Petition — Ingraham v. Wright

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IN THE SUPREME COURT, th:

SUPREME COURT OF THE UNITED STATES

a ¢ free mm

se h\, 4

MISC. NO, Wet ty

October Term, 1975

JAMES INGRAHAM, by his mother and next

friend, ELOISE INGRAHAM and ROOSEVELT

ANDREWS, by his father and next friend,

WILLIE EVERETT,

Petitioners,

-Vs —

WILLIE J, WRIGHT, I; LEMMIE DELIFORD;

SOLOMON BARNES; EDWARD L. WHIGHAM and;

THE DADE COUNTY SCHOOL BOARD,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS, FIFTH

CIRCUIT

BRUCE S. ROGOW

Nova University Center for the

Study of Law

3301 College Avenue

Fort Lauderdale, Florida

HOWARD W. DIXON

PETER M. SIEGEL

WILLIAM J. FLANAGAN

Legal Services of Greater Miami, Inc.

395 N. W. First Street

Miami, Florida

COUNSEL FOR PETITIONERS

TABLE OF CITATIONS AND OTHER AUTHORITIES

PAG!

OPINION ae RE TE EE EE PTT OT ne l

ees tpi eg PRET TE EE TE OP PTET Terre errr ee 2

QUESTIONS PRESENTED FOR REVIEW.................. 2

CONSTITUTIONAL PROVISIONS INVOLVED.............. 2

STATEMENT OF THE CASE......ccccccccccccccucccuce 3

REASONS FOR GRANTING THE WRIT............0ccc0-, 7

SES Es 6 Hh EN ibe dee te cn uke wendewbuien Jas 13

CASES

BAKER V. OWEN,

395 F.Supp. 294 (M.D. N.C. 1975), aff'd

_U.S.__, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975)

BATES V. CITY OF LITTLE ROCK,

361 U.S. 516, 524 (1960)

BOARD OF REGENTS V. ROTH,

408 U.S. 564, 558 (1972)

BRAMLETT V. WILSON,

495 F.2d 714 (8th Cir. 1974)

GLASER V. MARIETTA,

351 F.Supp. 555 (W.D. Pa. 1972)

GONYAW V. GRAY,

361 F.Supp. 366 (D. Vt. 1973)

GOSS V. LOPEZ,

419 U.S. 565 (1975)

GRISWOLD V. CONNECTICUT,

381 U.S. 479, 497 (1965)

NELSON V. HYNE,

491 F.2d 352 (7th Cir. 1974), cert.

denied,

417 U.S. 976 (1974)

SHELTON V. TUCKER,

364 U.S. 479, 488 (1960)

SIMS V. BOARD OF EDUCATION,

329 F.Supp. 678 (D. N.M. 1971)

SIMS V. WALN,

385 F.Supp. 543 (S.D. Ohio 1974)

SKINNER V. OKLAHOMA,

316 U.S. 535, 541 (1941)

WARE V. ESTES,

328 F.Supp. 657 (N.D. Tex. 1971), aff'd per

curiam, 458 F.2d 1360 (5th Cir. 1972)

WHATLEY V. PIKE COUNTY BOARD OF EDUCATION,

Civil Action No. 977 (N.D. Ga. 1971)

WISCONSIN V. CONSTANTINEAU,

400 U.S. 433, 437 (1971)

PAGE

passim

9, 10

STATUTES

Title 28 U.S.C.

Title 28 U.S.C,

Title 42 U.S.C.

§1331

§1343

§§1981-1988

PAGE

IN THE

SUPREME COURT OF THE UNITED STATES

en »

MISC. NO. 4 5 “Cer &

October Term, 1975

JAMES INGRAHAM, by his mother and next

friend, ELOISE INGRAHAM and ROOSEVELT

ANDREWS, by his father anc next friend,

WILLIE EVERETT,

Petitioners,

-“VS-

WILLIE J. WRIGHT, 1; LEMMIE DELIFORD,

SOLOMON BARNES; EDWARD L. WHIGHAM and;

THE DADE COUNTY SCHOOL BOARD,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS, FIFTH

CIRCUIT

The Petitioners, by undersigned counsel, respectfully

request that a Writ of Certiorari issue to review the judgment

and opinion of the United States Court of Appeals for the Fifth

Circuit entered on January 8, 1976.

OPINION BELOW

The opinion of the Court of Appeals, en banc, is reported

at 525 F.2d 909. The original panel decision, which held in

favor of the Petitioners, is reported at 498 F.2d 248. Copies

of both opinions are appended to this Petition.

-|-

JURISDICTION

The judgment of the Court of Appeals was entered on

January 8, 1976. This Petition was timely filed. The jurisdiction

’

of this Court is based upon Title 28 U.S.C. §1254(1).

QUESTIONS PRESENTED FOR REV LEW

DOES THE INFLICTION OF SEVERE CORPORAL

PUNISHMENT UPON PUBLIC SCHOOL STUDENTS,

ABSENT NOTICE OF THE CHARGES FOR WHICH

PUNISHMENT IS TO BE 1LNFLICTED AND AN

OPPORTUNITY TO BE HEARD, VIOLATE THE oped |

PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT:

DOES THE CRUEL AND UNUSUAL PUNISHMENT

CLAUSE OF ‘THE EIGHTH AMENDMENT APPLY

TO THE ADMINISTRATION OF DISCIPLINE .

THROUGH SEVERE CORPORAL PUNISHMENT be

FLICTED BY PUBLIC SCHOOL TEACHERS AND ve

ADMINISTRATORS UPON PUBLIC SCHOOL CHILDREN:

Ill

IS THE INFLICTION OF SEVERE CORPORAL.

PUNISHMENT UPON PUBLIC SCHOOL STUDENTS

ARBITRARY, CAPRICIOUS AND UNRELATED r¢

ACHIEVING ANY LEGITIMATE EDUCATIONAL

PURPOSE AND THEREFORE VIOLATIVE OF THE

DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT?

CONSTITUTIONAL PROVISIOi. cLNVOLVED

AMENDMENT VILT

Excessive bail shall not be required,

nor excessive fines imposed, nor crue.

and unusual punishments inflicted.

AMENDMENT XLV

nor shall any state deprive any person

of life, liberty or property without due

process of law,

STATEMENT OF THE CAL

_-- -

On January 7, 1971, the petitioners filed a three

count complaint in the United States District Court for the

Southern District of Florida seeking compensatory and punitive

damages for personal injuries resulting from corporal punish-

ment administered to them by certa!. Dade County, Florida public

school teachers and administrators. The complaint alleged

violations of Title 42 U.S.C. §§1981-1988 and jurisdiction was

based upon Title 28 U.S.C. §§1331 and 1343. Count three of the

complaint sought declaratory and injunctive relief against the

use of corporal punishment in Dade County public schools. All

of the federal claims were based upon the alleged denial cf

Eighth and Fourteenth Amendment rights arising from the infliction

of corporal punishment.

The claim for declaratory and iniunctive relief was

heard in a week long trial before the district court. At the

close of the plaintiffs' evidence, which consisted of sixteen

students, several parents and relatives of students, an educationa!

psychology professor and a number of school teachers and

administrators, in addition to substantial documentary evidence,

the defendants successfully moved for dismissal under the perti-

nent portion of Rule 41(b), Federal Rules of Civil Proccdure.

That Section provides: "After the plaintiff, in an action

tried by the court without a jury, has completed the presenta-

tion of his evidence, the defendant, without waiving his right

to offer evidence in the event the motion is not granted, may

move for a dismissal on the ground that upen the facts and the

law the plaintiff has shown no right to relief. The court as

trier of the facts may then determine them and render judgment

against the plaintiff or may decline to render any judgment

until the close of all the evidence. If the court renders

judgment on the merits against the plaintiff, the court shal!

make findings as provided in Rule 52(a). Unless the court 1a

its order for dismissal otherwise specifies, a dismissal under

this subdivision and any dismissal not provided for in this rule,

other than a dismissal for lack of jurisdiction, for improper

venue, or for failure to join a perty under Rule 19, operates

as an adjudication upon the merils.

The original panel decision, 498 F.2d at 25]

summarizes what transpired next:

The district court noied in its

order that counsel for the parties

then agreed that the evidence of-

fered to support County Three

"would also be considered by the

Court, as if upon motion for directed

verdict, as having been offered on

Counts One and Two, provided that

certain additional testimony desired

by Plaintiffs’ counsel were placed

in the record by deposition or

stipulation.” Thus, this case really

involves one equity case, styled

Counts One and Two. The additional

testimony was summarized in a stipulation.

On February 23, 1973, the district court

first dismissed Count Three of the

complaint, and then concluded that a

jury could not lawfully find that either

of the plaintiffs in Counts One and Two

sustained a deprivation of constitutional

rights.

An appeal was taken to the Fifth Circuit from the order of

dismissal.

That appeal resulted in the original panei decision,

498 F.2d 248, which held thet the Eighth Amendment's prohibition

against cruel and unusual punishment applied to the paddling

practiced by the defendants Wright, Deliford and Barnes at

Drew Junior Higk School. The Court also held that those practices

violated both procedural and substantive due process. 498 F.2d

at 269.

The panel took nearly five pages of its opinion to

detail the undisputed facts upon which its conclusions were based.

498 F.2d 255-259. Some examples are set forth below:

On October 6, 1970, a number of

students including fourteen year

old James Ingraham, a named

plaintiff, were slow in leaving

the stage of the school auditorium

-¢

when asked to do so by a teacher.

A number of boys and girls involved

in this incident were taken to the

principal's office and paddled. James

protested, claiming he was innocent,

and refused to be paddled. Willie J.

Wright, I, the principal called for

the assistance of Lemmie Deliford, the

assistant principal in charge of ad-

ministration, and Solomon Barnes, an

assistant to the principal. Barnes

and Deliford held James by his arms

and legs and placed him, struggling,

face down across a table. Wright

administered at least twenty licks.

After the paddling, Wright told James

to wait outside his office --'he said

if I move he was going to bust me on

the side of my head' -- but James went

home anyway.

498 F.2d at 255-256 (footnote omitted).

Young Ingraham required repeated medical treatment as

a result of the injuries. Eight days after the paddling a

doctor advised 72 hours of rest at home. It was three weeks before

Ingraham could comfortably sit again. 493 F.2d at 256.

Roosevelt Andrews testified that defendant Barnes,

angry at him for a comment:

"pushed me against the urinate thing,

the bowl, and then he snatched me

around to it and that's when he hit

me first. He first hit me on the back-

sides and then I stand up and he pushed

me against the bathroom wall, them things--

that part the bathroom, the wall * * *

Between the toilets, he pushed me against

that and then he snatched me from the

back there and that's when he hit me

on my leg, then hit me on my arm, my

back and then right across my neck,

in the back here."

(Tr. 295.) Incensed over his treatment,

Roosevelt complained to Wright, but

Wright seemed to support Barnes, his

co-administrator.

498 F.2d at 257.

On another occasion Andrews required medical treatment and .

lost the use of his arm for a week when paddled and hit on

the wrist by Wrighc. 498 F.2d at 257.

A third boy's testimony was described this way:

Daniel Lee, who was paddled lots

of times (Tr. 463) at Drew, de-

scribed how on one occasion Barnes

had a number of students in a line,

holding onto the chair, already

* paddling them, and asked him to come

over and ‘get a little piece of the

board.’ (Tr. 480-481.) Daniel asked

what he had done, and Barnes allegedly

grabbed him and tried to throw him on

the chair. In the ensuing confusion,

Barnes hit Daniel on the hand four or

five times. The hand swelled and hurt

and the bone was--it seems like the

bone was going to come out (Tr. 481),

so Daniel's mother took him to the

hospital for an X-ray. According to

Daniel, 2 bone in his right hand was

fractured. The Court, observing

Daniel's hand, stated that 'It seems

to me to be disfigured, a portion of

his right knuckle is enlarged to some

degree.’ Daniel claimed that his hand

still hurt, and swelled if he tried to

use it.

498 F.2d at 257-258.

Not only was paddling a daily event 498 F.2d at 257,

but the assistant principals, Deliford and Barnes, were seen carryin:

brass knuckles. 498 F.2d 257, n. 16.

A complete view of the reign of terror which existed

at Drew Junior High School can only be gleaned from the panel

description at 255+259.

Finding that the plaintiffs' evidence entitled them to

a full trial, the panel reversed the district court's order of

dismissal. 498 F.2d 265-266.

Thereafter, the defendants were successful in

obtaining an en banc rehearing of the original panel decision.

On rehearing, the full Fifth Circuit reversed the panel decision

and held, 10-5, that the cruel and unusual punishment clause

of the Eighth Amendment had no application to public school

discipline whether or not that discipline was "excessively

administered." 525 F.2d at 915. The Court also concluded that

"procedural safeguards accompanying the use of corporal punish-

ment in public schools are not constitutionally mandated"

525 F.2d at 918, and corporal punishment, having a "real and

substantial relation to the object sought to be attained

[discipline]", substantive due process was not offended. 525

F.2d at 916-917. The district court's dismissal of the complaint

was affirmed.

This Petition for Writ of Certiorari seeks review of

that decision.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Presents Important

Constitutional Questions Which Have Not

Been, But Should Be, Resolved by this

Court.

A. The Procedural Due Process Issue.

This Court has held that an Ohio Statute which

authorized suspension of public school students for up to ten

days without notice. of their alleged offenses and an opportunity

to be heard violated the students’ right to procedural due

process under the Fourteenth Amendment. Goss v. Lopez, 419

U.S. 565 (1975). The Court found that the students had a sub-

Stantial property right to their education and that the right

could not be withdrawn, even temporarily, absent minimal due

“/

process protections. However, the Court has not decided if

public school students, faced with a deprivation of substantial

rights to liberty - the rights to be free from severe physical

and emotional punishment - must also be accorded due process

protections.

In Baker v. Owen, U.S. , 96 S.Ct. 210, 46 L.Ed.2d

137 (1975) the Court's summary affirmance without opinion was

limited to that portion of the lower court's judgment which held

that the North Carolina Statute permitting reasonable corporal

ommmeuus” 1 public school students over parental objection

was valid. The issues of procedural due process, which the

three-judge court resolved in favor of the students, Baker v.

Owen, 395 F.Supp. 294 (M.D. N.C. 1975), were not before this Court.

Therefore the important constitutional question of what process

is due a public school student upon whom severe corporal

punishment is inflicted has not been decided by the Court. This

case presents that issue.

B. The Cruel and Unusual Punishment Issue.

The Court has not decided if the Eighth Amendment's

prohibition against cruel and unusual punishment applies to the

‘

The question presented by the plaintiffs' appeal was:

Does constitutional concept of familial

privacy bar school officials from whipping

school children over parental objection?

Baker v. Owen, No. 75-279, 44 L.W. 3142.

