap the son Amendment court’s use that was equally applicable corporal punishment pun- to cruel and unusual was its belief such that imposed by authorities, ishment, imposed prisoners, school we would not when on “of- necessarily adopt contemporary concepts decency the of the Jackson fend[s] of and corporal punishment court per dignity.” that whipping is human se cruel Id. at 579. While unusual, and many prisoner practical sufficiently since there degrading are an adult is to prisons public “contemporary concepts differences decency,” between and offend schools of that mitigate paddling would child, tend long-ac- to the we cannot use of believe a a such discipline First, cepted disciplining in the inculcating latter institution. means of and the concepts Jackson court responsibility, of concerned with obedience and absence of- safeguards necessary prevent decency fends current notions of abuses in and human imposition corporal dignity. punishment by pris- Heyne, See also Nelson v. greater 1974) officials. The much access in which the court held through school paddling juveniles children parents public their that in a correctional in- opinion political process, and to the punish- stitute in constituted cruel addition and unusual ment, to the generally corporal natural punishment restraint that but that exists adminis- child, when one strikes upheld. deters tered in schools excessive con- could be Id. at duct administering the school official 356. cor- poral punishment. Also, central to the Jack- policy.” educational mining its in which places in classroom and other proc- substantive pu- plaintiffs’ charge of in assigned he is to be corporal ess is inflict pils, but he shall not prin- consulting the punishment arbitrary before guaranty . a charge cipal or teacher the law demanding that legislation, school, shall no case unreasonable not be unnecessarily degrading ishment be or real and have a shall means selected (Emphasis add- in its nature. object severe to the relation substantial ed.) is The test attained. to be sought touching a matter there be whether County In addition the Dade School in- merits which public interest at the time Policy effective Board the hands stant correction arose, explicit-

