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Spare the Rod,Save a Child:Why the Supreme SPARE THE ROD, SAVE A CHILD: WHY THE SUPREME COURT SHOULD REVISIT INGRAHAM V. WRIGHT AND PROTECT THE SUBSTANTIVE DUE PROCESS RIGHTS OF STUDENTS SUBJECTED TO CORPORAL PUNISHMENT Lekha Menon† TABLE OF CONTENTS INTRODUCTION .................................................................................................................314 I. BACKGROUND ............................................................................................................319 A. The Ingraham Case and the Court’s Decision ...........................................319 1. The Constitutional Claims Under the Eighth and Fourteenth Amendments ................................................................320 2. The Court’s Focus on Societal Norms of the 1970s and Lack of Legislative Action .........................................................................323 B. Corporal Punishment: A Historical Context ..............................................324 II. THE COUNTRY HAS CHANGED SINCE INGRAHAM ..................................................325 A. Corporal Punishment in America Today: A Distinct Change from the Time of Ingraham ...................................................................................326 B. Today, Corporal Punishment is Less Popular but Still Prevalent ............327 C. A Need for Constitutional Protection for Students ...................................330 III. LIFTING CONSTITUTIONAL LIMITS ON CHALLENGES TO CORPORAL PUNISHMENT IN THE NATION’S PUBLIC SCHOOLS ..................................................331 A. The Post-Ingraham Landscape: The Fourth Circuit Hall Standard .......332 B. A Split Among Courts: How Circuit Courts Have Addressed Substantive Due Process Challenges Without Guidance from the † Editor-in-Chief, Cardozo Law Review. J.D. Candidate (June 2018), Benjamin N. Cardozo School of Law; B.A. Columbia University, 2010. This Note owes much to the guidance of Professor Betsy Ginsberg. Thank you for your thoughtful feedback and for being so generous with your time. A special thank you to the editors of the Cardozo Law Review, especially Monica Chung, Lyuba Shamailova, Chelsea Donenfeld, Renee Shafran, and my Notes Editor, Lauren Kobrick. To all of my parents, Zoë, and Sagar, thank you for your constant support and unwavering patience. I am forever grateful for your love and encouragement. Prior to attending law school, I was a middle school teacher in New Orleans, Louisiana. To all of my former students, thank you for everything you taught me along the way. All mistakes are my own. 313 314 CARDOZO LAW REVIEW [Vol. 39:313 Supreme Court ..............................................................................................335 IV. PROPOSAL: RECOGNIZING SUBSTANTIVE DUE PROCESS AS A VALID CONSTITUTIONAL CHALLENGE TO CORPORAL PUNISHMENT ...............................340 A. Possible Objections ........................................................................................341 CONCLUSION......................................................................................................................342 INTRODUCTION Trey Clayton was an eighth-grade student in his first year at Independence High School in Coldwater, Mississippi.1 His grades were satisfactory, and he had no attendance issues. Upon arriving at his morning English class, Clayton saw another student in his assigned seat and took another seat instead. Because he was not in his assigned seat, the teacher sent him to the library. While he sat in the library, the school’s Assistant Principal, Jerome Martin, approached Clayton and told the student that his alleged bad behavior was going to stop. Martin took Clayton to his office, and in the presence of another Assistant Principal, Martin used a paddle to strike the student three times on the buttocks. Martin used such “excessive and great force” that the paddling left visible bruising and welts on the student’s body. Additionally, the paddling was so severe that immediately after being struck, Clayton fainted and fell on his face onto the concrete floor. Clayton eventually regained consciousness, but he was still bleeding and five of his teeth were shattered. Although the student was visibly in pain and sustained serious injuries, Martin and other school personnel declined to call emergency services and instead contacted Clayton’s mother, Dana Hamilton, and without detailing the nature of her son’s injuries, asked her to pick him up from school. Upon her arrival, Hamilton immediately took her son to a hospital where a CT scan showed that Clayton’s chin had been split and that he suffered a broken jaw. Clayton’s chin required ten stitches, and he was transferred to another out-of-state hospital for surgery. His