— ry

infliction of discipline to public school children through

severe corporal punishment. The lower court in Baker v. Owen

did not reach the cruel and unusual issue, saying:

In short, this record does not

begin to present a picture of

punishment comparable to that

in Ingraham [v. Wright, 498

F.2d 248] at 255-259, or in

Nelson v. Hyne, 491 F.2d 352 (7th

Cir. 1974), which we believe in-

dicate the kinds of beatings that

could constitute cruel and unusual

punishment if the eighth amendment

is indeed applicable.

395 F.Supp. at 303.

Thus, this Court's summary affirmance cannot be interpreted as

a resolution of whether or not the Eighth Amendment has applica-

tion in a public school setting. The en banc Fifth Circuit

decision in Ingraham squarely held that it did not. That important

constitutional matter s’.ould now be decided by this Court.

2. The Decision Below Conflicts With

The Decisions Of Other Courts Of

Appeals And Federal District Courts.

A. The Cruel and Unusual Punishment Issue.

The en banc Fifth Circuit decision in this case squarely ?

conflicts with the Eighth Cireuit decision in Bramlett v. Wilson,

495 F.2d 714 (8th Cir. 1974). Bramlett concluded that the

Eighth Amendment does apply to excessive corporal punishment in

public schools. The Court below held that it did not apply to

any corporal punishment in public schools, excessive or not.

A conflict is also presented with the Seventh Circuit

decision in Nelson v. Hyne, 491 F.2d 352 (7th Cir. 1974), cert.

denied, 417 U.S. 976 (1974). Nelson involved corporal punish-

ment used in a state correctional school, one-third of whose

students were "non-criminal offenders." 491 F.2d at 353. Drawing

B. The Procedural Due Process Issue.

no distinction between the criminal and non-criminal residents

of the school, the Nelson court applied the Eighth Amendment The decision below is in plain conflict with the

three-judge court decision in Baker v. Owen, 395 F.Supp. at

to the school's practice of paddling its ‘students. 491 F.2d at

354-355. 301-303, which makes minimum procedural due process safeguards

There have also been several federal court decisions the sine qua non for imposing mild corporal punishment. The

Baker court reached that ruling by looking to Goss v. lopez,

which assume, without deciding, that tho Eighth Amendment applies

to the imposition of corporal punishment in public schools. 419 U.S. 565 (1975). The court below found Goss unpresuasive.

Baker v. Owen, 395 F.Supp. 294 (M.D. N.C. 1975), aff'd U.S Therefore we turn to the third reason why certiorari should be

— EE )

96 S.Ct. 210, 46 L.Ed.2d 137 (1975); Glaser v. Marictta, 351 granted, the conflict between the en banc holding and the decisions

F.Supp. 555 (W.D. Pa. 1972); Ware v. Estes, 328 F.Supp. 657 of this Court in Goss and other cases.

3. The Decision Below Conflicts With

(N.D. Tex. 1971), aff'd per curiam, 458 F.2d 1360 (5th Cir. 1972); The Decisions of This Court.

Whatley v. Pike County Board of Education, Civil Action No. 977 A. The Procedural Due Process Issue.

(N.D. Ga. 1971) (three-judge court); and Sims v. Board of Education, The defendants in this case conceded that "corporal

329 F.Supp. 678 (D. N.M. 1971). punishment in the public schools of Dade County, Florida, is

Finally, two district courts have held that the EFighth a last resort means of discipline as an alternative to suspension

Amendment does not apply to corporal punishment in public or expulsion.... Defendants' Brief, p. 17, 498 F.2d at 267;

schools. Sims v. Waln, 388 F.Supp. 543 (S.D. Ohio 1974) and 525 F.2d at 925. They placed the loss of liberty attendant to

Gonyaw v. Gray, 361 F.Supp. 366 (D. Vt. 1973). corporal punishment above the loss of property inherent in

The varying opinions of numerous federal courts (and temporary suspensions from school. On that point the defendants

judges) buttress the argument that this Court should grant were correct. The words of the due process clause, protecting

certiorari to resolve the ongoing conflict over the place of the "life, liberty, or property’ denote the views of the founding

Eighth Amendment in public schools. fathers on the hierarchy of rights entitled to constitutional

protection. Goss v. lopez, 419 U.S. 565 (1975) protected the

property right of an education from temporary loss unless minimal

due process procedures were present. The court below did not believe

We recognize that if an Eighth Amendment di

stincti ai

uate becben éisciplins in public schools and aise i ee ee ee —

ac ties, Nelson is not a direct conflict with the en ba

ee ate en banc majority did subscribe _aa en eer mney See wand

stinction. F.2d at - istincti

at 914-915. We believe the distinction cept that liberty - freedom from severe physical punishment at

to be invalid.

the hands of the state - requires due process safeguards. The

denial of that concept by the en banc court thus conflicts with

Goss.

It also conflicts with portions of Wisconsin v.

Constantineau, 400 U.S. 433, 437 (1971) and Board of Regents

v. Roth, 408 U.S. 564, 558 (1972), cited with approval in Goss.

419 U.S. at 574-575. Those cases mandated that "where a person's

good name, reputation, honor or integrity is at stake because of

"notice and an opportunity

what the Government is doing to him,'

to be heard are essential. The decision below simply asserted

that a paddling "is certainly a much less serious event in the

life of a child than is a suspension or expulsion." 525 F.2d at

919 (footnote omitted). Certainly the plaintiffs, who sought

judicial relief for the beatings inflicted upon them, did not

agree. But it is for this court to decide if the stigma and

pain of corporal punishment is due fewer safeguards than being

posted as an excessive drinker. Cf. Wisconsin v. Constantineau,

400 U.S. 433 (1971). The conflict is apparent and should be

resolved.

B. The Substantive Due Process Issue.

This Court has held that where state action invades

fundamental liberties it will be subjected to "strict scrutiny"

by the counts, Skinner v. Oklahoma, 316 U.S. 535, 541 (1941), and

will not be upheld simply on the showing that the statute has

some rational relationship to the proper state purpose. Griswold

v. Connecticut, 381 U.S. 479, 497 (Goldberg, J., concurring)

(1965). The State may prevail only upon showing a compelling,

subordinating interest, Bates v. City of Little Rock, 361 U.S.

516, 524 (1960). Moreover, governmental action which broadly

invades areas of constitutionally protected rights "must be viewed

in the light of less drastic means for achieving the same basic

purpose", Shelton v. Tucker, 364 U.S. 479, 488 (1960) (footnote

omitted).

Of course, none of those cases, which forge the concept

of "substantive due process", relate to the precise issue pre-

sented by this case. But inherent in those decisions is the

belief that governmental actions must not be arbitrary and

unsuited to their purpose. To the extent that the court below

held that no matter how severe or excessive, corporal punishment

is not arbitrary and is always suited to its purpose, the decision

conflicts with a long line of constitutional theory explicated

by this Court.

CONCLUS ION

For the reasons stated above, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

BRUCE S. ROGOW

Nova University Center for the

Study of Law

3301 College Avenue

Fort Lauderdale, Florida 33314

Tel: 305/587-6660!

HOWARD W. DIXON

PETER M. SIEGEL

WILLIAM J. FLANAGAN

Legal Services of Greater Miami, Inc.

395 N. W. First Street

Miami, Florida 33128

Tel: 305/579-5757

7 )

/ / a

By: / VLaec ( Dk {dle

Counsel for Petitioners

April, 1975

A P P E NWN D

2A8 498 FEDERAL REPORTER, 2d SERIES

firm which disenfranchise a minority

that fails to register. What we have

held is that the tactic underlying the

Texas annual voter registration system,

which sought to win the war for repre-

sentative government by inflicting dev-

astating losses on its electoral army be-

fore it ever marched off to the polls, is

inconsistent with the United States Con-

stitution. The mass disenfranchisement

may have been unintentional, but it was

nevertheless the consequence of the law.

The judgment of the District Court de-

claring unconstitutional the statutory

provisions prescribing limited registra-

tion time periods and the requirement

for annual voter registration was cor-

rect. The effect of this is to leave in-

tact the 1971 amendments. Seve notes 6

and 7, supra.

Affirmed.

Eloise INGRAHAM, us next friend,

etc., et al., Plaintiffs-Appellants,

Willie J. WRIGHT, I, Individually, etc.,

et al., Defendants-Appellees.

No. 73-2078.

United States Court of Appeals,

Fifth Circuit.

July 29, 1974.

Action was brought by parents

seeking compensatory and punitive dam-

ages and declaratory and injunctive re-

lief as to use of corporal punishment in

county school system. The United

States District Court for the Southern

District of Florida, Joe Eaton, J., dis-

missed the action, and plaintiffs appeal-

ed. The Court of Appeals, Rives, Cir-

cuit Judge, held that three-judge court

was not required, that superintendent

of schools sued in his individual

capacity was a “person” within the Civil

Rights Act, and that evidence estab.

lished that use of corporal punishment

at one school violated = prohibition

against cruel and unusual punishment

and due process.

Reversed and remanded

Lewis R. Morgan, Circuit Judge,

filed dissenting opinion.

1. Civil Rights C?13.7

School superintendent, sued as indi-

vidual, is a “person” within meaning of

Civil Rights Act. 42 U.S.C.A. § 1983.

2. Civil Rights 13.11

If plaintiffs in civil rights action

seeking injunctive and declaratory relief

against use of corporal punishment in

county school system request to add in-

dividual members of school board as

parties defendant, such request should

be granted. 42 U.S.C.A. § 1983; Fed.

Rules Civ.Proc. rule 21, 28 U.S.C.A.

3. Courts 405(2)

Even though parties to appeal did

not raise issuc, Court of Appeals would

consider whether complaint seeking de-

claratory and injunctive relief relating

to use of corporal punishment in county

school system should have been heard by

three-judge court. 28 U.S.C.A. § 2281;

42 U.S.C.A. § 1983; West's F.S.A. §

232.27.

4. Courts © 1015(2)

Consent, either implied or express,

cannot authorize single judge to hear

case that falls within statute relating to

imipaneling three-judge court to hear

case seeking injunction against enforce-

ment of state law. 28 U.S.C.A. § 2281.

5. Courts © 101.5(2)

Where plaintiffs in civil rights ac-

tion seeking declaratory and injunctive

relief as to use of corporal punishment

in county school system did not seek to

enjoin enforcement of any specific state

statute but merelv sought to enjoin use

of corporal punishment on student. in

particular county, case was not requir d

to he heard by three-jedve court. 28 C

S.C.A. 3 2281; 42 U.S.C A. § Ivad:

West's F.S.A. § 232.27

INGRAHAM v. WRIGHT 249

Cite oe 1 Bd tes crete

6. Constitutional Law C270 of nature likely to cause serious physical

Eighth Amendment prohibition and psychological damages and was

against croel and unusual punishment is sometimes arbitrary. 42 U.S.C.A. §

applicable to states through due process — 1994

clause of Fourtecnth Amendment. U.S.

C.A.Conust. Amends. &, 14,

7. Criminal Law C1213

Punishments devised by school offi-

cials are subject to Eighth Amendment

scrutiny. U.S.C.A.Const. Amend. 8.

8 Criminal Law C1213

At present time, corporal punish-

ment per se cannot be ruled violative of

Eighth Amendment. U.S.C.A.Const.

Amend. 8.

9. Criminal Law 12138

Scope of Eighth Amendment is not

static and must draw its meaning from

evolving standards of decency. U.S.C.

A.Const. Amend. 8.

10. Criminal Law ©1213

Specific policies on corporal punish-

ment promulgated by county school

board did not violate Eighth Amendment.

U.S.C.A.Const. Amend. 8.

1L. Schools and School Districts 176

While evidence was insufficient to

establish that actual practice of corporal

punishment in county school system as a

whole violated the Eighth Amendment,

evidence as to pattern, practice and uses

of corporal punishment at one junior

high school was such that dismissal of

suit seeking compensatory and punitive

damages and declaratory and injunctive

relief was error. 42 U.S.C.A. §§ 1981-

1988, 1983; U.S.C.A.Const. Amend. 8;

Fed.Rules Civ.Proc. rule 41(b), 28 U.S.

C.A.; West's F.S.A. § 232.27.

12, Criminal Law C1213

Violation of Eighth Amendment can

occur at level of single educational insti-

tution even though there may be no vio-

lation at other institutions in same dis-

trict. U.S.C.A.Const. Amend. 8.

13. Civil Rights 13,133)

Evidence, in suit seeking damages

and injunctive and declaratory relief as_

to use of corporai punishment in county

school system, established that punish-

ment meted out at particular school was

498 F.26—1609

14. Criminal Law C1213

Whether punishment is cruel and

unusual in constitutional sense depends

to significant degree on circumstances

surrounding particular punishment. U.

S.C.A.Const. Amend. 8.

15. Civil Rights C13.4(6)

Specific intent to deprive person of

his constitutional rights is not necessary

to maintain civil rights action. 42 U.S.

C.A. § 1983.

16. Federal Civil Procedure 206}, 2071

Where suit contained three counts

with counts one and two seeking com-

pensatory and punitive damages and eq-

uity count three seeking declaratory and

injunctive rclief as to use of corporal

punishment in county school system, and

counts seeking compensatory and puni-

tive damages continued to be for jury

trial, issues of fact common to all three

counts must first be heard and deter-

mined by jury’s verdict rendered on one

or both of first or second count.

17. Criminal Law ©1213

There is some question as to wheth-

er Eighth Amendment extends to include

negligence. U.S.C.A.Const. Amend. 8.

18 Schools and School Districts C@176

Full panoply of procedures associat-

ed with judicial process are not required

in determining whether school officials

may administer corporal punishment.

U.S.C.A.Const. Amend. 14. .

19. Schools and School Districts 176

If student concedes that he has en-

gaged in certain conduct, but claims that

he did not know that such conduct was

prohibited, school authorities should pro-

ceed with caution in administering cor-

poral punishment.

20. Schools and School Districts 175

Punishment of any sort would be

patently unfair where student was gen-

erally unaware of school regulation, and

had no reason to know that he was en-

gaging in conduct which might later be

used as basis for punishment.

250 498 FEDERAL REPORTER, 2d SERIES

21. Schools and School Districts C175

If student claims that he is innocent

of conduct which merits punishment,

school officials should make sufficient

inquiries to engure that, to contrary,

student is guilty beyond any reasonable

doubt.

22. Schools and School Districts 175

Where student claims that he is in-

nocent of conduct which merits punish-

ment, student should be allowed to re-

spond to witnesses against him, and in

some cases should be accorded opportu-

nity to ask them relevant questions.

23. Schools and School Districts 175

Hearing as to whether student has

in fact been guilty of conduct meriting

punishment may take place in informa!

setting and no formal rules of procedure

or evidence need be followed.

24. Schools and School Districts =17é

School district policy for imposing

corporal punishment comported with re-

quired procedures.