plaintiff’s of action cause remedy so, and, if authorities punishment, set- ly corporal authorized rule-making authorities by the adopted it was ting which guidelines forth it. correct reasonably calculated to be administered.6 Education, supra, at v. Board Sims record, we reviewing the After finding court’s agree with the district Certainly, discipline maintenance of shown “the has not evidence prerequisite is a as au order schools concept, or board, establishing the most effective learn- ap or thorized the school ing atmosphere proper is a and as such system, is plied throughout the school object regula- for state and school board arbitrary, capricious, wholly or unrelated discipli- Without the existence of tion.7 legitimate purpose of deter- to the administering must the corporal punishment Policy provides part: if the stu- liabilities realize his own personal II. Punishment: Punishment Corporal being given punishment dent general Punishment in the in- sense is the injured. physically flicting of a for an offense. penalty Corpo- never be ad- should Corporal generally ral to the applied whom school person- a student ministered to offender or is body physical punish- psychological medi- or nel know to be under ment as to other forms of opposed has been pre- cal treatment unless there and is administered as a means psychologist with the school conference changing behavior student. the physician. Therefore, it is whether important analyze effec- extensively, revised 5144 was Policy goal or not will be accomplished aft- months ten tive November almost such action. The revision sets action was filed. er this be used Corporal punishment which of strokes the number limit on maximal seeking other means of coopera- case where (five chil- school elementary for be applied can If it failed. ap- from the student have tion high junior and senior and seven for dren is likely that corporal punishment pears ad- children), to be requires must confer become the teacher necessary, in no case about ministered “posteriorly” will deter- with the The principal principal. considera- shoulders, emphasizes the head and mine the necessity in deter- the offense the seriousness tion of designate and the time, per- place, mining requires punishment, the proper son to said punishment. administer justified recording infraction the student should understand clearly punishment. of the offense and the reason seriousness Waln, (S.D.Ohio 7. See Sims v. F.Supp. Care should be taken punishment. 1975), in which the court stated: of time between offense period long is not so as to and the punishment A teacher is for the in responsible discipline The cause undue in the pupil. pun- progress, anxiety his school, conduct, and for in kindness must ishment be administered of his It is his deportment duty pupils. adult, at a and in the of another good presence to maintain order and to of his require calculated time and under conditions not a faithful of their duties. pupils performance or shame. ridicule hold the student discharge up To enable him to ef- duty administering In the of corporal he must fectively, have the to enforce power that will be used no instrument shall ment, obedience to his lawful commands. prompt injury student, produce physical For reason, cases, he proper waist or be- above the no of the body inflict part on refractory pu- be struck. Id. at 546. person low the knees may pils. IV. Procedural Due misbehavior, Process. nary for students sanctions deprived would be who desire to learn Plaintiffs also allege part of their by the more right to an education their injunctive claim for declaratory re- of their class. We disruptive members deprived lief that have defendants corporal pun- unwilling hold that are represent class which of its ishment, of the means used to as one right procedural process. due Plain- atmosphere an which facilitates achieve argue procedural process tiffs knowledge, the effective transmittal of requires (1) that a schedule school has no “real and substantial relation to regulations punishments to be ac- object sought to be attained.” established; corded for their breach be (2) given that notice be to the student of Certainly guidelines set the offense for which he is to be Policy down in ished, establish standards (3) that a hearing oppor- with arbitrary which tend to eliminate or ca tunity for examination and cross-exami- pricious in any pun elements decision to nation and with a to counsel be Having ish. determined that accorded before is inflicted. corporal punish itself and process concept of due guidelines ment as circumscribed premised upon fairness and reasonable Policy arbitrary, capri 5144 is not light totality ness circum cious, legitimate or unrelated to educa Larcht, 420, stances. Hannah v. 363 U.S. goals, tional refused at we to look each (1960); L.Ed.2d 1307 individual instance to de Refugee Joint Anti-Fascist Committee termine if it has been administered arbi McGrath, S.Ct. trarily capriciously. think We it a (1951). L.Ed. 817 any pro “[W]hether judicial power misuse of our to deter tections depends are due on extent mine, example, whether teacher to which an individual will ‘con has arbitrarily paddling par acted ” grievous demned to suffer loss.’ Joint ticular child for certain behavior or Refugee Anti-Fascist Committee particular whether in a instance of mis McGrath, supra, at at 646 conduct five licks would have been a (Frankfurter, J., quoted concurring), appropriate punishment more than ten Brewer, Morrissey v. again licks. We possibility note L.Ed.2d civil or criminal action in state court (1972) added). We (emphasis do not against a excessively teacher who has paddling believe that infliction of a sub punished a child.8 jects grievous to a loss for schoolchild emphasize We not this. proc which Fourteenth Amendment due par- duty judge court’s the wisdom applied. ess standards should be regulations governing ticular school mat- argument discipline. Only procedural ters of if In its internal regulation safeguards, bears no reasonable relation the dissent relies Baker v. Owen, legitimate maintaining end of an a three-judge district court atmosphere learning judgment conducive to can it summarily affirmed provi- Supreme be held to violate substantive Baker, Court. In the three- Paddling judge sion of the due laws. upheld district court a North Caro long been of recalcitrant children has lina statute authorizing corporal punish accepted good promoting method of be- ment plaintiffs’ argument responsi- instilling havior and notions concept pri constitutional of familial bility vacy and decorum into the mischievous bars school spanking officials from heads of do school children. We over parental objection. children addition, here overrule it. the court set forth certain during Indeed, Policy personal being his as effective own liabilities if the student 1970-71, provides part: person given corporal admin- physically “The in- istering jured.” must realize the (1975), L.Ed.2d that Ohio statute procedural requirements accompany authorizing suspension of school the administration of Supreme affirmance students without notice offense ment. The Court’s judg- suspended three-judge oppor- court and without of this district tunity with- for a summary hearing violates students’ ment was a affirmance rights procedural process. lower appeal of that due opinion. out only by holding the brought basis for the that due judgment was Court’s court present- process should afforded plaintiffs only question plain- the have been tiffs was its that ed whether determination educa- Supreme to the was Court was a property tion parental use substantial interest objection the could bar officials; that the State of Ohio had conferred on corporal punishment by school “having chosen extend officials did defendant right the to an people part judgment education appeal that not appellees’ Ac- class safeguards. generally, Ohio not requiring procedural grounds court’s withdraw that three-judge district on of mis- cordingly, the require- pronouncement procedural fundamentally conduct absent fair proce- on and, Id, 574, was never the Court dures . ments before .” 419 U.S. at therefore, summary affirmance at at its S.Ct. 42 L.Ed.2d 734.10 Noting does not judgment suspension that lower that a court’s could recorded not judgment part reputation bind us to a harm a student’s inter- appealed.9 higher fere with opportunities later employment, education and Court procedural safeguards holding In that “liberty” also held that a inter- student’s accompanying the use of est in maintaining good his name and ishment are not consti- reputation schools arbitrarily could not be de- mandated, tutionally cognizant prived by a suspension we are unattended Supreme holding proper procedures. v. Court’s Goss We believe that there is an Lopez, important 419 U.S. 95 S.Ct. distinction While the 9. judgment them carried ance from the believe to declare Lennox, er courts tiorari. of a dismissal Court does ed to question; and details no District Court in Goss discussed interpreted cross appeal merits, ignoring Supreme equivalent (1972) not constitute applying otherwise, was that Court on that Hicks can be the same in which the court stated: The Court’s present are bound in its dealing the Court a state’s not before Supreme binding (Supreme Supreme the “de minimus” precedential Court until for want to mean judgment only holding taken case. Hicks to the impact with “grievous approval by summary Court statute appeal. Court L.Ed.2d that of Court’s In questions the precedential insofar readily countering as a value defendant). that Court Hicks, Miranda, has held substantial of a lower such a dismissal summary certainly unconstitutional loss” a denial of cer- See, disposition affirmance test employed of a dismissal other as it refused distinguished facts the Supreme not decisions “ ‘Whether 31 L.Ed.2d (1975), Swarb v. standard, that 422 U.S. present- informs aspects we are affirm- federal cannot where value argu- court low- we on The infliction of procedural difference between an exclusion from itself of educational the student routine cational place, because apply. clause did not exclusion tion whether minimus, clusion from the educational stitutionally mandated ing student Regents S.Ct. Due Process Clause.” substantial long to the court nature of the process we must ^[2701] . The Court’s view has disciplinary clause, to a as a process, was its ten-day cannot court’s Roth, safeguards. interest to a gravity requirements grievous account must be taken responding property come look the shortness L.Ed.2d at 735. “grievous 2705-2706, interest suspension through reasoning, suspend paddling, to be measure not to benefits, is irrelevant into U.S. [564], Id. 419 U.S. at procedural loss, There is a protected play. to an loss” for which con- at stake.’ suspension, apply process such as because unlike the 33 L.Ed.2d 548. the due did not of that does “weight” long argument Thus, In so at guarantee not by the due safeguards 570-71, 92 qualitative is not de been the ques- is itself a paddling. period of subject Board of the first total ex- holding, process accord- subject and a but to denial edu- process tion, applicability supra. of due of the abuse “The likelihood terms suspension, by which of corporal punishment a is minimized between standards parents the participation from the educa- and school exclusion involves itself, affairs, paddling, by boards in process and a school tional prop- availability of a and criminal sanc- civil which involves no tions teachers who exceed the of a claim to edu- erty interest or denial event, any In certainly a much less limits of moderation. cation and which is simply a is not serious of a child than is sanction which the life event in serious enough prerequisite expulsion.11 require Like- suspension or an a wise, hearing.” Gonyaw Gray, interest in formal v. we find no substantial by paddling, a reputation violated suspension can indeed

