# Gaspersohn Ex Rel. Gaspersohn v. Harnett County Board of Education > Court of Appeals of North Carolina · June 4, 1985 · 75 N.C. App. 23 URL: https://www.frixlaw.com/law-library/cases/9591430 ## Case - **Full name:** SHELLY S. GASPERSOHN, by and Through ARNOLD GASPERSOHN, Guardian Ad Litem v. HARNETT COUNTY BOARD OF EDUCATION AND GLENN VARNEY - **Court:** Court of Appeals of North Carolina - **Decided:** June 4, 1985 - **Citations:** 75 N.C. App. 23; 330 S.E.2d 489; 1985 N.C. App. LEXIS 3606 - **Precedential status:** Published - **Opinion:** Concurrence by Whichard - **Judges:** Webb, Hedrick, Whichard - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9591430 ## Opinion text Judge WHICHARD concurring in the result. I agree with the majority that: State v. Pendergrass, 19 N.C. 365, 367-68 (1837), permits corporal punishment without criminal liability “however severe the pain inflicted, and however . . . disproportionate to the alleged . . . offense” if the punishment does not produce permanent injury or was not inflicted to gratify the educator’s malice; and that Drum v. Miller, 135 N.C. 205, 205 , 47 S.E. 421, 422 (1904), enlarges upon the law by permitting the educator to inflict permanent injury without civil liability (there “inflicting a very painful and serious wound, and causing partial, if not total, blindness” by throwing a pencil at a student) if done *36 without malice and in the exercise of lawful authority, unless the injury is reasonably foreseeable. I do not agree, however, that the court properly relied on Pendergrass and Drum exclusively in defining reasonableness as used in G.S. 115C-390. I disagree on the basis of my reading of In-graham v. Wright, 430 U.S. 651 , 51 L.Ed. 2d 711 , 97 S.Ct. 1401 (1977), and what appears to be the legislative intent behind the enactment of G.S. 115C-390. The Court in Ingraham held that the Eighth Amendment did not apply to disciplinary corporal punishment of public school children, id. at 664 , 51 L.Ed. 2d at 725-26 , 97 S.Ct. at 1409 , and that due process did not require prior notice and a hearing. Id. at 682 , 51 L.Ed. 2d at 737 , 97 S.Ct. at 1418 . It so held, in part, because it determined that teachers and administrators are subject to the legal constraints of the common law whereby any punishment exceeding that reasonably necessary for the proper education and discipline of the child could result in civil and criminal liability under state law, id. at 677 , 51 L.Ed. 2d at 734 , 97 S.Ct. at 1415 , and because it determined that these common law remedies were sufficient without advance procedural safeguards. Id. at 680 , 51 L.Ed. 2d at 735-36 , 97 S.Ct. at 1417 . In discussing the common-law test of reasonableness the Court noted that “early cases viewed the authority of the teacher as deriving from the parents.” Id. at 662 , 51 L.Ed. 2d at 724 , 97 S.Ct. at 1407 . See, e.g., Pendergrass, 19 N.C. at 365 (“[T]he power which the law grants to schoolmasters and teachers, with respect to the correction of their pupils ... is analogous to that which belongs to parents, and the authority of the teacher is regarded as a delegation of parental authority.”); see also Drum, 135 N.C. at 153 , 47 S.E. at 425 . “The concept of parental delegation,” the Court noted, however, “has been replaced by the view — more consonant with compulsory education laws — that the State itself may impose such corporal punishment as is reasonably necessary. . . .” Ingraham, 430 U.S. at 662 , 51 L.Ed. 2d at 724 , 97 S.Ct. at 1407 . Thus, corporal punishment is not contingent on parental approval. See, e.g., Baker v. Owen, 395 F. Supp. 294 (M.D.N.C. 1975), aff’d, 423 U.S. 907 , 46 L.Ed. 2d 137 , 96 S.Ct. 210 (1975). I believe G.S. 115C-390 was enacted in 1955 not to codify the 1837 and 1904 case law of Pendergrass and Drum , but to legislate *37 a new standard, that of “reasonable force” in the exercise of lawful authority to restrain or correct pupils and maintain order in the public schools. While the absence of permanent injury or disfigurement, foreseeable permanent injury, or malice may be evidence of the reasonableness of the force used, I do not believe instructions which refer to these elements alone are adequate under the statute. Rather, the court should allow evidence and instruct according to the guidelines the United States Supreme Court provides in Ingraham: All of the circumstances are to be taken into account in determining whether the punishment is reasonable in a particular case. Among the most important considerations are the seriousness of the offense, the attitude and past behavior of the child, the nature and severity of the punishment, the age and strength of the child, and the availability of less severe but equally effective means of discipline. Ingraham, 430 U.S. at 662 , 51 L.Ed. 2d at 724-25 , 97 S.Ct. at 1408 . See also Baker, 395 F. Supp. 294, 297 (“reasonable” and “lawful” in the North Carolina statute embody traditional tort concept of privilege to use only that force necessary under the circumstances). I thus find the instructions based solely upon Pendergrass and Drum , and not incorporating the foregoing from Ingraham, inadequate. I do not find, however, that plaintiff has carried her burden of showing prejudice therefrom. Given the facts — plaintiffs age and level of maturity, her specific repeated requests to receive “licks” instead of in-school suspension, the assistant principal’s hesitancy to administer corporal punishment and his reduction of the number of “licks” administered, and the brevity of the discomfort suffered by plaintiff — I do not believe the jury would have rendered a different verdict on different instructions. I therefore concur in the result. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9591430. Public record. Not legal advice.