25. Schools and Schoo! Distrcts 176

Under the evidence, court could not

say that mild or moderate corporal pun-

ishment was unrelated to achievement of

any legitimate educational purpose.

26. Constitutional Law ¢=253(2)

. Criminal Law ©1213

Record established that corporal

punishment meted out at one school of

school district violated constitutional

prohibition against cruel and unusual ©

punishment and due process. U.S.C.A.

Const. Amends. 8, 14.

27. Courts ©°405(16.16)

In absence of findings as to extent

to which corporal punishment is useful!

or necessary disciplinary measure in

county school system, reviewing court

would not consider claim by parents that

corporal punishment was inflicted not-

withstanding their instructions to con-

trary.

—7s> -——_

Alfred Feinberg, Miami, Fla., for

plaintiffs-appellants.

Frank A. Howard, Jr., Thomas G. Spi-

cer, Leland E. Stansell, Jr., James A.

Smith, Miami, Fla. for defendants-

appellees.

Before RIVES, WISDOM and MOR-

GAN, Circuit Judges.

RIVES, Senior Circuit Judge:

More than a century ago, a member of

the Supreme Court of Indiana made the

following observation:

“The husband can no longer moderate-

ly chastise his wife; nor, according to

the more recent authorities, the mas-

ter his servant or apprentice. Even

the degrading cruelties of the naval

service have been arrested. Why the

person of the schoolboy, ‘with his

shining morning face,’ should be less

sacred in the eye of the iaw than that

of the apprentice or the sailor, is not

easily explained.” :

Cooper v. McJunkin, 1853 (4 Ind. (Por-

ter) 290 (Stuart, J.). In the present

case, we consider constitutional issues

related to corporal punishment in the

public school system of Dade County,

Florida.

Plaintiffs filed on January 7, 1971, a

complaint containing three counts.

Counts One and Two were individual ac-

tions for compensatory and punitive

damages brought by two junior high

school students under 42 U.S.C. §§

1981-1988, with jurisdiction claimed un-

der 28 U.S.C. § 1321 and § 1343. The

students claimed personal injuries re-

sulting from corporal punishment ad-

ministered by certain defendants in al-

legec violation of their constitutional

rights. Count Three of the complaint

was a class action, also brought under 42

U.S.C. §$§ 1981-1988, with jurisdiction

claimed under 28 U.S.C. § 1331 and §

1343. This class action filed on behalf

of all students in the public school sys-

tem of Dade County sought injunctive

and declaratory relic f against the use of

corporai punishment throughout the

county school system.

The plaintiffs presented their evi-

dence on Count Three of the complaint

—— -

INGRAHAM v. WEIGHT 251

Cite as TH FO

in a week long trial before the district

court with-ut a jury, Those who testi-

fied included sixteen students or former

students, several parents and other rela-

tives of students, a professor of educa-

tional psychology, and a number of

school te.chers and administrators, in

cluding the defendant Superintendent

Edward Whigham. The evidence also

included a photograph, stipulations, an-

swers to interrogatories, school records

and medical reports. At the close of the

plaintiffs’ case, the defendants moved

for dismissal under Rule 41(b), F-R.

Civ.P., which in relevant part provides:

“after the plaintiff, in an action tried

by the court without a jury, has com-

pleted the presentation of his evi-

dence, the defendant, without waiving

his right to offer evidence in the

event the motion is not granted, may

move for a dismissal on the ground

that upon the facts and the law the

plaintiff has shown no right to relief.

The court as trier of the facts may

then determine them and render judg-

ment against the plaintiff or may de-

cline to render any judgment until the

close of all the evidence. If the court

renders judgment on the merits

against the plaintiff, the court shall

make findings as provided in Rule

52(a). Unless the court in its order

for dismissal otherwise specifies, a

dismissal under this subdivision and

any dismissal not provided for in this

rule, other than a dismissal for lack of

jurisdiction. for improper venue, or

for failure to join a party under Rule

19, operates as an adjudication upon

the merits.”

The district court noted in its order that

counsel for the parties then agreed that

the evidence offered to support Count

Three “would also be considered by the

Court, as if upon motion for directed

verdict, as having been offered on

Counts One and Two, provided that cer-

§. Also xee Cheramie v. Tucker, 5 Cir. 1974,

403 F.2d 586, 587, where thix Court held

that various arms of the state government of

Lovisiane, such as the Department of Ligh-

ways, are not persons within the meaning of

42 U.S.C. § 1955.

ed he eee OT

tain additional testimony desired by

Plaintiffs’ counsel were placed in the

record by denosition or stipulation.”

Thus, this case really involves one equity

case, styled Count Three, and two law

cases, styled Counts One and Two. The

additional testimony was summarized in

a stipulation. On February 23, 1973,

the district court first dismissed Count

Three ef the complaint, and then con-

cluded that a jury could not lawfully

find that either of the plaintiffs in

Counts One and Two sustained a depri-

vation of constitutional rights.

We hold that the district court erred

in dismissing each of the three counts of

p'aintiffs’ complaint, and, therefore, re-

verse and remand for further proceed-

ings.

JURISDICTIONAL ISSUES

A. Vefendants assert that there is no

federal jurisdiction over Count Three

under 42 U.S.C. §§ 1981-1988 and 28 U.

S.C. § 1331 and § 1343, because the

Dade County School Board and the Su-

perintendent of Schools in their official

capacities are not “persons” amenable to

civil rights actions. In support of this

claim defendants cite City of Kenosha v.

Bruno, 1973, 412 U.S. 507, 93 S.Ct. 2222,

37 L.Ed.2d 109. In City of Kenosha, the

Supreme Court held that two municipali-

ties in Wisconsin were not “persons”

within the meaning of 42 U.S.C. § 1983.

In Campbell v. Masur, 5 Cir. 1973, 486

F.2d 554, where a plaintiff sued a school

superintendent and a school board in

their official capacities only, the court

sent the case back to the district court

for re-examination and further consider-

ation in light of City of Kenosha.!

{1} Plaintiffs have sued Superin-

tendent of Schools Edward L. Whigham

in his individual capacity, as well as in

his official capacity? It is clear that

2. Willie J. Wright. I (a principal), Lemmie

Deliford (on axsistant principal) and Solo-

mon Barnes (an assistant to a principal)

have each aleo been sued in his official and

individual capacity.

252 498 FEDERAL REPORTER, 24 SERIES

the school superintendent, sued as an in-

dividual, is a “person” within the mean-

ing of § 1983. Sterzing v. Fort Bend

Independent Schoo! District, 6 Cir. 1974,

496 F.2d 92, p. 93, n. 2; United Farm-

workers of Florida Housing Project, Inc.

v. City of Delray Beach, 5 Cir. 1974, 493

F.2d 799. To hold otherwise would sug-

gest the impossibility of suing any gov-

ernment official or employee under §

1983. City of Kenosha, supra, does not

require or even intimate the possibility

of such a result. The right to bring a §

1983 action against a state or local offi-

cial is well established. See Monroe v.

Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5

L.Ed.2d 492, and its progeny. Also sce

Moor v. County of Alameda, 197%, 411

U.S. 693, 700, 93 S.Ct. 1785, 36 L.Ed.2d

596.

{2} Prior to the decision in City of

Kenosha, a number of courts had held

that cities were proper defendants under

§ 1983 where equitable relief was

sought. See discussion in City of Keno-

sha v. Bruno, supra, 412 U.S. at 512-

514, and at 516ff. 93 S.Ct. 2222 ( Doug-

las, J., dissenting in part). The com-

plaint in the present case. and all of the

proceedings in the district court, oc-

curred before City of Kenosha was de-

cided. Taking these factors into consid-

eration, the district court should on re-

mand grant the likely request of plain-

tiffs to add the individual members of

the Dade County School Board as par-

ties defendant under Count Three of the

complaint. Without regard to whether

the plaintiffs may ultimately be entitled

to any equitable relief against the

School Board or its members, fairness

and efficient judicial administration jius-

tify the addition of the individual school

board members as parties insofar as the

plaintiffs seck declaratory and equitable

relief restraining the School Board from

3. Conat«s One ond Two, whieh ore individual

actions for damages, clearly do not require a"

three-judge district court, Therefore. if it

were determined that a three-judge court is

necesxary to decide Count Three, we would

atill be obliged to consider most or all of the

underlying facts in this case in order to re

view the district court's dixpoxition of

Counts One and Two.

authorizing or implementing corporal

punishment in Dade County. See Rule

21, F.R.Civ.P.; Mullaney v. Anderson,

1952, 342 U.S. 415, 72 S.Ct. 428, 96 L.

Ed. 458: United States v. Louisiana,

1967, 354 U.S. 515, 77 S.Ct. 1373, 1 L.

Ed.2d 1525: Halladay v. Verschoor, 8

Cir. 1967, 381 F.2d 100; Rakes v. Cole-

man, E.D.Va.1970, 318 F.Supp. 181; 3A

Moore § 31.05{1)}.

[3-5] B. Although not argued by

the parties on this appeal, it is appropri-

ate to examine whether Count Three of

the instant case should have been heard

by a_ three-judge district court.’

Though neither party requested a

three-judge district court, consent, ei-

ther implied or express, cannot authorize

a single judge to hear a case that falls

within the terms of 28% U.S.C. § 2281.

Sands v. Wainwright, 5 Cir. 1973, 491

F.2d 417, 424 (‘en banc); Borden Co. v.

Liddy, 8 Cir. 1962, 309 F.2d 871; Amer-

icans United for Sep. of Church & State

v. Paire, 1 Cir. 1973, 475 F.2d 462. The

district court in the present case consid-

ered the question and ruled that a

three-judge district court was not _re-

quired. We agree. »

Plaintiffs sought injunctive relief re-

straining the defendants, their agents

and employees from inflicting any form

of corporal punishment upon students in

the Dade County public school system‘

Plaintiffs did not request an injunction

restraining the enforcement of any spe-

cific Florida statute, and in oral argu-

ment before this Court, counsel for

plaintiffs stated, “We are not challeng-

ing the constitutionality of the Florida

statute.” Section 2°2.27 of Florida

Statutes Annotated, provides:

“Each teacher or other member of

the staff of any school shall assume

such authority for the control of the

4 Viaintitis’ request for injunetive relief re-

straining the defendants from acministering

corporal punishment in Charles R. Drew

Junior High Sehool ix obviously included

within the larger request for injunctive re-

lief throughout the eutire county system.

ants. oe

INGRAHAM v. WRIGHT 253

rte as bas Bot tte edteeas

pupils as may be assigned to him by

the principal and shall heep good or-

der in the classroom and in other

places in which he is assigned to be in

charge of pupils, but he shall not in-

flict corporal punishment before con-

sulting the principal or teacher in

charge of the school, and in no case

shall such punishment be degrading or

unduly severe in its nature.”

The injunctive relief sought by plain-

tiffs would not conflict with this provi-

sion, and would not extend beyond Dade

County. By establishing limits upon the

administration of corporal punishment,

the statute inferentially permits local

school boards to authorize such punish-

ment. This statute does not mandate or

require corporal punishment, however,

nor does it compel local school boards to

adopt regulations providing for corporal

punishment. In fact, the statute would

not prevent a local board from prohibit-

ing corporal punishment in certain

grade levels or throughout a county sys-

tem.

The Dade County School Board adopt-

ed a policy which affirmatively autho-

rized the use of corporal punishinent in

Dade County schools. It is the imple-

mentation of this policy, and the prac-

tices which have developed in Dade

County under the authority of this poli-

cy, particularly in one junior high

school, which the plaintiffs seck to en-

join. Although a regulation authorizing

corporal punishment is consistent with

F.S. 232.27, F.S.A. an injunction re-

straining the named defendants, their

agents and employees from the use of

corporal punishment would not require

the invalidation of the Florida statute,

and would not directly affect any county

in Florida other than Dade County.

Count Three, therefore, comes within

the rule that where a challenged regula-

tion or policy is of only local import, a

single judge must hear the case. Board

of Regents of University of Texas Sys-

tem v. New Left Education Project,

1972, 404 U.S. 541, 92 S.Ct. 652, 30 L.

Ed.2d 697; Moody v. Flowers, 1967, 387

U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643;

Griffin v. School Board of Prince Ed-

ward County, 1961, 377 U.S. 298, 327,

328, 84 S.Ct. 1226, 12 L.Fd.2d 256; Ro-

rick v. Board of Commissioners, 1939,

307 U.S. 208, 59 S.Ct. Sus, 83 L.Ed.

1242; Ex parte Public National Bank,

192%, 278 U.S. 201, 49 S.Ct. 43, 73 L.ted.

202; Ex parte Collins, 1928, 277 U.S.

565, 48 S.Ct. 585, 72 L.ed. 990; Sands

v. Wainwright, 5 Cir. 1973, 491 F.2d 417

(en banc).

II.

THE FACTS

As to the district court's findings or

treatment of facts, appellate review is

governed by one rule applicable to Count

Three and by a different rule applicable

to Counts One and Two. We have here-

tofore indicated that there were two sep-

arate orders of dismissal. Count Three

was dismissed under Rule 41(b), F.R.

Civ.P. “on the ground that upon the

facts and the law the plaintiff has

shown no right to relief.” As autho-

rized by that rule, the district court in

effect rendered judgment on the merits

against the plaintiffs and made findings

as provided in Rule 52(a). See Emer-

son Electric Co. v. Farmer, 5 Cir. 1970,

427 F.2d 1082, 1086; Wright & Miller,

Federal Practice & Procedure § 2371;

Moore’s Federal Practice { 41.13[4).

The district court’s order of dismissal as

to Counts One and Two correctly recog-

nized that, “The issue now before the

Court is whether the evidence, viewed

most favorably to plaintiffs is sufficient

to permit a jury to return a verdict for

plaintiffs on either or both of the First

and Second Counts.” On that issue, our

review of the sufficiency of the evidence

is governed by the familiar rule enunci-

ated in Boeing Company v. Shipman, 5

Cir. 1969, 411 F.2d 365, 374-375.

In its order of dismissal as to Count

Three, the district court listed its “Find-

ings of Fact” as follows:

“1. The Dade County public school

system is the sixth largest in the na-

tion, with approximately 12,500 teach-

ers and administrative personnel oper-

TT ;

254 498 FEDERAL REPORTER, 2d SERIES

ating 237 schools with a total student

population in excess of 242,000.

“2. Corporal punishment is one of

a variety of measures employed in the

school system for the correction of pu-

pil behavior and the preservation of

order. Other alternative measures in

use range from parent and student

conferences, the use of guidance

counselors and psychologists, where

available, to suspension and expulsion.

Corporal punishment is not utilized at

all in sixteen schools in Dade County.