while a recorded essence, forth, we refuse to set as impact aon permanent adverse have a constitutionally mandated, procedural could conceiva- reputation person’s activity standards for an which is not chance to obtain bly person’s harm that substantial enough, on a constitutional education, we find employment higher or level, to justify time and effort paddling, a a it difficult to contend which expended would have to be by the event commonplace and trivial school in adhering procedures to these children, any involves of most lives justify further by interference federal damage reputation. courts into the public internal affairs of schools. paddling If a of a school child It seems to corpo- us that the value of subjects “grievous him to a loss” suffi- ral severely would diluted cient to require proced- constitutional by process elaborate procedural imposed safeguards ural the Fourteenth by require, this court.12 To for example, Amendment, conceivably then a teach- published schedule infractions for er’s keep decision to a disobedient child which authorized, after give school or to a child failing would serve judgmen- to remove a valid grade in a course would just inflict as aspect tal from a decision which should grievous a loss and would require proce- properly be experienced left to the ad- dures which meet constitutional stan- Likewise, ministrator. a hearing proce- dards. We interpret do not the due effectively dure could undermine the process clause of the Fourteenth Amend- utility of corporal punishment for the ment so broadly. holding, In so we are administrator probably who has little mindful oft-quoted statement time under procedures to handle made Eppersen Justice Fortas in the disciplinary problems all which beset Arkansas, him or her. that the hold relation- “[T]o (1968), L.Ed.2d which he asserted: ship parents, pupils, between and school officials must be conducted in an Judicial interposition adverse operation atmosphere according procedural systems of the na- rules which we are accustomed in tion problems raises requiring care and hardly court of law would best serve the restraint. By . large, interest those involved.” education in our nation is com- Whatley v. County Pike Board of Educa- mitted to the control of state and local Indeed, recognized County Policy often court has 12. Dade School Board applicability guidelines the due clause to ex does contain pulsions suspensions. g., requires, E. Dixon v. Ala is to be administered. It Education, example, bama State Board of 294 F.2d 150 the “student understand (5th denied, 1961), clearly Cir. cert. of the offense seriousness and the (1961) (due process punishment.” Policy L.Ed.2d 193 reason for If the applicable long followed, enough guidelines to a removal for dura are not students would expulsion); tion to be classified Black have Stu redress to the School Board. Myers High dents of North Fort Jr.-Sr. School Williams, 1972) (due process applicable ten-day suspension). jurisdiction board 1983 over the school § authorities. Courts do not and cannot exist, a lack there is in this case does intervene in the resolution of conflicts involving jurisdiction every case daily operation which arise in the recently held3 We have school boards. systems and which do not di- that, juris- the fact that 1983 despite § rectly sharply implicate basic con- be may not diction over a school board stitutional values. Id. at instance, jurisdiction given ain 21 L.Ed.2d at 234. 1331.4 proper under § Affirmed. agree majority I Since with the that GEWIN, Judge (concurring in Circuit appellants have not asserted a constitu- result). relief,5 tional claim dismissal was Although agreement I am in full with proper in the because 1331 is of no aid § majority’s the merits resolution of agree absence of such a claim. I do not my judgment it is considered mere a § failure to state jurisdictional statement juris- claim automatically federal defeats opinion is not in accord with recent deci- diction under 1331. § Accordingly, sions of our court. I concur majority’s affirmance of the dis- GODBOLD, Judge, with whom Circuit trict complaint, court’s dismissal of the BROWN, Judge, joins (dissenting): Chief fully but do not agree jurisdic- with the agree Judge I with Rives that arbi- tional statement. trary and excessive majority quite is correct in its process, is a due denial of substantive conclusion that school boards are often although I am not convinced that considered to be either arms of or in the to the level in this case rose Hence, nature municipalities. therefore, I, of such a violation. disa- “non-person” City rule of of Kenosha gree majority’s with the statement Bruno, U.S. judicial pow- it would be an abuse of our (1973), L.Ed.2d 109 school boards as enti- in- er to determine whether subject ties are not to suit under § particular flicted in a con- case exceeds jurisdictional statute, and its 1343.2 stitutional rule of limits. This is a mere Likewise, majority opinion equally convenience, made charac- palatable correct in its conclusion that a school terizing the difference be- issue as the superintendent “person” is a liable to tween five ten licks. I doubt that suit under 1983. says, majority really means what it However, disagree majori- I with the suspect and I that if in a future case ty’s merely indication because vic- inflicted has broken the 1. 42 U.S.C. § 1983. involving variety circumstances e. schools, g., College, Lansdale v. Tyler Junior 470 F.2d 2. 