jaw was wired shut for two weeks, and he could consume only liquid meals through a straw. Clayton’s injuries caused him to miss school for four weeks.2 Although this episode of corporal punishment sounds like a story from the colonial period, the event took place in 2014 in a public school in Mississippi. The events described may appear to be an extreme 1 Clayton ex rel. Hamilton v. Tate Cty. Sch. Dist., 560 F. App’x 293, 295–97 (5th Cir. 2014) (per curiam) (holding that circuit precedent foreclosed the student’s substantive due process claim). Unless otherwise noted, all background related to Clayton’s story comes from the court’s opinion or the Complaint. See Complaint, Clayton ex rel. Hamilton v. Tate Cty. Sch. Dist., 560 F. App’x 293, 295–97 (5th Cir. 2014) (No. 11CV181-P-V). 2 Complaint, supra note 1. 2017] SPARE THE ROD, SAVE A CHILD 315 example of a school administrator abusing his authority; however, Clayton’s case is an example of the type of corporal punishment used in many school districts in the United States.3 Additionally, this case illustrates the inability of many students to seek redress for actions that intrude on their constitutionally protected right to bodily integrity.4 The history of corporal punishment in an academic setting must be understood in the context of the development of the American public school system and compulsory education for children. The Framers of the Constitution recognized the importance of an educated electorate.5 Although the Constitution makes no reference to education or to the right of children to attend schools, the critical role of the educated citizen was never overlooked.6 Having a knowledgeable, sophisticated constituency was understood to be essential for maintaining a democratic republic.7 Parents and guardians send their children to school trusting that educators and school administrators will do their part to help develop students into productive citizens who will make positive contributions to society and who will contribute to a shared, workable democracy.8 The American public school system dates back to 1779 when Thomas Jefferson proposed the “Bill for the More General Diffusion of 3 See Corporal Punishment in Schools and Its Effect on Academic Success, HUMAN RIGHTS WATCH (April 15, 2010, 6:52 PM), https://www.hrw.org/news/2010/04/15/corporal- punishment-schools-and-its-effect-academic-success-joint-hrw/aclu-statement; see also Kirkland ex rel. Jones v. Greene Cty. Bd. of Educ., 347 F.3d 903 (11th Cir. 2003) (high school principal struck student with a metal cane); Hale v. Pringle, 562 F. Supp. 598 (M.D. Ala. 1983) (third-grade student who fought with another student was spanked with a paddle three-to-five times, resulting in visible bruising of his buttocks and hand); Booker v. Bd. of Educ., 65 N.E.3d 380 (Ill. App. Ct. 2016) (holding that an elementary school teacher was properly dismissed after incidents where the teacher slapped and grabbed students); Crews v. McQueen, 358 S.E.2d 712 (Ga. Ct. App. 1989) (eight-year-old student spanked for failing to turn in a homework assignment). 4 Clayton, 560 F. App’x at 297–98 (holding that the student’s procedural and substantive due process claims were foreclosed by precedent and that the student failed to state a claim for a violation of the Equal Protection Clause). 5 Denise A. Hartman, Constitutional Responsibility to Provide A System of Free Public Schools: How Relevant Is the States’ Experience to Shaping Governmental Obligations in Emerging Democracies?, 33 SYRACUSE J. INT’L L. & COM. 95, 96 (2005) (noting that although the constitutional framers believed that an educated electorate was vital to maintaining the Republic, they also understood that “they lacked the experience and judgment to impose national responsibility for public education”; therefore, this responsibility was left to the states). 6 Id. at 95. 7 Id.; see also Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 230 (1963) (Douglas, J., concurring) (“Americans regard the public schools as a most vital civic institution for the preservation of a democratic system of government.”). 8 See Wisconsin v. Yoder, 406 U.S. 205, 221 (1972) (accepting the State’s propositions that compulsory education is “necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence” and that “education prepares individuals to be self-reliant and self-sufficient participants in society”); see also Pierce v. Soc’y of Sisters, 268 U.S. 510, 534 (1925) (“No question is raised concerning the power of the state reasonably to regulate all schools . to require . that certain studies plainly essential to good citizenship must be taught . .”). 316 CARDOZO LAW REVIEW [Vol. 39:313 Knowledge.”9 Jefferson recognized that the success of the newly-formed
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