“3. Statutory authority for the

use of corporal punishment in Florida

is found in Florida Statutes, § 232.27,

which deals- with the duties of teach-

ers in the control of pupils, but pro-

vides that a teacher “* * * shall

not inflict corporal punishment before

consulting the principal or teacher in

charge of the school * * *.” The

Defendant School Board's policy as it

existed when this suit was filed is

more restrictive. It requires the prin-

cipal to determine the necessity for

corporal punishment, and to designate

the time, place and person to adminis-

ter the punishment, and in other ways

limits the circumstances in which the

punishment may be used. The Policy

was revised in November, 1971, and

supplemented with detailed regula-

tions, which prescribe additional limi-

tations upon the nature, extent and

circumstances of permissible punish-

ment.

“4. There is no published schedule

of infractions for which corporal pun-

5. During the 1970-71 school yeur, Policy

Si44 provided in relevant part as follows:

“Il. Punishment: Corporal Punishment

“Punishment in the general senxe ix the in-

flicting of a penalty for an offense. Cor-

poral punishment is generally applied to

the body of the offender or ix physical

punishment ax opposed te other forms of

punishment and ix administered ax a

meanx of changing the behavior of the

student. Therefore, it is important to an-

alyze whether or not this goal will be ae

complished by such action.

“Corporal punisiment may be used in the

case where other means of seeking cuop-

etution frum the stwlent have failed. If

ishment is authorized, nor any formal

procedural requirements which must

be observed before punishment may be

administered.

“5. There has been a rather wide.

spread failure to adhere to School

Board policy regarding corporal pun-

ishment, Teachers have punished stu-

dents without first consulting with

their respective principals. More

blows have been administered to sty.

dents than authorized by the policy.

Teachers have administered corporal

punishment with only the student or

students present. With the exception

of a few cases, the punishments ad-

ministered have been unremarkable in

physical severity.

“The instances of punishment which

could be characterized as severe, ac-

cepting the students’ testimony as

credible, took place in one junior high

school.”

We agree with and accept the ex-

pressed findings of the district court.

However, those findings are somewhat

meager considering the voluminous evi-

dence presented in this case, and it is

therefore appropriate for us to detail

more fully what the testimony and other

evidence reveals.

Dade County School Board Policy

5144 expressly authorizes the use of cor-

poral punishment, and prescribes the

procedures to be followed where a teach-

er feels that corporal punishment is

neeessary.* During the 1970-7] school

it appears that corporal punishment is

likely to become nevessury, the teaeler

must confer with the principal. The prin-

cipal will determine the necessity for cur

poral punishment aul designate the time,

place, and the persun to admiaister said

punishment. Iu any case. the student

should waderstaml clearly tie seriousness

of the offenx» andl the reasen for the puv-

ishment. Cure should be taken that the

period of time between the offense and

the punisianeut ix not so lots as te eauye

umlue ansiets in the pupil, The punish-

ment must be administered in kindness

aud in the presence of another adult et a

time aml under conditions not calculated

Cite as ite

year, Policy S144 provided, among other

things, that the punishment be adminis-

tered “in kindness and in the presence

of another adult” and that “no instru-

ment shall be used that will produce

physical injury to the student, and no

part of the body above the waist or be-

low the knees may be struck.”

The evidence shows that corporal pun-

ishment in Dade County during the rele-

vant period consisted primarily, if not

entirely, of “paddling.” ® Paddling in-

volves striking the student with a flat

wooden instrument? usually on the but-

tocks. The district court recognized

that the evidence revealed “a rather

widespread failure to adhere to School -

Board policy regarding corporal punish-

ment.” Many of the student witnesses

gave testimony which indicated that

their teachers in various schools did not

always consult with the principal of the

schoo! before administering corporal

punishment. A number of non-princi-

pals admitted in their answers to inter-

rogations that they did not “regularly

and routinely” confer with the principal

before paddling students.* Student tes-

timony also indicated, and the district

to hold the student up to ridicule or

shame.

“In the administering of corporal punish-

ment, no instrument shall be used that

will produce physical injury to the stu-

dent, and no part of the body above the

waist or below the knees may be struck.

The person administering the corporal

punishment must realize lis own persopal

liabilities if the student being given corpo-

ral punishment is physically injured.

“Corporal punisliment should never be ad-

ministered to a student whom school per-

sopnel know to be under psychological or

medica] treatment unless there has been a

pre-conference with the school psycholo-

gist or the physician.”

On November 3, 1971, almost ten months

after this action was filed, Policy 5144 was

extensively revised. As indicated by the dis-

trict court, this revision included “detailed

regulations, which prescribe additional limi-

tations upon the mature, extent and circum-

stances of permixsible punishment.”

& We recognize that the term “paddling” is a

word of art. itaintiffs in their brief refer

to “beating.” Similarly, the punishment is

described in terms of “licks” and “blows,”

ed oe re

court found, that teachers sometimes ad-

ministered corporal punishment with

only the student or students present,

whereas school board policy required the

presence of another adult during the ad-

ministration of corporal punishment.

In at least 16 of the 251 Dade County

schools, corporal punishment was not

utilized in the 1970-71 school year.’

The evidence suggests that in most of

those schools which did use corporal

punishment, the punishment was nor-

mally limited to one or two licks, or

sometimes as many as five, with no ap-

parent physical injury to the children

who were punished. Quoting from the

district court’s findings of fact, “The in-

stances of punishment which could be

characterized as severe * * * took

place in one junior high school.” This

school was Charles R. Drew Junior High

School, and the occurrences there merit

description.

The experiences of individuai students

at Drew reveal the nature of the system

of corporal punishment utilized at this

educational institution. On October 6,

1970, a number of students, including

and the instruments of punishment are re-

ferred to as “paddles” and “boards.”

7. Paddle size was not prescribed during

1970-71. Most paddies probably were within

the range indicated by the November 3, 1971

revision of Policy 0144: “The instrument

must be of wood and be no more than two

feet long vor more than one-half inch thick

and no more than four inches wide.”

8. By stipulation dated October 10, 1971, the

parties agreed that, “Ihe total number of

persons with the Dade County School Sys-

tem, other than school principals, who ad-

ministered corporal puvishment but did not

regularly and routinely confer with the prin-

cipal of the school in which they were em-

ploved during the school year commencing

September 1970 was 59 (fifty-nine) prior to

each paddling.” (R. 1435) This stipulation

was based on questionnaires prepared by the

plaintiffs and completed by school officials

and employees.

9. At least 10 of these schools did not admin-

ister corporal punishment as a matter of

school policy. See stipulation of October 10,

1972. Also see district court findig 2.

— ———

-_— ~~. ear

EE ee me

INGRAHAM v. WRIGHT 255°

256 498 FEDERAL REPORTER, 2d SERIES

-year-old James Ingraham, a

a siaintift, were slow in leaving

the stage of the school auditorium when

asked to do so by @ teacher. A number

of boys and girls involved in this inci-

dent were taken to the principal's office

and paddled. James protested, claiming

he was innocent, and refused to be pad-

died. Willie J. Wright, I, the principal

called for the assistance of Lemmie Deli-

ford, the assistant principal in charge of

administration, and Solomon Barnes, .

assistant to the principal. Barnes an

Deliford held James by his arms and

legs and placed him, struggling. face

down across & table. Wright adminis-

tered at least twenty licks."® After the

paddling, Wright told James to wait out-

side his office—“he said if I move he

was going to bust me on the side of my

head”—(Tr. 144), but James went home

anyway.

! , James examined his inju-

dans yn oa to him, his backside was

“black and purple and it was tight and

hot.” (Tr. 146) James’ mother took

him to a local hospital. The examining

doctor diagnosed the cause of James

pain to be a “hematoma.” “The area of

pain was tender and large in size, and

* # ® the temperature of the =

hematoma was above norma

+ Rag hag sign of inflammation often

associated with hematoma.” * The doc-

tor prescribed pain pills, a laxative,

sleeping pills and ice packs, and advised

James to stay at home for at least a

week (Tr. 148). A different doctor ex-

court found that James In-

yO -- So © licks with a woulen

paddie, which produced a painful and serions

Lematoma on hix buttocks.” (IR. 1561)

tt. Stipulated! teatimony of Tr. Fernanlo Mi-

Janes (R. 1557).

12. Stipulated testimony of Dr. Carlos Gamer

(R, 1555).

13. Exhibit 8, in form of prescription signed

hy De, Games.

the

“Dressing out” refers to putting on

ge vaiforn for physica! education vlass.

Accounting to Hooxevelt, he was one paukited

for not having white sovke, Ulin teacher

amined James on October 9, when he re-

turned:to the hospital for treatment, and

on October 14. This doctor described

James’ injury as follows: “The patient's

subjective [sic) signs of injury included

a hematoma approximately six inches in

diameter which was swollen, tender and

purplish in color. Additionally, there

was serousness or fluid oozing from the

hematoma.” '* On October 14, eight days

after the paddling, this doctor indicated -

that James should rest at home “for

next 72 hours.” "3 James testif ied that it

was painful even to lie on his back in

the days following the paddling, and

that he could not sit comfortably for

about three weeks (Tr. 149).

Roosevelt Andrews, the other named

plaintiff, testified that he was paddled

about ten times in one year at Drew

(Tr. 273). He was paddled a number of

times by his physical education teachers

for being late or for not “dressing

out.” **

On one occasion, 4 teacher stopped

Roosevelt, told him he could not possibly

get to his next class in time and then

took him to Barnes. Barnes told Roos-

evelt to go into a bathroom with a num-

ber of other boys. Barnes allegedly

lined about 15 boys up against the uri-

nals and paddled them. According to

Roosevelt, the blows must have hurt, be-

cause some of the boys were “hollering,

ery, prayed, and everything else” [sic]

(Tr: 294). After the other Loys left,

Roosevelt told Barnes that he would

have made it to class if the teacher had

refused to listen to his explanation that Ais

xorkx had been stolen. On anotler orcasion,

Rooxevelt was paddle! for not having teunis

shoes, although he triel io explain to the

teacher that someune hal stolen hix shoes

und that he could not get = ones because

conkd not afford them. s

ayer xtudent, Reginald Iiloom, testified

that he was paddied fer not having zym

xhortx, altiough his short. had been were

Other xtudeuta at Drew and other stools

also textified to parilings in physical hort

tion claws, for sach offenses fs nove dressing

out, latenesa talking at inappropriate =

amt other minor miseendact, These pad

dings normally consisted of one of two OF

sometimes three licks.

INGRAHAM v. WRIGHT

257

Cita us WSN Tf Ses cing ay

not stepped him. Barnes told Roosevelt Donald Thomas testified that Barnes

to bend over. Roosevelt refused, Then,

curried a paddle with him when he

walked around the school and that Deti-

ford carried brass knuckles.“ Donald

further testified to a scheme of punish-

ment used in th auditorium. The seats

were numbered and cach student had an

assigned seat. If a student misbehaved,

his number was put on the board. Then

Barnes would come into the auditorium

and paddle the students whose numbers

were listed, without asking who had

done what. About five to cight students

were paddled every day, generally re-

ceiving four or five licks or so each.

Donald claimed he was paddled under

these circumstances between 5 and 10

times. Another student, Nicky Wil-

‘ liams, who was paddled under this sys-

tem. complained that Barnes would not

listen to any explanations.

according to Roosevelt, Barnes

“pushed me against the urinate thing,

the bowl, and then he snatched me

around to it and that’s when he hit me

first. He first hit me on the back-

sides and then | stand up and he

pushed me against the bathroom wall,

them things—that part the bathroom,

the wall * * * Between the toi-

lets, he pushed me against that and

then he snatched me from the back

there and that’s when he hit me on

my leg, then hit me on my arm, my

back and then right across my neck,

in the back here.”

(Tr. 295.) Incensed over his treatment,

Roosevelt complained to Wright, but

Wright seemed to support Barnes, his

co-administrator.

At a later time, Wright paddled Roos-

evelt, apparently for the breakage of

some glasses in sheet metal ciass, al-

though Roosevelt claimed it was not his

fault. Roosevelt. testified that during

this paddling, his wrist was hit, and

that painful swelling occurred. Roose-

velt went to see a doctor about his wrist.

The doctor gave him pain pills and ad-

vised him to keep something cold on his

wrist.'5 For about a week his wrist

hurt, and he could not use his arm.

Daniel Lee, who was paddled “lots of

times” (Tr. 463) at Drew, described how

on one occasion Barnes had a number of

students “in a line, holding onto the

chair, already paddling them,” "* and

asked him to come over and “get a little

piece of the board.” (Tr. 480~-481.)

Daniel asked what he had done, and

Barnes allegedly grabbed him and tried

to throw him on the chair. In the ensu-

ing confusion, Barnes hit Daniel on the

hand four or five times."* The hand

1S. Roosevelt's mother, Mrs. Willie Everett,

supported Roosevelt's description of

wrist injury.

take the punishment as prescribed, extra

his licks were given. Daniel Lee testified that

on one occasion, Deliford told a greup he

was punishing that, “If youn let go, if you jet

the chair go, every time you let the clair go,

that’s fifteen more licks. If you count to

three and you don't be back down on the chair,

that’s fifteen more licks.” (Tr. 479; see

also 477.)

16. James Ingraham, Joosevelt Andrews,

Daniel Lee, Reginald Bloom, Ray Jones and

Nicky Williams alse testified that Barnes

carried « paddle with him around the school.

Mrs. Everett, AlpLonse Licks and Larry

Jones saw Barnes at school with brass

knuckles. Reginald Bloom claimed he saw 18. On cross-examination, the following ex-

Deliford with brass knuckles. The apparent change oceurred :

visibility of the paddle and of the brass “Q. Are you telling the Court that Mr.

knuckles may bave affected the atmosphere Barnes havled off and deliberately hit you

at Drew. on the hand?

“A. Yea, sir; because he tried to throw

me aegaiust the chair, you know, and 1

wouklin’t get over there and so he grabbed

me and hit me on the band with the

board.

“Q. Ue was trying to hit you ou the rear

end, wasn't he?

“A. mes

17. As described by Daniel Lee and other wit-

nesses, a student abont to be paddled at

Drew was sometimes required to bend over

the back of a chair with his hands on the

front of the seat of the chair. A uumber of

witvesses testified that if the stadent let the

chair go, or im some other fashion failed to

498 F.26—17

sa Pe>

49g FEDERAL REPORTER, 24 SERIES

258

swelled hurt “and the bone was—it

ee bone was going to —

out” (Tr. 481), 80 Daniel's mother -

him to the hospital for an X-ray =

cording to Daniel, a bone in his . g

hand was fractured. The Court, rt) ne

ing Daniel's hand, stated that ” It —

to me to be disfigured, a portion © rm

right knuckle is enlarged to reg /

” Daniel claimed that his ."

still hurt, and swelled if he tried to

use it.

testified that he was

- or about 15 times. _

time Deliford paddled Reginald _

OF ee ok Raautly, wer. Reginald

to a te ‘

pow hry the time that he had not

made the call, and later another boy —

fessed to making it. Reginald testifi

he had to go home because

couldn't sit down. A doctor examined

Reginald’s buttocks and prescribed ice

Reginald found it painful to sit

down for about three weeks. Reginalfs

testified that her sons butt

were “black and blue right across, swol-

‘igs i packs to his buttocks for

es cure or more after he was

Spaddied. Another time Reginald and

. other boys were called into the prin-

> eipal’s office and actused of fighting OF

"the way home from school. When the

-) dled one of the boys:

“Mr. ford grabbed him and Mr.