28 U.S.C. § 1343. (5th 1972) (en banc) (potential college Cir. E.g., Callisburg Roane Independent register students not allowed to because (5th School District, F.2d 635 n.1 Cir. length), hair cert. denied, 411 1975) (citations omitted); v. West Baton Kelly (1973), L.Ed.2d 964 we certainly Rouge Parish School Board, 194, 197 regard must have scrupulous principles (5th 1975) (citations omitted). Cir. Other cir extending federalism in the reach of “constitu cuits have utilized the same rationale in hold generally tional common law.” See Mona ing jurisdic that Kenosha does not bar § 1331 ghan, Constitutional Common Law, 89 Harv.L. tion over a Brault v. Town of municipality, (1975) (“The general guarantees Rev. 1, 45 (2d 1975) Milton, 527 F.2d 730 74-2370, Cir. [No. process are so inde equal protection Feb. 24, or a 1975], Cox v. county, Stanton, terminate in character on their develop 1975) 529 F.2d 47 [No. 74-2218, Oct. 6, authority body subconstitutional law 1975], go would be to beyond to rec implementation ognize judicial to create power a sub-order 4. 28 U.S.C. § 1331. of liberties without ascertainable constitu Although we have not hesitated to find due points”) (emphasis origi tional reference nal). process equal protection violations in entry leg opinion, and hold after of its was not we will face the issue tim’s report opinion. has been included in that substantive due judgment follows: reads as violated. “Now, therefore, consistent with RIVES, Judge, whom Circuit with ORDERED, opinion it AD- amended AINSWORTH, Circuit GOLDBERG and JUDGED, AND that: DECREED join Judges, (dissenting): “1. North Carolina General Statute majori With deference to the en banc 146, fact, on its is declared 115— adhere ty, original majority I to the to be in violation of the Constitution opinion reported Ingra and decision as of the United States. 248, Wright, 1974, ham v. 5 Cir. F.2d 498 Defendants, “2. agents their and make a few comments. additional servants, successors, per- and their are The “Findings district court’s of Fact” enjoined manently in the administra- quoted opinion were original tion of punishment 253, 254, F.2d facts and the were North schools of the State fully more detailed at 498 F.2d 254 — 258. to Carolina conform to the minimal plaintiffs’ close case At the of the process requirements due Four- counts, district court dismissed all three teenth Amendment as follows: Three, class ac to Count tion, shown no had “(a) Except for mis- those acts of relief, right to and as to Counts One and conduct are so or anti-social jury lawfully Two that could not find disruptive in nature as to shock Ingraham that either James or Roosevelt conscience, corporal punishment may Andrews had sustained a be never used unless the student The rights. federal constitutional en was informed spe- beforehand that original court banc now affirms. On cific misbehavior could occasion its hearing we reversed and remanded for and, use, subject exception, this proceedings. Reconsidering further never should be first employed as a facts, law and the I remain undisputed line of for misbehavior. original convinced that decision is our requirements The of an announced right. possibility and an attempt modify behavior I. Baker v. Owen. by some other keeping after means — majori In the panel’s case the school, work, assigning extra or ty opinion Judge Morgan’s dissent some other insure —will 29, ing opinion July were entered on the child has clear notice 248). (498 F.2d Since then another subjects certain behavior him to involving case physical punishment. Baker, grader, sixth Russell Carl “(b) A teacher principal or three-judge has been heard District corporally ish only presence Court Middle District North (teacher a second school 13, 1975, official or January opinion Carolina on en principal), who April 23, 1975, must be informed be- tered judgment entered 13, pres- forehand and 1975, in the student’s appeal judgment June and on ence of reason for the affirmed on Octo 15, Owen, ment. The student need not af- ber Baker v. M.D.N.C. aff’d - U.S.-, opportunity forded formal 294, F.Supp. present his side The to the offi- 46 L.Ed.2d 137. Su second cial; preme implication requirement Court did not leave to is intended only that “the to allow a express protest, but ordered in terms student (Emphasis spontaneously, add an arbi- judgment egregiously is affirmed.” three-judge ed.) trary judgment application The contrived court, nearly punishment. months district entered two judgment, the “that shows the usual female, buttocks vent or dissuade quirements quirements ther elaboration As to costs.” ness in administration. eighth amendment the child’s tered “(c) An official written who “3. corporal punishment punishment”; that the .,” and that above minimal the name administered paragraph with a wooden explanation parties in order present. are not opinion at 395 parent, upon plaintiffs made of the second the state upon numbered shall bear who has adminis- two prohibition intended accomplish of his “His drawer violates per se necessary re- must licks to his F.Supp. 303 request, a from fur- teacher, a their own 1 of the no claim reasons provide official divider of un- fair- pre- re- procedure proceed have an ishment. This conclusion is curring). ^[565] (1972); postulates. eration of all the North procedural safeguards liberty it.” 395 ally cept by amendment, Corp., “We “Having Regents L.Ed.2d Goss v. conflux