“We note again the possibility of a civil or criminal action in state court against a teacher who has excessively punished a child.”
How later courts described this case
- “We note again the possibility of a civil or criminal action in state court against a teacher who has excessively punished a child.”
- “We concur with the approach taken . by the two district courts that have held the Eighth Amendment to be inapplicable to corporal punishment in public schools.“
Written by the judges who cited it.
The opinion
GEWIN, Circuit Judge
(concurring in the result).
Although I am in full agreement with the majority’s resolution of the merits of this case, it is my considered judgment that the jurisdictional statement in the opinion is not in accord with recent decisions of our court. Accordingly, I concur in the majority’s affirmance of the district court’s dismissal of the complaint, but do not fully agree with the jurisdictional statement.
The majority is quite correct in its conclusion that school boards are often considered to be either arms of or in the nature of municipalities. Hence, under the “non-person” rule of City of Kenosha v. Bruno, 412 U.S. 507 , 93 S.Ct. 2222 , 37 L.Ed.2d 109 (1973), school boards as entities are not subject to suit under § 1983 1 and its jurisdictional statute, § 1343. 2 Likewise, the majority opinion is equally correct in its conclusion that a school superintendent is a “person” liable to suit under § 1983.
However, I disagree with the majority’s indication that merely because § 1983 jurisdiction over the school board in this case does not exist, there is a lack of jurisdiction in every case involving school boards. We have recently held 3 that, despite the fact that § 1983 jurisdiction over a school board may not be present in a given instance, jurisdiction may be proper under § 1331. 4
Since I agree with the majority that appellants have not asserted a constitutional claim for relief, 5 the dismissal was proper because § 1331 is of no aid in the absence of such a claim. I do not agree that the mere failure to state a § 1983 claim automatically defeats federal jurisdiction under § 1331.
. 42 U.S.C. § 1983 .
. 28 U.S.C. § 1343 .
. E.g., Roane v. Callisburg Independent School District, 511 F.2d 633 , 635 n.1 (5th Cir. 1975) (citations omitted); Kelly v. West Baton Rouge Parish School Board, 517 F.2d 194, 197 (5th Cir. 1975) (citations omitted). Other circuits have utilized the same rationale in holding that Kenosha does not bar § 1331 jurisdiction over a municipality, Brault v. Town of Milton, 527 F.2d 730 (2d Cir. 1975) [No. 74-2370, Feb. 24, 1975], or a county, Cox v. Stanton, 529 F.2d 47 (4th Cir. 1975) [No. 74-2218, Oct. 6, 1975],
. 28 U.S.C. § 1331 .
. Although we have not hesitated to find due process and equal protection violations in a variety of circumstances involving schools, e. g., Lansdale v. Tyler Junior College, 470 F.2d 659 (5th Cir. 1972) (en banc) (potential college students not allowed to register because of hair length), cert. denied, 411 U.S. 986 , 93 S.Ct. 2268 , 36 L.Ed.2d 964 (1973), certainly we must have scrupulous regard for principles of federalism in extending the reach of “constitutional common law.” See generally Monaghan, Constitutional Common Law, 89 Harv.L. Rev. 1, 45 (1975) (“The general guarantees of due process and equal protection are so indeterminate in character that to develop on their authority a body of subconstitutional law would be to go beyond implementation to recognize a judicial power to create a sub-order of liberties without any ascertainable constitutional reference points”) (emphasis in original).