Atha pees Mr. Deliford started

jumping on him, throwing him around

the room in the office.

“Then Mr. Wright, he got with Mr.

Deliford oe Mr. Barnes and started

throwing the boy around the room,

“a. Are you aying he deliberately hit you

on the haul?

r= — rs made you, hand awell up?

“a. Yeu sie.” (Tr. 487488.)

hitting him, throwing him on the ta-

le.”

Px 517.) The boy cried out that =

men had broken his hand and two _ .

later came back to school with a we on

on his hand. Reginald also > i :

that Barnes paddicd boys for c “ne

gum and for not tucking in their shi

tails.

Ray A. Jones and a boy named —.

were brought to the office at Drew og

policeman for “playing hooky.

ford and Barnes gave each nor ng J

fifty licks, causing both boys ke wv.

Two girls were present during this =

ishment and after the boys were el

dled, the girls received about five ~

each. Ray testified that he was es

to sit comfortably for about ree —

Ray's grandmother stated that w "be .

looked at Ray’s buttocks, she saw g

swollen places.” .

Rodney Williams testified "~ ot

cause he wanted to wipe some fore ~

matter off his seat in the auditorium .

fore sitting down. his number was P

lg his

t him five or ten times on

a oa back "eo a eget —

it him with a belt. e

eT aad swelled, and an 5 cy

roved necessary to remove a lump

em sort which had developed —

Rodney had been struck. Rodney =

-out of school for about & week, and fe

that the operation affected his —

and thinking. Another time, oe e 4

ford had given him ten licks, a pir

chest hurt and he threw up “dl vote 2

everything” (Tr. 601). Perhaps spon

he had asthma and heart trouble o no

sort, Rodney also reacted to this "

dling by “shaking all over and ae

bling,” and required treatment at rhe:

hospital. Ona later occasion, a pada’

’

19. Tuy assume © position standing i” -_ —

" chair, with hands on the seat of the clair,

in preparation te Doriang panclelest,

INGRAHAM v. WRIGHT 259

Cite as (WW FP Ja 2s cite

by Wright again caused Rodney to

cough up blood (Tr, 604),

Larry Jones testified that physical ed.

ucation teachers at Drew paddled him

about ten times and that Dliferd pad-

dled him a “heap of tim: S”~-about ten.

Several times Larry received ten licks.

On one occasion, when Larry refused to

be paddled, “he [Deliford, or Perhaps

Barnes) had to start hitting me with

that stick, and he put two knots on my

head” (Tr. 651).

Janice Dean testified that, on her

first day at Drew, she did not know

about assigned seats in the auditorium

and sat in the Wrong place. As a result,

Deliford gave her five licks. Another

time, when Janice was sent to the office,

Barnes administered fifteen licks, appar-

ently without knowledge of the alleged

misconduct, on a theory he allegedly ex-

Plained as follows: “He said he knew

we had done something wrong or we

wouldn’t have been there.” (Tr. 819).

Preston Sharpe testified that during

four years at Drew, Deliford Paddled

him about ten times. One time Preston .

was paddicd for having his shirttail

hanging out. Another time, when he

was supposed to receive ten licks, Pres-

ton received five extra licks for not

reassuming a paddling position quickly

enough after one of the licks, and three

extra licks for allowing the chair to

move and hit a door.

Nathaniel Evans testified that during

one year at Drew, he was paddled four

i On one occasion, when the typ-

ing class was noisy, Barnes gave each of

the fifteen students five licks. Another

20. In Gonyaw vy. Gray, D.Vt.1973, 361 F.

Supp. 366, 368, as one ground for sismizsal

of an action brought by parents of students

subjerte! to corporal panishment, the court

state! that, “This statute «does uot offend

the protection 4EAinst crucl and unusual

vavichment vecured by the Eighth Amend-

ment, xince this amendment provides a limi-

im mature. the Eighth Amendment loen not -

Proseribe the conduct assizueld to the de

feudauts.” (Citations Omit tei.)

time, when Barnes was trying to find

out who had been Whistling, he took a

class of S050 students and methodically

beyun to paddle cach student in an at-

tempt to locate the one who had been

Whistling. After about half of the class

had been paddled, some students told

Barnes who had Whistled, and the rest

of the classy was Spared. Nathaniel re-

ceived ten licks on another occasion

when his name, along with six others,

Was written on the board in the audito-

rium.

Ill.

CRUEL AND UNUSUAL PUNISH.

MENT

{6} The Eighth Amendment prohib-

its the infliction of “cruel and unusual

Punishment.” It jig applicable to the

States through the due Process clause of

the Fourteenth Amendment. Robinson

Vv. California, 1962, 370 U.S. 660, 82 S.

Ct. 1417, 8 L.Ed.2d 758; Furman y.

Georgia, 1973, 408 U.S. 238, 92 s.ct.

2726, 33 L.Ed.2d 346.

(7-9) A number of federal courts

have held that corporal punishment of

School children is not per se a violation

of the constitutional Prohibition against

cruel and unusual Punishment. Ware v.

Estes, N.D.Tex.1971, 328 F.Supp. 657,

aff'd per curiam 5 Cir. 1972, 458 F.2d

1360; Whatley vy, Pike County Board

of Education, N.D.Ga.1971, C.A. 977

(three-judge district court); Glaser vy.

Marietta, W.D.Pa.1972, 35) F.Supp.

555; Sims v. Board of Education of In-

dependent School Dist. No, 22, D.N.M.

1971, 329 F.Supp. 678.2%° We agree that

We find this *pproach unpersyasive, It

was succinetly stated in Vol, 6 Harv.Ciy.

Rights—+ ‘iv.Lib.L. Rev, Corporal Puninh-

ment in the Public Schools, p. 585 n. 24:

“In Trop v. Dulles, 456 U.S. 86, 94-100

[78 8.Ct. 590, 2 L.Ed.24 630) (1958), the

Supreme Court, ig applying the eighth

ameniment to 4)] punisiments inflicted

Pursuant to ‘penal Jaws,’ set forth two

tests to determine the meauing of penal.

First, there must be the imposition « a

‘disability for the Purpose of punishment.’

44. at 9 [78 8.01. 590). Sevond, there

muat be the prescription of a ‘obnsequence

260 498 FEDERAL REPORTER, 2d SERIES

at the present time corporal punishment

per s¢ cannot be ruled violative of the

Eighth Amendment. Mild or moderate

use of corporal punishment as a discipli-

nary measure in an elementary or sec-

ondary school normally will involve only

transitory pain of a non-intense nature

and will not cause intense or sustained

suffering or permanent injury. For

this reason, although many might object

to corporal punishment for a variety of

reasons, such punishment per se cannot

presently be held to be “excessive” in a

constitutional sense,?' or so “degrading”

to the “dignity” of school children as to

~ violate the Eighth- Amendment.*? Al-

that will befull one who fails to abide by

regulatory provisions . . . .” Jd. at 97

(78 8.Ct. 590}.

“Infliction of corporal punishment by

public school personnel meets both texts.”

Corporal punishment of schoolchildren iy

“punishment” in every senxe of the word,

whether it is called “criminal” or “civil.”

Cf. In re Gault, 1967, 387 U.S. 1, 17, 87 &.

Ct. 14283, 18 L.Ed2d 527. Corporal punish-

ment is used by state officials to punish stu-

dents for misbehavior committed during at-

tendance at school, and resembles statutorily

prescribed punishments for crimes in its

purposes and effects. Some of the offenses

punished by corporal panishment are in fact

essentially criminal in nature, such ax an-

saults or destruction of property. No doubt

for these reasons, moxt courts which lave

considered the constitutionality of corporal

punishment bave assumed that such punish-

ment may be evaluate! under eighth amend.

ment standaris, See especially Nelson vy.

Heyne, 7 Cir. 1974, 401 F.20 352, and Beraim-

let v. Wilson, 8 Cir, 1974, 495 F.2d 714. In

Bremlet the court sail, “an excessive

amount of pliysicul punishment {in a publie

school setting) could be held to be cruel and

unusual ani therefore prohibited.” The

rourt also state! “the designation of con-

duct ax other than ‘punishment’ ix simply a

label of convenience and will not obviate an

eighth amendment inquiry. Knecht y. Gill-

man, 488 F211 1136 (Sth Cir. 1973).”

Ta Jacksoo v. ishop, 8 Cir, 1968, 404 F.20

571, and Wright v. McMann, 2 Cir. 167,

3ST F.2d 519, courts found impermisnible

cruelty in offensive “punishments” deviae!

by prixon offivialx, und at leaxt some mem-

bers of the SNapreme Court have avknow!-

elgel the propriety of these findings. ee

Furman v. Georgia, 1972, 408 US. ZS, M4,

82 S.Ct. 2726, 33 LB S46 (Chief Justice

Burger dimenting, joined by Justives Ulack-

though the scope of the Eighth Amend-

ment admittedly is not “static” and

must draw its meaning from “evolving

standards of decency,” Trop vy. Dulles,

1958, 356 U.S. 86, 101, 78 S.Ct. 590, 2

L.Ed.2d 630, it is Significant that a

large number of states continue to au-

thorize the use of moderate corporal

punishment,?? and that corporal punish-

ment apparently is still utilized in many

school systems. Faced with this evi-

dence of what is apparently considered

appropriate by the American people, we

would be loath to Suggest that at this

time corporal punishment is “unaccepta-

ble to contemporary society,” Furman v.

mun, Powell and Rehnquist), We think

punishments devised by school officialy are

similarly subject to Eighth Amendment seru-

tiny, Paraphrasing the opinion in In re

Gault, supra, UST U.S. at 47. 87 S.Ct. 1428,

it would indeed he surprising if tle Eighth

Amendment protected hardened criminals but

not school children,

21. O'Neil v. Vermont, 1892, 144 U.S. 323,

339, 12 S.Ct. 603, 36 L.Ed. 450 (Field, J.,

tlissenting); Furman vy. Georgia, supra, 408

U.S. at 270-290, 92 S.Ct, 27085 (Brennan,

Jr., concurring).

22. Furman v. (ieorgia, supra, 408 U.S. 271-

273, 92 S.Ct. 2726 (Brennan, IJr.. concur-

ring); Trop v. Dulles, 1958, 256 U.S. 86,

100, 78 S.Ct. 590, 2 L.Ed.2d 630.

23. Avcorling to a Report of the Task Force

on Corporal Puniximent publixhed in 1972 by

the National Edueution Association, at p. 26,

submitted by the plaintiffs, corporal pupish-

ment ix bauued by state law in New Jersey

and) = Masxachusetts, and by state school

board policy iu Maryland. It ix slso bauned,

according to this report, in a number of

large cities. However, at p. 24 of the re

port, it in stated that 13 states specifically

permit corporal punisiment, while in other

states the teacher is given the same authori-

ty ax t'e¢ parent to discipline the child, or is

simply authorized to maintain onler and dis-

cipline in the classroom. Although the situ-

ation may have changed somewhat since

1972, apparently corporal punishment of

school chiklren ix still allowed in a large

number of jurimlictions. This contrasts with

the circumstances in Javksun vy. Bishop, S

Cir, 1N, 4046 F.2d S71. In that «a,

where the court held that the use of tle

strap in the Arkansas prisons vilated the

Right) Amendment, the court tuvok into son

sideration the fact that only two atutes still

ermitted the use of the strap. Nee 14 F.

2 ut SND,

INGRAHAM v. WRIGHT 261

Cite as 408 Fold tes crea

Georgia, supra, 408 U.S. at 277 279, 92

S.Ct. 2726 (Brennan, J.. concurring), or

that it is “abhored” by popular senti-

ment, Furman v. Georgia, supra, 408 U.

S. at 332, 92 S.Ct. 2726 (Marshall, J.,

concurring) .**

(10) Examining the specific policies

on corporal punishment promulgated by

the Dade County School Board, we find

in them no violation of the Eighth

Amendment. These policies do nothing

more than authorize the mild or moder-

. gte use of such punishment. Policy

5144, revised effective August 5, 1970,

provides that the punishment must be.

administered “in kindness.” “[N Jo in-

strument shall ba used that will produce

physical injury to the student, and no

part of the body above the waist or be-

low the knees may be struck.” Further,

corporal punishment “should never be

administered to a student whom shcool

personnel know to be under psychologi-

cal or medical treatment unless there

has been a pre-conference with the

school psychologist or the physician.”

Policy 5144 was revised extensively

effective November 3, 1971. This revi-

sion imposes specific limits on the num-

ber of strokes—a maximum of five

strokes for elementary school children

and a maximum of seven strokes for

junior and senior high school children.

24. The dissenters in Furinan v. Georgia em-

phasized the fact that “Capital punishment

is authorized by statute in 40 States, the

District of Columbia, and in the federal

courts for the commission of certain crimes”

(40S U.S. at 385, 02 S.Ct. at 2801), and that

juries acting as “ ‘the conscience of the com-

munity’” (408 U.S. at 388, 92 S.Ct. 2726).

continued to impose capital punishment. See

40S U.S. at 383-391, 92 S.Ct. 2726 (Durger,

C. J., dissenting). Justice Drennan suz-

Kests, however, that “The acceptability of a

revere punishment is measured, not by its

availability. for it .might become so offensive

to wociety ax never to be inflicted, but by its

use.” 405 U.S. at 279, 92 St. at 2747.

The evidence showed that capital punishment

hed actaally been imposed only rarely im re-

cent years. See 408 U.S. at 291 n. 40, 2

S.Ct. 2726. The plaintiffs do not suggest

that corporal punishment has become so of-

fensive that it ix no longer in general use in

Many Staten,

It requires the use of an instrument

“calculated to eliminate possible physical

injury.” The punishment must be ad-

ministered “posteriorly,” and “under no

circumstances shall a student be struck

about the head or shoulders.” The

former provision as to students under

psychological or medical treatment is re-

tained. Emphasis upon consideration of

the “nature of the misconduct” and the

“seriousness of the offense,” and the re-

quirement of recording the “infraction

of rules which caused the punishment,”

make it clear that the punishment is not

to be inflicted arbitrarily or without

cause. This revision is not obnoxious to

the Eighth Amendment; it represents

an effort to insure through specific

guidelines that corporal punishment in

Dade County will not go beyond “the

moderate use of physical force or physi-

cal contact, as may be necessary to

maintain discipline and to enforce school

order and rules.”