Carolina school children interest, believe interest, protected by Sniadach F.Supp. liberty to be concluded, 95 S.Ct. inquiry Roth, 419 U.S. Lopez, supra, that Russell (1969) (Harlan, avoiding corporal pun- employed. we must decide at many premises in the fourteenth above 301, 33 L.Ed.2d as to the upon due consid- Family Finance should [1975]; 302. factors, See compelled Carl the con- J., type protect have a gener Board what 570— does con present appeal, Relevant to the the short, begin to this record does not “In Supreme judg- affirming Court in the com- picture present a ment of the district court held that so to that in supra parable Ingraham, [5 reasonable, long as the force used is cor- 255-59, or 1974, 248], at 498 F.2d Cir. poral punishment does not violate the 491 F.2d in Nelson Heyne, Eighth Amendment. It left undecided indicate 1974), which we believe Eighth the issue of the Amend- whether beatings that could consti- the kinds of applies corporal punishment to the if cruel and unusual tute of school children. appli- indeed eighth amendment is the Acknowledging my to indebtedness F.Supp. at 303. cable.” 395 Judge Morgan calling my to atten- not de- did posed, The district court but only plaintiffs appealed tion that the Eighth whether the cide the issue of Supreme appeal and that no corporal pun- applies Amendment paragraph judg- was taken of the F.Supp. ishment of school children. ment, agree Supreme I that the Court’s at 303. judgment affirmance of the did not bind 2 of the paragraph numbered As paragraph this Court as to less, 2. Nonethe- opinion judgment, the district court’s paragraph I submit that 2 was cor- made clear substantive rectly decided the district court for neces- made it constitutional opinion. the reasons well stated in its proce- type sary inquire as to further discussion Some of the several employed: dure to be issues seems warranted. be whether inquiry “The initial must liberty property Russell Carl has a II. Cruel and Unusual Punishment. minimis, interest, greater than de majority The en banc holds that corporal punishment freedom from cruel and unusual clause of amendment such that the fourteenth Eighth applica- Amendment has no safeguards requires procedural some corporal punishment Only tion to administered imposition. arbitrary against its school children teachers or we must if an interest is found 630, regardless specific with administrators of the circum reference to the consti- severity punish phrase tutional stances or the “cruel unusual” as agree contrary Eighth Amendment, ment. I with used Chief Eighth in Bramlet v. Wil Justice Circuit Warren said: “The Amendment son, 1974, 717, 714, 495 F.2d for the rea must meaning draw its from the evolv- original ing decency sons stated in footnote 20 that mark to the standards of 259, opinion, 498 progress maturing society.” F.2d at 1974, The en banc majority Heyne, ref- In Nelson v. 7 Cir. makes brief 352, 976, erence to legislative history F.2d cert. denied U.S. history expres Amendment. That L.Ed.2d sketchy quoted sion applied and inconclusive at best. the Sev proposed “[s]chool, first ten amendments were enth Circuit to a located by Plainfield, states legislatures the several is a Indiana medium [which] September Congress security First state correctional institution for 15, boys and were ratified December eighteen years age, twelve to estimated one-third of whom are non criminal offenders.” Education, In Brown v. Board of (emphasis added). Cir Seventh 489, 490, cuit held that con L.Ed. Court discussed sisting beating juveniles with a fra history of the Fourteenth Amend- ternity paddle, causing painful injuries, respect ment with segregated schools cruel punishment. and unusual as of the time of adoption of that recognized While it the school was Amendment in 1868. The rationale both a correctional and an academic in applies discussion multiplied with (491 354), stitution F.2d at it did not intensity to the history exclude from its “non-crimi respect Amendment as of 1791 with nal offenders.” corporal public opinion schools. As the Brown demon- It likely in 1791 the federal strates, public in its education was infan- government meted solely out cy in 1868. In 1791 it was almost non- in retribution scope for crimes. The Warren, existent.1 Chief Justice writing greatly expanded Amendment was Brown, a unanimous Court in said: after binding became on the states through the Fourteenth Amendment. approaching problem, “In this we Resweber, Louisiana ex rel. Francis v. cannot turn the clock back to 1868 1947, 459, 463; 329 U.S. Robinson v. Cal when the adopted, Amendment was ifornia, 1962, 660, 666, 370 U.S. 82 S.Ct. even to Plessy Ferguson 1896 when v. 1417, 8 L.Ed.2d 758. The Seventh Cir 537, 1138, U.S. 16 41 L.Ed. [163 S.Ct. cuit in Nelson Heyne, supra, aptly v. was written. We must consider 256] that, called attention public light education in the of its full development present place and its in Gault, 1, “In re 15-16, 387 U.S. 87 throughout American life the Nation. 