Although Policy 5144 does not on its

face conflict with the Eighth Amend-

ment, it is necessary to inquire further

and to determine whether corporal pun-

ishment as applied in the Dade County

schools offends Eighth Amendment

standards. In fact, we deem it more im-

portant to know how corporal punish-

ment is actually administered than to

know the relevant rules or regulations.*¢

25. Policy 5144 was revised again on Devem-

ber 9, 1970, but there were no substantive

changes in those parts of the policy dealing

with corporal punisiiment.

26. The opinion of Judge (now Justive)

Blackmun in Jackson v. Bishop, 8 Cir. 1968,

404 F.2d 571, 579, SSO, finds that corporal

punishment in prisons is difficult to ade-

quately control by rules or regulations :

“We are not convinced that any rule or

regulation as to the uxe of the strap, how-

ever seriously or sincerely conceived and

drawn, will successfully prevent abuse.

* ©¢ © ules in thin area seem often

to go unobaerved. * * * Regulations are

easily circumvented. * °" *° Corporal

punishment in easily xubject to abuxe in the

hands of the sadistic and the unscrupulous,

¢ © © Where power to punish is cranted

to persons in lower levels of administrative

authority, there ix an inherent and natural

difficulty in enforcing the limitations of

| #6...

262 498 FEDERAL REPORTER, 2 SERIES

{11} From the evidence presented,

we cannot say that the actual practice of

corporal punishment in the Dade County

schoo! system as a whole violates the

Eighth Amendment. llowever, we con-

clude that the plaintiffs’ evidence as to

the pattern, practice and usage of corpo-

ral punishment at Drew Junior High

School was such that the trial court

erred in dismissing Count Three under

Rule 41(b), F.R.Civ.P., and also erred

in dismissing Counts One and Two.

It is unclear whether the district

court directly considered whether the

pattern of punishment at Drew is viola-

tive of the Eighth Amendment. The

district ‘court found that “The instances

of punishment which could be character-

ized as severe, accepting the students’

testimony as credible, took place in one

junior high school.” There is no doubt

that this is a reference to Drew. In its

conclusions of law, the district court de-

clared that “Considering the system as a

whole, there is no showing * * *

that power. * * * There can be no argu-

ment that excessive whipping or an inap-

propriate manner of whipping of too great

frequency of whipping or the uve of studded

or overlong straps all constitute cruel and

unusual punishment. But if whipping were

to be authorized, how does one, or any

court, ascertain the point which would ‘lis

tinguish the permixsible from that which is

ervel and unusual?”

“e © © we have no difficulty in

reaching the conclusion that the use of the

strap in the penitentiaries of Arkansas is

punishment which, in this last thiel of the

20th century, runs afoul of the Fighth

Amendment; that the strap's use, irresper-

tive of any precautionary cunditions which

may be imposed, offends contemporary con-

cepts of decency and human signity and

precepts of civilization which we profess to

possexs * =

The problems of control suggested in Jack-

son must alxo exist to some extent in

achoolx, although perhaps to a lesser degree.

It is for thix reason that we are expevially

voncerned with the actual administration of

corporal punixhment in the Due County

schuols. If we found that alequate controls

did not exixt, or could not be established, we

would be forced to consider adopting the

remedy used in Jackson, namely, an injune-

tion against aoy use of Corporal puniviment.

That result must ensue if the controls prove

inadequate. it has been cogently argued

{of a violation of the Eighth Amend-

ment].” At another point, the district

court stated that “The evidence has not

shown that corperal punishment in con-

cept, or as authorized by the hool

Board, or as applicd throughout the ays-

tem, is arbitrary, capricious, unreasona-

ble or wholly unrelated to the legitimate

state purpose of determining its educa-

tional policy.” Apparently the district

court felt that a constitutional violation

could be shown only by evidence suffi-

cient to prove employment of crucl and

unusual punishment throughout the en-

tire Dade County school system.

{12] We think that such an approach

would be incorrect. In our view, a vio-

lation of the Eighth Amendment can oc-

cur at the 'evel of a single educational

institution. The record in this case

demonstrates that individual schools in

Dade County have great independence in

the development of a policy or sys'em as

to corpora! punishment.2? This maxes it

appropriate to examine whether the au-

that a total ban on this punishment is the

only effective contro! :

“While theoretically corporal punmshment

need not be brutal, tere ix no assurance

that it will be inflicted moderately or re-

sponsibly. In the heat of anger. especially

if provoked by personal abuse, some

teachers are likely to exceed legal bounds.

Moreover, if limited corporal punishment

were permitted, control woull be unlikely

to prevent the ‘really uomistakable kind of

satisfaction which some teachers feel in

applying the rattan A total ban of this

punishment would provide far wore etfec-

tive control.2°¢

“19. J. Kozol, Death at an Karly Age

16-17 (1967).

“20. A rule forbidding all corporal pun-

ixhment would probably receive more com-

pliance than the common law prince: ples he-

cause oll parties involved are mere hkely

to be awure of it and conscious of any view

lation. This would likely be reinforced by

the added case of convieting a violator,

simply by holding the school offic involv.

ed in contempt of a court order, where in

junctive relief is obtained.”

G ars Civ Rights —Civ. Lib.L Kev. Corporal

Punishment in the Public Schools, po oso

27. This is retleeted by the svatenm sleowerbenprenl

at Drew, as well ax by the fact that at beast

sixteen schools have discontinued the use of

corporal punishment,

INGRAHAM v. WRIGHT 263

Cite as HR 2 Ses Gite

thorities at Drew imposed a system of

punishment violative of the Eighth

Amendment."

From the evidence presented, it ap-

pears that Wright, the principal; Deli-

ford, the assistant principal; and

Barnes, an assistant to the principal, all

agrecd either explicitly or implicitly to

impose a harsh regime upon the stu-

dents at Drew. This is dramatically il-

lustrated by their cooperation in admin-

jstering corporal punishment to James

Ingraham. It is further demonstrated

by other instances where two or all

three administrators were present dur-

ing paddlings, or were aware of pad-

dlings after they occurred.** Consider-

ing the evidence as a whole, it would be

incredible to find that any one of these

three individuals was unaware of the

punishment policy pursued by the other

two. Thus, the regime at Drew Junior

High School was in fact a system of

punishment established and imposed by

those in authority.

28. Eighth Amendment causes in avalogous sit-

vations support this approach. In Nelson ¥.

Herne, 7 Cir. 1974, 491 F.2d 352. the Sev-

exth Circvit concluded that the district court

did not err in deciding that disciplinary beat-

jugs at the Indiana loys School cuustituted

cruel and unusual punishment. This school

had a population of about 409 juveniles. In

Wright v. McMann, 2 Cir. 1967, 387 F.2d

519, the Second Circuit held that the allega-

tions that the punishments imposed at a

particular New York State prison violated

the Eighth Amendment should not have been

dismissed.

29. For example, after Roosevelt Andrews

was paddled by Barnes in a bathroom, he

comp'ained to Wright while Deliford was

alxo present, and his father later complained

to Barnes, Deliford and Wright. On a later

occasion, Wright paddled Andrews and alleg-

edly hit him on the wrist while Deliford and

Barnes were present. Reginald Bloom testi-

fied that Deliford, Wright and Darnex man-

handled and struck a boy suspected of fight-

ing. Ray Jones testified that Deliford and

Berees were both present when he aud an-

other student received fifty licks each, and

that the two administrators took turus giv-

ing the licks. Larry Jones testified that Del-

iford and Barnes were both present when

he received “two knots on iny head.”

30. The district court stated in the order of

dismisxal thet, “After having heard the tes-

[13] The injuries sustained by vari-

ous students at Drew demonstrate that

the punishment meted out at this school

was often severe, and of a nature likely

to cause serious physical and psychologti-

cal damage. The evidence of paddlings

for relatively minor offenses, sometimes

without any opportunity for the student

to explain what happened show that the

punishment was sometimes arbitrary.

The frequency of the use of corporal

punishment suggests real oppressive-

ness.

{14] Whether punishment is crucl

and unusual in a constitutional sense de-

pends to a significant degree upon the

_circumstances surrounding the particu-

lar punishment. O’Nei! v. Vermont,

1892. 144 U.S. 323, 337, 12 S.Ct. 693, 36

L.Ed. 450 (Field, J., dissenting); Rob-

inson v. California, supra; Furman v.

Georgia, supra.**

In the present case, children aged

twelve through fifteen were punished

timovy in this cuse, this Court believes that

corporal punishment toay be administered in

such a way that the resultant psychological

harm to some students will be substuntial

and lasting.”

31. In O'Neil v. Vermont, Justice Field in dis-

sent opined that while the Eighth Amend-

ment was usually applied to punishments

which inflicted torture, and which were at-

tended with acute pain and suffering, it had

a wider applicability :

“The inhibition is directed, not only against

punishments of the character mentioned,

but against all punishments which by their

excessive length or severity are greatly

disproportioned to the offences charged.

The whole inhibition is against that which

is excessive © © °." 144 US. 339-340,

12 S.Ct. 699.

Justice Marshall in Furman v. Georgia, 408

U.S. at 324-327, 92 S.Ct. 2726, argues per-

suasively that Justice Field's approa ho was

adopted by the Court in later cases, includ-

ing Howard v. Fleming. 1903, 191 U.S. 1260,

24 S.Ct. 49, 48 L.Ed. 121; Weems v. United

States, 1910, 217 U.S. 349, 30 S.Ct. 544, 54

L.Ed. 793; Louisiana ex rel. Francis v. les-

weber, 1947, 329 U.S. 459, 67 S.Ct. 274, 91

L.Ed. 422, and Trop v. Vulles, 1953, 356 U.

Ss. 86, 78 S.Ct. 590, 2 L.Ed.24 62%. In Rob-

inson v. California, 1962, 370 U.S. UO, S2

S.Ct. 1117, 8 L.Ed.2d 758, the Court held

that a statute which made addiction to war-

264 498 FEDERAL REPORTER, 2d SERIES

for alleged misconduct at school. In

most instances, this misconduct did not

involve physical harm to any other indi-

vidual or damage to property. Some

students claim they never engayed in

misconduct at all, but were not given an

adequate opportunity to show their inno-

cence or were ignored when they at-

tempted to explain why they did not de-

serve punishment.

The system of punishment utilized at

Drew resulted in a number of relatively

serious injuries, and thus clearly in-

volved a significant risk of physical

damage to the child. Corporal punish-

ment also croates a risk of psychological

damage. Dr. Scott Kester, an assistant

professor of educational psychology at

the University of Miami, testified that

corporal punishment could damage a

child’s development by engendering anxi-

ety, frustration, and hostility, or by

causing sheer pathological withdrawal or

hatred of the school environment. He

further commented that since children

model their behavior after adults, a

child who is corporally punished may

learn from this that physical force is an

appropriate way in which to handle con-

flicts. Dr. Kester emphasized that the

child who is corporally punished often

becomes more aggressive and more hos-

tile than he was prior to his punishment.

coticn a mixdemeanor inflicted # cruel and

wnusval punishment. The Court stated that

the penalty provided by the atntute—ninety

days—w«as not, in the abstract. eruel aod un-

esual. However, the Court classified nar-

cotics adiction as an illness, and noted that,

“Evea one day in prison would be cruel

and unusual panishment for the ‘crime’ of

having a common coli.” 370 U.S. U67, 82

&.Ct. 1421.

32. Io 1972, a Taxk Forve of the National

Education Association suggested a namber of

alternatives to the use of corporal punish-

ment and propexed a “Molel Law Oautlawing

Corporal Punishment” :

“Corporal Punishment of Tupil<

“No person employe! or engaged by any

educational system within = this state,

whether publie or private, shall inflict or

rauxe to be inflicted corporal punishment

or bolily pain upon a pupil attending any

achool of institution within sach eduention

The evidence shows that corporal pun-

ishment is only one of a variety of mea-

sures available to school officials to pun-

ish students and to correct behavior.

As found by the district court, “alterna-

tive measures in use range from parent

and student conferences, the use of guid-

ance counselors and psychologists, where

available, to susp¢ aaion and expulsion.” *

Taking into consideration the age of

the individuals, the neture of misconduct

involved, the risk of physical and psy-

chological damage, and the availability

of alternative disc’ plinary measures, we

conclude that the system of punishment

at Drew was “excessive” in a constitu-

tional sense. The severity of the pad-

dlings and the system of paddling at

Drew, generally, violated the Eighth

Amendment requirement that punish-

ment not be greatly disproportionate to

the offenses charged. Our review of the

evidence has further convinced us that

the punishment administered at Drew

was degrading to the children at that in-

stitution.

{15} Our result is not inconsistent

with Ware v. Estes, supra, and other

cases involving corporal punishment of

children. In the Ware case, there was

evidence of abuse by some of the teach-

ers in the Dallas school district, but

there is no indication that the system of

system; provide, however, that any such

person may, within the scope of his em-

ployment, uxe and apply such amounts of

physicel restraint ax may be reasonable

* and necexsary:

“1) to protect himself, the papil er overs

from physical injury :

“9) to obtain pexsexsion of a weapon oF

other dangerous object upon the person or

within the control of a pupil;

“2) to protect property from serious harm:

and xuch physical restraine shall not he con-

strued to constitute corporal punishinent or

bodily pain within the meaning anl intend-

ment of this section, Every resolution,

bylaw, rule, ordinator. oF other act or au-

thority permitting er authorizing corporal

prnishment or bodily pain tu be antlioted

npen a pupal attending un school or educa

tional institution shall be void.”

See Report of The Task Perce on Corporal

Punishment, National Eelurcation Asso: tation,

p. 29-4.

INGRAHAN v. WRIGHT 265

Cite ax 1% F 2d Sis clot

‘ punishment in the school system as a

whole, or in any particular school, ap-

proached the severity and arbitrarine: :

of the system developed at Drew. Also,

the court in Ware noted that in one case

where a student was severely injured,

the assistant principal responsible for

the injury was suspended from his du-

ties for several months. There is no

indication from the record in this case

that any efforts were made in the rele-

vant time period to control or to moder-

ate the system of punishment estab-

lished by Wright, Deliford and Barnes.™

In Nelson v. Heyne, 7 Cir. 1974, 491

F.2d 352, 354 n. 4, the Scventh Circuit

states that, “The law appears to be well

settled in both state and federal juris-

dictions that school officials do not vio-

late 8th Amendment proscriptions

against cruel and unusual punishment

where the punishment is reasonable and

moderate.” (Emphasis added.) In the

Nelson case, the court agreed with the

district court's conclusion that paddiings

administered by guards at the Indiana

Boys School violated the Eighth Amend-

ment. The relevant facts in that case,

as described by the Seventh Circuit pan-

el, are comparable to the facts developed

in the district court with regard to

Drew.

Since the plaintiffs’ evidence makes a

prima facie case of violation of the

Eighth Amendment at Drew Junior

High School, the dismissal of Count

Three of the complaint must be reversed

and remanded to the district court for

further proceedings. While the defend-

33. Superintendent Whigham testified that

he believed there was “an inquiry or objec-

tton to that incident [Ingraham paddling of

October 6, 1970] by the area office” (Tr.