1428, 1437, (1967), S.Ct. 18 L.Ed.2d 527 Only way in this can it be determined the Court stated: “ if segregation public in schools de- early ‘The ap- reformers were prives plaintiffs equal these palled by procedures adult pen- and protection of the laws.” 347 at U.S. alties, and the fact that children 492-493, 74 S.Ct. at 691. given long prison could be sentences Similarly, Dulles, 1958, in Trop v. 356 and jails mixed in with hardened 86, 101, 590, 598, U.S. 2 L.Ed.2d criminals. . The child was Revolution, system lines of the time of the American educational 1. At were not predominantly private achieved until and de- schools were middle of the Nineteenth Britannica, Century. Encyclopedia His- Id. at 7 992. nominational. (1970). tory The main out- Education 991 province duty It “rehabilitated” has been and to be “treated” and apprehen- Marbury the federal courts since v. Mad procedures, and the from institutionalization, ison, 1803, (1 Cranch) 137, 2 L.Ed. through sion pu- interpret pro than “clinical” rather Constitution and were to be ” rights. tect constitutional presence The nitive.’ in courts alternative remedies at 358. F.2d should deter from judges federal there surprising that Thus it is not primary duty sup their defending history of the be so little in the should porting the Constitution. Cf. Monroe v. relating in to its Eighth Amendment Pape, U.S. S.Ct. effect on tended here L.Ed.2d 492. The claims for relief government Today, schools. were un brought by involved provides a greatly expanded and has der 42 U.S.C. which derives pub of social institutions multitude Rights the Civil Act of pun services. The lic administration construing landmark case Monroe longer confined to crimi ishment no Pape, supra, v. complaint alleged, in setting. employed pub It nal is now alia, ter Chicago police that thirteen offi schools, Wilson, supra; see lic Bramlet v. cers plaintiffs’ broke into the home delinquents, see Nelson v. homes early morning, routed them from Turman, supra, E.D. Heyne, Morales v. bed, them made stand naked in liv Tex.1974, 53, 70-72, F.Supp. and Col ing room, room, every ransacked N.D.Ill.1974, v. Bensinger, lins 374 emptying drawers ripping, mattress 273; institutions, F.Supp. mental see covers. 365 U.S. at S.Ct. D.Minn.1974, Likins, Welsch Like our 487; F.Supp. processing even were, among these acts Dulles, Trop passport applications, see conduct, other “essentially tortious based supra, 356 590. To U.S. on the battery.” commission of a paraphrase from Warren in Chief Justice possibility criminal law proceedings Brown, policemen tort claims these 686, in approaching problem, we in state court was found an to be no turn the to 1791. cannot clock back swer, as the federal remedy provided by majority’s objection ap- other 1983 is state supplementary to the plying punishment cruel and unusual 183, remedy. Id. at 473. On Eighth of the to clause Amendment score, that Pape, supra, Monroe v. appears case to be one of federalism: by followed McNeese v. Board of Educa “ by . tion, 668, if the force used de- 1963, 671, 672, 373 U.S. 83 S.Ct. disciplining plain- fendant teachers in 10 L.Ed.2d by many and deci allege, tiff was as severe plaintiffs as appeals sions of the courts of a Florida state find de- courts, court could district some of which are collect civilly criminally liable fendants ed in 42 U.S.C. 1983 n. 500. I cannot exceeding tortious the lev- conduct escape the conclusion that these severity by el authorized 232.27 of children have a to constitutional by County Fla.Stat.Ann. Dade freedom punish from cruel and unusual policy School Board 5144. basis of applied ment when state under color of is, however, actions tort and law, duty and that it is our as federal law, criminal not constitutional federal judges enforce right. to proper law. We find it nor neither III. Substantive Due Process. necessary expand to “ court 'alter- beyond district found that Amendment its intended and range par- native scope encompass measures use reasonable an ac- conferences, ent and student use of tion which is on the essentially based guidance psychologists, counselors and commission of a battery.” 525 F.2d available, suspension 915. where ex- ” (498 p. at 525 F.2d 917. pulsion.’ F.2d 264. also That is in See effect corporal hold that follows.) origi- footnote 32 which In the more se- than vere opinion, by panel majority nal we noted “circumscribed” Florida Statute that, § 232.27 Dade County Policy School Board apparently concede “The defendants done under Obviously color state law. corporal in Dade conduct school teachers or County relatively is a serious purportedly administrators exercised un- they ment. In their state that brief authority granted by der a state statute ‘Corporal punishment and school regulation board is not ex- Florida, County, schools of Dade is a cluded from federal constitutional scruti- discipline last resort means of as an ny simply severity because the expulsion to suspension alternative or * * * beatings exceeded prescription (Defendants’ Brief, p. 17.)” .’ state law. That implicitly, if not ex- at 498 F.2d pressly, Owen, held Baker v. supra. The administration of cruel and severe Bishop, also See Jackson v. 8 Cir. justi- punishment can never be 571, 579, 581, discussed in the severity fied. The circumstances original panel opinion at 498 F.2d beatings presently disclosed 262 n. Classic, United States undisputed evidence amounted arbi- 313 U.S. 61 S.Ct. capricious trary and unrelated to conduct L.Ed. criminal action any legitimate the achievement of edu- Louisiana election officials for falsifying conduct, purpose. cational exer- Such returns, election Court held law, deprived cised under color of state acting that defendants were under color property both and liber- of state law when they falsified the re- ty without law. acts, found, turns. These the Court I majority submit en banc were