103). However, Earl Wells, a school dix-

trict director and admiuistrator, who investi-

gated the lugraham paddling, testified that

as a result of hix investigation, “1 foravwlut-

ed an opinion that Mr. Wright had « right

to paddle the child” (Tr. 234). When axked

whether he had formulated an opinion as to

whether or not Mr. Wright acted appropri-

ately concerning the paddling of Ingraham, .

Wells replied, “I think he did” (Tr. 234).

Wells explained that he formulated his opin-

fon on the basis of Wright's intent, but ad-

mitted that he did not know whether Ingra-

498 F 26—17'5

ants must, of course, be afforded an op-

portunity to offer evidence, the district

court may find no reason to Ryuire the

plaintiffs to offer their evidence a second

time. It may proceed with the case as

though defendants’ motion for dismissal

had been denied. See Federal Deposit

Insurance Corp. v. Mason, 3 Cir. 1940,

115 F.2d 548; Gulbenkian v. Gulbenkian,

2 Cir. 1945, 147 F.2d 173; 5 Moore

{@ 41.13[2)-

The dismissal of Counts One and Two

must be reversed and remanded for fur-

ther proceedings consistent with this

opinion. Our examination of the record

convinces us that there was sufficient

evidence produced by James Ingraham

and Roosevelt Andrews to avoid a direct-

ed verdict. There was evidence of a sys-

tem of punishment violative of the

Eighth Amendment. There was further

evidence from which a jury might con-

clude that Ingraham and Andrews were

victims of this system, Ingraham's de-

scription of how he was punished, and

the medical evidence concerning the ex-

tent of his injurics, would justify send-

ing his case to the jury. Andrews’ de-

scription of Barnes’ alleged assault upon

him in the bathroom, and his description

of his paddling by Wright in which his

wrist was injured, are enough to avoid a

directed verdict. On remand, the dis-

trict court may allow the joinder of

whatever state claims the plaintiffs may

have, in accordance with the rules con-

cerning pendent jurisdiction. See Unit-

ed Mine Workers v. Gibbs, 1966, 383 U.

S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218.¥

ham had resisted the paddling, and did not

find out how many licks Ingraham had re-

ceived (Tr. 235). We note that specific in-

tent to deprive a person of his constitutional

rights is not necessary to maintain a civil

rights action. Monroe v. Pape, 1961, 365

U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; Pier-

xon v. Ray, 1967, 28G U.S. 517, &7 S.Ct.

1213. 18 L.Fa.2d 288; Whirl v. Kern, 5 Cir.

1969. 407 F.2d 781 and cases cited therein.

34. Counsel for defendants almost conceded as

much upon eral argument wher in respouse

to an inquiry he stated:

“Your Honor. The class action count was

an equitable matter that was tried to the

court. When the evidence was finished on

266 498 FEDERAL REPORTER, 2d SERIES

{16} Assuming that Counts One and

Two continue to be for jury trial and

unless otherwise stipulated, the issues of

fact common to the actions at law and

the suit in equity must first be heard

and determined by a jury's verdict ren-

dered on one or both of Counts One and

Two. Beacon Theatres v. Westover,

1959, 359 U.S. 500, 79 S.Ct. 948, 3 L.

Ed.2d 988; Dairy Queen v. Wood, 1962,

369 U.S. 469, 473, 82 S.Ct. 894, 8 L.Ed.

2d 44; Thermo-Stitch, Inc. v. Chemi-

Cord Processing Corp., 5 Cir. 1961, 294

F.2d 486: Wright & Miller, Federal

Practice and Procedure: Civil § 2338.

{17} The complaint is somewhat un-

clear as to whether the plaintiffs allege

that Superintendent Whigham is liable

for damages for the paddlings to Ingra-

ham and Andrews. Paragraph 11 of the

Complaint states that, “Upon informa-

tion and belief, the defendant Whigham

and/or his agents and employees in the

administrative hierarchy of the Dade ,

County school system have knowingly

lent their tacit or explicit support and

approval to the methods of discipline

and behavoria! control described herein.”

Yet neither the “First Cause of Action,”

relating to Ingraham, nor the “Second

Cause of Action,” relating to Andrews,

mentions Whigham. Possibly the plain-

tiffs mean to hold Whigham responsible

in damages on the basis of a negligence

theory along the lines suggested in Rob-

that, we had a conference, and it was

agreed between the court and the counsel

thet Mr. Feinberg could present any a:kdi-

tional evirlence tint he wanted to present

on the two individual damage counts, then

the court would take under advisement my

motion for directed verdict on those two

counts. Now, he ruled on those two

counts that the punishment of lIograham

and the punishment of Andrews didu’t rixe

to constitutional proportions. Ingraham

got 20 licks, he had bruises, painful bruis-

es; Andrews had 2 or 3 lickings, of no

more than 5 licks each; and the judge

simply decided that there wax»—that these

didu’t meet any of the four principles of

Justice Brennan to rise to the dignity of

ervel and unusual punixlument, even taking

all the evilence awl construing it most a-

vorably to the plaintiffs. Now, he suid

then that if he had been tried for those

erts v. Williams, 5 Cir. 1972, 456 F.2d

819, 827, modified, 456 F.2d 834. Al-

though we think this matter should be

clarified and dealt with initially by the

district court, we note that there is some

question whether the Eighth Amend-

ment extends to include negligence.*’

IV.

DUE PROCESS

Plaintiffs allege that corporal punish-

ment as administered in Dade County

deprives students of due process of law

in violation of the Fourteenth Amend-

ment. They claim that students are pro-

vided no procedural safeguards before

corporal punishment is imposed. They

further claim that corporal punishment

violates due process because it is arbi-

trary, capricious and unrelated to the

achievement of any legitimate education-

al purpose.

A. Policy 5144, as revised effective

August 5, 1970, provides the following

procedural provisions:

“If it appears that corporal punish-

ment is likely to become necessary, the

teacher must confer with the princi-

pal. The principal will determine the

necessity for corporal punishment and

designate the time, place : the per-

son to administer said punishment.

In any case, the student should under-

stand clearly the seriousness of the of-

two counts before a jury, wud we had a

right to a jury trial and had demanded it

on those,—if he had been trying those be-

fore.a jury, had found no federal depriva-

tion, he could still under the pendeat ju-

rimliction theory have allowed it to go to

the jury for damages in turt. Llowever,

iu this case there would be no xaving of

judicial time and labor because we would

have to go back and have a new jury trial

all over ugain in order to get to that

point, so he dismissed all three.”

35. Roberts v. Williams, 5 Cie. 1972, 455 F2d

S19, SSE (Simpson, J.. specially concurring) ;

Awlerson v. Nosser, 5 Cir. 1972, 456 Fd

SSO (en hanes, SH iSimpson, J... concurring

sperially and joins) by Gewin, Colemau,

Dyer, Morgan, Clark, lugrsiam and Roney,

JJ.) 5 Varker x. MeKeithen, 5 Cie. 1074, 488

Fudd 353, 55G n. 6.

INGRAHAM v. WRIGHT 267

Cie as We Pod Tas crest

fense and the reason for the punish-

ment. Care should be taken that the

period of time betwcen the offense

and the punishment is net se long as

to cause undue anxicty in the pupil.”

The revision effective November 3, 1971

retains the substance of these provi-

sions, with a few additions. Under the

revision, the principal may designate an

individual with whom the teacher must

consult and who may direct the adminis-

tration of corporal punishment. Also,

the principal must maintain a log of all

instances where corporal punishment is

administered.

Plaintiffs in this case argue that if

corporal punishment is not per se uncon-

stitutional, still a child has a constitu-

tional right to be free from unwarranted

punishment. In reliance upon Dixon v.

Alabama, 5 Cir. 1961, 294 F.2d 150, and

later cases, the plaintiffs claim that cor-

poral punishment in Dade County is ad-

ministered without adequate procedural

safeguards. The defendants apparently

concede that corporal punishment in

Dade County is a relatively serious pun-

ishment. In their brief they state that

“Corporal punishment in the public

schools of Dade County, Florida, is a

Jast resort means of discipline as an al-

ternative to suspension or expulsion

* * *.” (Defendants’ Brief, p. 17.)

Defendants state that a list of infrac-

tions for which corporal punishment

would be administered would remove a

“judgment aspect” otherwise applicable

as to whether such punishment should

be administered to a particular student.

Defendants further say that a formal

hearing would not be desirable because

it would lengthen the time before pun-

ishment, and iead to undue anxiety on

the part of the student involved.

The district court found that, “There

is no published schedule of infractions

for which corporal punishment is autho-

rized, nor any formal procedural re-

quirements which must be observed be-

fore punishment may be administered.”

In its conclusions of law, the district

court stated that,

“The concept of due process is prem-

ised upon fairness and reasonable-

ness in light of the totality of the cir-

cumstances then existing. The due

process limitation does not unduly

confine officials who have the respon-

sibility of governing. Whether the

constitution requires that a particular

right obtain in a specific proceeding

depends upon a complexity of factors.

“It seems to this Court that if there

is any good purpose to be served by

corporal punishment in the schools,

such purpose would be long since pass-

ed if formal notice and hearing were

required before a paddling. There

has been no deprivation of ‘due proc-

ess.’

[18] We agree with the district

court that the full panoply of procedures

associated with the judicial process are

not required in determining whether to

administer corporal punishment. At the

same time, due process demands that the

procedures followed by school officials

comport with fundamental fairness. See

Hannah v. Larche, 1960, 363 U.S. 420,

80 S.Ct. 1502, 4 L.Ed.2d 1307.

The approach outlined in Whatley v.

Pike County Board of Education, N.D.

Ga.1971, No. 977 (unreported, three-

judge district court) suggests an appro-

priate resolution of the due process

question. In a case involving an eleven-

year-old pupil, the court said:

“Where, as here, the pupil was to be

promptly corrected for his transgres-

sions, and long-term consequences

stemmed only from his refusal to ac-

cept his punishment, the flexible ele-

ments of due process require only that

the student know and understand the

rule under which he is to be punished,

and that in cases where there is doubt

as to the actual offender, further in-

quirv be made by the school officials

concerned.”

: If a student must “know and under-

stand” the rule under which he is to be

punished, then clearly the school author-

ities must tell him before he is punished

268 498 FEDERAL REPORTER, 2d SERIES

precisely what he has done which merits

punishment. If the student concedes

that he has engaged in misconduct, then

all that remains is to determine whether

corporal punishment is appropriate, and

to determine the details of its adminis-

tration. In Dade County, under Policy

6144, the principal or his administrative

designee is responsible for making these

decisions. Thus, these decisions are

usually made by someone who was not di-

rectly involved in the circumstances sur-

rounding the alleged misconduct

(19, 20] If the student concedes that

he has engaged in certain conduct, but

claims that he did not know that such

conduct was prohibited, the school au-

thorities should proceed with caution.

Inquiry should be made to determine

whether the student knew or should

have known that his conduct violated

school rules or policies. Punishment of

any sort would be patently unfair where

the student was genuinely unaware of a

school regulation, and had no reason to

know that he was engaging in conduct

which might later be used as a basis for

punishment. Cf. St. Ann et al. v. Palisi

et al., 5 Cir. 1974, 495 F.2d 423. The

publishing of written rules of conduct

would obviously eliminate many prob-

lems which might arise in this area.

{21-23} If the student claims that

he is innocent of the conduct which mer-

its punishment, school officials should

make sufficient inquiries to insure that,

to the contrary, the student is guilty be-

yond any reasonable doubt. After all,

once the student is corporally punished,

no retraction of punishment is possible.

This means that eyewitnesses should be

questioned by the principal or his desig-

nee and the student should be allowed to

36. We are particularly disturbed by the tesci-

mony that whole clases of students were

corporally punished for the misconduct of a

few. A number of students claime! that

Physical education teachers in particular

woul! occasionally give everyone in the class

one or two swats when the class was noisy,

or when something was stolen. (Tr. 429-31,

501, 637-S, 647, 800-811, S75, S78.) CE. Se.

Ann et al. v. Palisi et al. 5 Cir. 1974, 495

F.2d 423.

call witnesses in his own behalf. Also

the student should be allowed to respond

to the witnesses against him, and in

some cases he should be accorded an op.

portunity to ask them relevant ques.

tions. Of course, all of this may take

place in an informal setting, and no for-

mal rules of procedure or evidence need

be followed.

{24} Examining the procedures pre-

scribed under Policy 5144, we find them

not inconsistent with the procedures we

have outlined. In implementing Policy

5144, most principals probably already

follow the procedural guidelines we have

suggeste? Of course, the testimony of

students om Drew indicates that this

has not uniformly been the case.*¢

B. Plaintiffs urge that corporal pun-

ishment is unrelated to the achievement

of any legitimate educational purpose.

The testimony of Dr. Kester supports

this claim to some extent. Dr. Kester

stated that could think of “no reputable

authority who recommends corporal pun-

ishment” (Tr. 737), and that he could

not think of “a renowned or leading au-

thority in psychology, educational psy-

chology, educational research, psychia-

try, who advocates corporal punishment

in the public schools or in the schools”

(Tr. 756). He modified his position

somewhat by stating the he could think

of no reputable authority who recom-

mended corporal punishment to suppress

behavior “without immediately following

it as soon as possible with a positive

reinforcement of acceptable behavior.”

Dr. Kester also conceded that there

might be some authorities who favored

corporal punishment,” and that “some

may say that it accomplishes the thing

that I have already said that it accom-

37. “As I said before, sir, I hase not read of

someone I consider to be an authority, &

leading authority in the fiell, in facet I can't

remember an instance, although I'm sure

there ix somebuily who write« sometbio¢

somewhere who could get it in privt—you

can get almost anything in) priut—whe said

fiat corpersl punishment ix a good thine.”

(Ur. 745-756.)

INGRAHAM v. WRIGHT 269

Cite as Hes Fle Jas citTay

plished: that you can terminate an un-

wanted behavior if you are willing to

pear the consequences, however negative

they may be” (Tr. 756). Also, counsel

for plaintiffs stated that he did not pro-

pose to establish that there is not a

shred of psychological or educational jus-

tification for corporal punishment.

[25,26] In light of the concessions

by plaintiffs’ expert and plaintiffs’

counsel, and in light of other cases in-

volving corporal punishment where there

apparently was evidence of the utility of

corporal punishment,™ we are unwilling

to say that mild or moderate corporal

punishment is unrelated to the achieve-

ment of any legitimate educational pur-

pose. However, in this case the severe

punishment meted out at Drew went be-

yond legitimate bounds.

In Dixon v. Alabama, 5 Cir. 1961, 294

F.2d 150, 157, this Court stated:

“Turning then to the nature of the

governmental power to expel the

plaintiffs, it must be conceded

limited and cannot be arbitrarily exer-

cised. Admittedly, there .must be

some reasonable and constitutional

ground for expulsion or the courts

would have a duty to require rein-

statement.”