committed “in course of their opinion: errs in the following part of its performance of duties under the Louisi- “Having determined requiring ana statute them count the ballots, corporal punish- itself and count, record the result guide- certify and to circumscribed the result of the election.” Policy arbitrary, 325-326, lines is not at 61 S.Ct. at 1042- capricious, legitimate or unrelated to 1043. The Court further stated that: goals, look educational we refuse to power “Misuse possessed by virtue each individual instance of state law and possible only made to determine if it has been adminis- wrongdoer because the is clothed with arbitrarily tered capriciously. We authority law, of state is action judicial power think it a misuse of our taken ‘under color of’ law. [Ci- determine, example, whether a tations Id. omitted.] pad- teacher has acted arbitrarily in at 1043. dling particular a be- child for certain Pape, supra, In Monroe v. this definition- havior particular or whether in a in- al view of the words “under color of” stance of five licks would misconduct adopted rights was for the civil action have appropriate been more provided by 1983. 365 U.S.C. U.S. again ment than We note ten licks. 184, 185, at Clearly, S.Ct. 1031. or criminal possibility of civil teachers and who administrators admin- teacher against action in state court spankings istered the case did so child.8 excessively punished who has under color of state The law. fact that “8 Indeed, Policy during as effective they might power have misused the vest- 1970-71, part: person provides in ‘The admin- by ed them the state to administer istering corporal punishment realize must corporal punishment by inflicting more personal his own if the be- liabilities student blows and blows pre- more severe than ing given corporal punishment physically ” injured.’ scribed does not alter basic fact by original panel beatings performed recognized offi- were the diffi- these culty, perhaps or authority. impossibility, of con- clothed with state cials trolling the severity corporal punish- discussing Monroe Pape, supra, (498 26). F.2d at 262 n. I history Rights of the legislative Civil submit that arbitrary, excessive and gave birth to U.S.C. Act severe corporal punishment by disclosed 1983, commented: plaintiffs’ evidence, thus far undis- “ the remedy . was created puted, amounts to a denial of substan- remedy against not a it Ku Klux [the tive due of law. or its those members but Klan] representing who in some ca- a State IV. Procedural Due Process. pacity were to en- unable or unwilling a state law. force light In the of the opin- district court’s Likewise, phasis that of the was their lack of with the was the nub of the 175-176, 81 S.Ct. at 478. “There $ in the ^[*] was, present it was laws on the books. ^[*] Court.) enforcement difficulty.” ^[*] case, said, there is no is” test. The two tests were contrasted ^[*] no quarrel U.S. (Em- ^[*] at It “severe and cumstances and hearing of some kind under either the nied disclosed such as to require ion clear in Baker procedural by grievous” plaintiffs’ severity due Owen, the basic process. have been de- evidence were “de minim- it seems The cir- beatings to a quarrel with restrictions on the se- latest pronounce- verity expressed procedural ment on process, Goss v. in the Florida 232.27 and those Statute Lopez, U.S. Policy 5144. “It stated in the Board was 42 L.Ed.2d and the de minimis test lack of enforcement that was the their adopted, long “that property as a difficulty.” nub of the at deprivation is not de minimis, gravity its 478. The district court found is irrelevant question whether account must be taken of the Due Proc- “ ess ‘There has been a rather Clause.” wide- 419 U.S. at spread (citations failure to adhere omitted). to School policy corporal regarding Board In the posture of this stu- punished ishment. Teachers have undisputed evidence discloses much more consulting with dents without first than a de minimis proper- respective their principals. More ty rights. It deprivations shows of liber- have blows been administered to stu- ty, probability psychological of severe ” policy.’ dents than authorized physical injury, punishment per- 498 F.2d at 254. sons who protesting were their inno- cence, original panel properly deemed for no offense what- ever, important “more to know how far more severe than warranted actually offense, the gravity administered than and all without regula- slightest to know rules or the relevant notice or opportunity for any tions.” 498 F.2d at 261. The en banc hearing. kind of Repetition sharply the majority separate examples would a few should suffice. Ingraham moderate kind of James claimed that he authorized the Florida Statute innocent and pad- refused to be Principal beat- died. Policy Wright the severe Board administered at ings plaintiffs Roo- licks,2 administered to the least twenty while Assistant Prin- Ingraham cipals sevelt Andrews and James Deliford and Barnes held James and to a few other his arms legs students. placed him strug- 2. Four times the five licks held to constitute cruel and unusual in Nelson v. Heyne, 491 F.2d at 354. hearing, for the any without kind table. gling face down across a “The or for what- slightest offense no offense Ingra- found that district court James respect- strongly disagree soever. I a ham ‘received 20 licks with wooden fully dissent. paddle, produced painful which se- (R. rious hematoma on his buttocks.’

1561).” 498 F.2d at 256 n. “On Oc- days

tober eight paddling, after

this doctor indicated that James should

rest at home ‘for next 72 hours.’ James painful

testified even to lie following

on his back days not

paddling, and that he sit com- could (Tr. fortably about three weeks Ruby al., CONWAY et 149).” 498 F.2d at 256. Was James’ loss Plaintiffs-Appellees, days of more than 10 from school property less a because it beating

resulted from instead of for- LINES, CHEMICAL LEAMAN TANK suspension? mal INC., Defendant-Appellant, pad- Andrews’ numerous Roosevelt Fidelity Casualty Company & more dlings were for offenses no serious York, Intervenor-Appellee. New “dressing being late or out” than No. 74-2856. (498 256). on one Roosevelt oc- F.2d innocent and that he was casion insisted United Appeals, States Court of pushed over. Barnes refused to bend Fifth Circuit. hit him on him urinals and Jan. arm, com- his back neck. Roosevelt but plained Principal Wright, no 257). (498

avail F.2d Lee was four or five

Daniel struck

times on the hand for no offense what- and, X-rayed

ever. His hand ac- Daniel, right

cording to his bone

hand was found to fractured. The enlargement judge

district observed an 258). (498

of his Oth- knuckle F.2d procedural

er instances of violation of process are

due set out in F.2d at

258, 259. case The brutal facts of this swept rug.

should not be under

Clearly, according presently undis- to the evidence,

puted have been

subjected cruel unusual law, they ment. Under color of state deprived of both arbitrarily

have been liberty. clearly, more

property and Even

they procedural have been denied

process. precedent to be set the en banc

majority is have no children pro- rights

federal constitutional

tect beatings them from cruel and severe law,

administered color of

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: Jan 8, 1976

Citation: 525 F.2d 909

Docket Number: 73--2078

Court Abbreviation: 5th Cir.