In a recent case, this language was ex-

plained as follows:

“This passage and the constitutional

provision it elaborates do not license

federal courts to review and revise

school board disciplinary actions at

will. Application is limited to the

rare case where there is shocking dis-

parity between offense and penalty.”

Lee v. Macon County Board of Educa-

tion, 5 Cir. 1974, 490 F.2d 458, 460 n. 3.

In the present case, as regards Drew

Junior High School, there exists “a

shocking disparity” between the offenses

committed by various of the students

and the harsh punishment imposed by

schvol officiais. Thus, we conclude that

the system of punishment at Drew not

only violated the constitutional prohibi-

tion against crucl and unusual punish-

ment, but also violated due process. Cf.

Anderson v. Nosser, 5 Cir. 1972, 456 F.

2d 835 (en banc); St. Ann et al. v. Pali-

si et al., supra.

RIGHT OF THE PARENT AND

CHILD TO PROHIBIT CORPORAL

PUNISHMENT BY SCHOOL OF-

FICIALS

27) Paragraph 17 of the complaint

alleges that following a beating adminis-

tered to Roosevelt Andrews, Roosevelt's

father instructed school officials to re-

frain from assaulting, beating or other-

wise physically injuring his son. Para-

graph 18 of the complaint alleges that

despite these instructions, Roosevelt was

later paddled by schoo! officials. Para-

graph 22 of the complaint alleges that

corporal punishment abridges a stu-

dent's right to physical integrity, digni-

ty of personality, and freedom from ar-

bitrary authority in violation of the

Fourth, Ninth and Fourteenth Amend-

ments. At trial, Phyllis Straus, the

mother of four children who attend

Dade County schools, testified that de-

spite her explicit directions, her children

had been corporally punished. A num-

ber of children, including James Ingra-

ham, testified that they had refused to

accept corporal punishment, but were

paddled anyway. In our view, the plain-

tiffs clearly raised the ‘ssue of whether

school officials may properly administer

corporal punishment if the parent or

child has objected to its administration.

In Ware v. Estes, N.D.Tex.1971, 328

F.Supp. 657, the district court dismissed

an action where the plaintiffs alleged in

part that the defendants administered

corporal punishment without the prior

permission of the parent or student in

violation of ine Fourteenth Amendment.

> Se Ware v. Estes, supra, 323 F Supp. at 659; Glaser v. Marietta, supra, 351 F.Supp. at

270 498 FEDERAL REPORTER, 2d SERIES

The district court's reasoning is revesled

by the following portion of its opinion:

“Under the doctrine of Meyer v.

Nebraska, 262 U.S. 390, 43 S.Ct. 625,

67 L.Ed. 1042 (1922), the state cannot

unreasonably interfere with the liber-

ty of parents and guardians to direct

the upbringing and education of chil-

dren under their control. These pa-

rental rights are not beyond limita-

tion. Prince v. Commonwealth of Mas-

sachusetts, 321 U.S. 158, 166, 64 S.Ct.

438, 88 L.Ed. 645, 652 (1943). In or-

der for a deprivation of due process

under the Fourteenth Amendment, to

occur, the rules and policies of the

school district must bear ‘no reason-

able relation to some purpose within

the competency of the State.” Pierce

v. Society of Sisters, 268 U.S. 510,

635, 45 S.Ct. 571, 573, 69 L.Ed. 1070,

1076 (1924).

“According to the testimony, it can-

not be said that the Dallas Independ-

ent School District's policy on the use

of corporal punishment bears no rea-

sonable relation to some purpose with-

in the competency of the state in its

. Dueational function.”

328 F.Supp. at 658-659. On appeal, this

Court simply stated the following: “We

are in agreement with the well-consid-

ered memorandum opinion of the dis-

trict court * * * and its judgment

is affirmed.” Ware v. Estes, 5 Cir.

1972, 458 F.2d 1360.9

The result in Ware depends to some

extent upon the particular circumstances

revealed by the evidence in that case.

In the present case, the school authori-

ties have presented no evidence, and so

have had no opportunity to demonstrate

the extent to which corporal punishment

is a useful or necessary disciplinary

measure in Dade County.” In any event,

39. In Whatley v. Pike County Board of Edu-

cation, D.Ga.l87l (unreported, three-judge

distcict court), the court divacreed with

plaintiff's argument that “the sunctity of the

family relationship, the sovalled right of

privacy, andl the right to physical integrity

or dignity of personality” were violated by

the Geurgia statute authorizing corporal

the approach taken on this issue by the

district court in Ware deserves re-exam-

ination in light of certain recent Su-

preme Court cases which touch on the

relationship of parent and child, and the

right of privacy. These cases include

Stanley v. Illinois, 1972, 405 U.S. 645, 92

S.Ct. 1208, 31 L.Ed.2d 551; Wisconsin

v. Yoder, 1972, 406 U.S. 205, 92 S.Ct.

1526, 32 L.Ed.2d 15; Roe v. Wade, 1973,

410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d

147. It is wot appropriate at the

present time to attempt to resolve this is-

sue. Instead, we suggest that, upon re-

mand, the district court make findings

of fact and conclusions of law on this

aspect of the case.

The judgments of dismissal of each of

the counts of the complaint are reversed

and the cases are remanded for further

proceedings not inconsistent with this

opinion.

Reversed and remanded.

LEWIS R. MORGAN, Circuit Judge,

dissents.

LEWIS R. MORGAN, Circuit Judge

(dissenting) :

I respectfully dissent from the hold-

ings of the majority. I feel that the

majority opinion is in conflict with our

holding in Ware vy. Estes, N.D.Texas,

1971, 328 F.Supp. 657, aff'd 5 Cir. 1972,

458 F.2d 1360, cert. den., 409 U.S. 1027,

93 E.Ct. 463, 34 L.Ed.2d 321. The fa-

tmiliar section of the Civil Rights Act

under which these actions are founded,

42 U.S.C. § 1983, provides that a person

acting under color of state law who de-

prives another of rights, privilezes, or

immunities secured by the Constitution

shall be liable to the injured party in an’

action at law or suit in equity. It is, of

course, essential to recovery in cases un-

der Section 1983 that the plaintiff estab-

punishment. It is somewhat unclear «\aetls

what the plaintiff in this case argued,

40. It is by no means certain that corporal

punixhment is of the same importane in es

ery community. See, for example, Glaser v.

Marietta, supra.

IN RE YARN PROCESSING PATENT VALIDITY LITIGATION 271

Cite ns 408 F

lish an invasion of federally protected

constitutional rights; otherwise, there

is no federal jurisdiction. Kosrenberg v.

Martin, 2 Cir. 1973, 478 F.2d 520.

However, in a schoul system such as the

Dace County System, with approximate-

ly 12,500 teachers and administrative

personnel, a student population in excess

of 242.000 pupi!s, and 237 schools, a dis-

ciplinary event in one school, Drew Jun-

ior High School, cannot give rise to a

constitutional question and a right to

“have the federal courts intervene. For

this reason, I would affirm the judg-

ment of the district court which dis-

missed the actions.

In re YARN PROCESSING PATENT VA-

LIDITY LITIGATION.

SAUQUOIT FIBERS COMPANY,

Plaintiff-Appellee,

LEESONA CORPORATION et al.,

Defendants-Appellants.

KAYSER-ROTH CORPORATION (in its

Own name and d/b/a Kayser-Foth Ho

slery Company and Kayser-Roth Ho-

siery Co., Inc.), Plaintiff-Appeliee,

LEESONA CORPORATION, Defendant-

Appellant.

LEESONA CORPORATION, Plaintiff-

Appellant,

Vv.

The DUPLAN CORPORATION et al,

Defendants-Appellees.

No. 73-2420.

United States Court of Appeals,

Fifth Circuit.

July 29, 1974.

In a consolidated proceeding, validi-

ty of patents was challenged. The Unit-

ed States District Court for the South-

24 27) (le7Ta

ern District of Florida at Miami, C.

Clyde Atkins, J., 260 F.Supp. 74, grant-

ed partial summary judgment of patent

invalidity, and the patent owners appeal-

ed. The Cuurt of Appeals, Thornberry,

Circuit Judee, held that an issue in the

instant case as to date of “reduction to

practice’’ was not the same as an issue

in a previous Canadian case as to “date

of invention,” and the doctrine of collat-

eral estoppel was therefore not applica-

ble. The Court also held that an inven-

tor is permitted a reasonable amount of

experimentation after he has rendered

his idea a reality by constructing a

working model substantially embodying

claims later to be patented, and durirg

such phase a placing on sale or public

use will not bar a patent so long as pub-

lic use or sale is only incidental to the

experimentation. The question as to

whether the inventors at the time of li-

censing still had experimental intent and

purpose which would preclude a “‘public

use” or “on sale” bar to patentability

was a material fact issue precluding

summary judgment.

Reversed and remanded for further

proceedings.

1. Patents 80

Under statute, single public use or

sale of invention prior to “critical date,”

i. e., one year before application for pat-

ent, will result in invalid patent. 35 U.

S.C.A. § 102(b).

2. Patents 76

Even if no delivery is made, exis-

tence of sales contract plus reduction of

invention to reality in sense that it is

beyond stage of experimentation consti-

tutes placing “on sale” within statute

precluding right to patent where inven-

tion was in public use or on sale in

United States more than one year prior

te date of application. 35 U.S.C.A. §

102(b).

See publication Words and Phrases

fur other judicial constructions and

definitions.

‘ INGRAHAM v. WRIGHT 909

Cite as 323 F.2d WwW (1956)

required by t ose regulations. Any such

determination is a nullity.

Therefore, we conclude that the order

of the hearing examiner requiring repay-

ment, since not within the power con-

ferred upon him by regulation, is void,

and not properly before us for review."

* With respect to that portion of the order

‘§ requiring termination, the decision of the

district court is reversed, and the order

‘y,. is reinstated.

_ % Reversed.

on. _. @t al, Defendants-Appellees.

Fifth Circuit.

Jan. 8, 1976. |

Ke Aetion was brought by parents of

F and punitive damages and declara-

=m -tory and injunctive relief with respect to

=e of corporal punishment in school sys-

om The United States District Court

“£2 .the Southern District of Florida, Joe

. m, J., dismissed the action and the

> : Parents appealed. The Court of App :als,

‘mgr 498 F.2d 248, reversed and remanded.

2eeThe Court of Appeals, en bane, Lewis R.

SE Morgan, Circuit Judge, held that the

>- school superintendent was a person ame-

° ~Sx"Rable to suit under Civil Rights Act, that

ie did. -not apply to school discipline, that

Fried, ee

eerie In 80 holding, we note that the regulations

_*& \Mpecifically give the Commissioner the authori-

infliction of corporal punishment did not

deprive students of sulsstantive due proc-

ess and that the infliction of a paddling

did not subject school child to a grievous

loss for which Fourteenth Amendment .

due process standard should be applied.

Affirmed.

Gewin, Circuit Judge, filed an opin-

jon concurring in the result; Godbold, ,

Circuit Judge, with whom Brown, Chief

Judge, joined, filed a dissenting opinion;

and Rives, Circuit Judge, with whom

Goldberg and Ainsworth, Circuit Judges,

joined, filed a dissenting opinion.

1. Civil Rights 13.7

School board was not a “person” and

could not be sued under Civil Rights Act.

42 U.S.C.A. § 1983.

See publication Words and Phrases

for other judicial constructions and

definitions.

2. Civil Rights @-13.7

‘901 superintendent was a “per-

sor.” amenable to suit under Civil Rights

Act for compensatory and punitive dam-

ages and for declaratory and injunctive

relief as to use of corporal punishment in

school system. 42 U.S.C.A. §§ 1981-

1988, 1983; 28 U.S.C.A. §§ 1331, 1343;

U.S.C.A.Const. Amend. 8.

3. Criminal Law 1213

Eighth Amendment’s proscription

against cruel and unusual punishment

does not apply to the administration, of

discipline, through corporal punishment,

to public school children by public school

teachers and administrators. U.S.C.A.

Const. Amend. 8.

4. Criminal Law ¢1213

Eighth Amendment is intended to

be applied only to punishment invoked as

a sanction for criminal conduct. U.S.C.

A.Const. Amend. 8.

5. Criminal Law @=1213 -

Scrutiny of propriety of physical

force used by school teacher upon his or

her students should be function of state

ty to pursue any remedy authorized by law.

45 CFR § 181.15(c).

910

court with its particular expertise in tort

and criminal law questions, and the ad-

ministration of corporal punishment in

public schools, whether or not excessively

administered, does not come within scope

of Eighth Amendment protection. U.S.

C.A.Const. Amend. 8. _

6 Schools and School Districts #-176

- Record in Civil Rights action alleg-

ing that infliction of corporal punish-

ment deprived students of liberty with-

out due process of law supported finding

that plaintiffs had not shown that the

corporal punishment in concept or 2s au-

thorized by the school board or as ap-

plied throughout the school system was

arbitrary, capricious, or wholly unrelated

to legitimate state purpose of determin-

_ ing its educational policy. USCA.

Const. Amend. 14; West’s F.S.A. § 232-

7. Constitutional Law @=>253(2)

Right to substantive due process isa

guaranty against arbitrary legislation,

demanding that the law not be unrea-

sonable and that the means selected shall

have a real and substantial relation to

object sought to be obtained; test is

whether there be a matter touching pub-

lic interest which merits instant correc-

tion at hands of authorities and, if so,

that remedy adopted by rule-making au-

' thority be reasonably calculated to cor

rect it.

& Schools and School Districts o> 169

* Maintenance of discipline and order

in public schools is a prerequisite to es-

tablishing most effective learning atmo-

and as such is a proper object for

state and school board regulation.

9. Constitutional Law @=253(2)

Corporal punishment of public school

students as one of the means used to

achieve an atmosphere which facilitates

effective transmittal of knowledge does

have -a real and substantial relation to

the object sought to be obtained and

does not constitute a violation of sub-

stantive due U.S.C.A.Const.

Amend. 14; West's F.S.A. § 23227.

525 FEDERAL REPORTER, 2d SERIES

10. Schools and School Districts 176

Court having determined that corpo —

ral punishment itself and that corporal

punishment as circumscribed by school

board guidelines as set forth in its policy

statement was not arbitrary, capricious

or unrelated to legitimate educational .

refused to look at each individual --

instance of punishment to determine if it .

had been administered arbitrarily or ca-

priciously, since to do so would be a mis- .

use of judicial power; particularly in

view of possibility of a civil or criminal .

action in state court against teacher who

Const. Amend. 14; West's F.S.A. § 232-

27.

11. Constitutional Law @= 253(2)

Concept of due process is premised -

on fairness and reasonableness in light

of total circumstances.

12. Constitutional Law 2=253(2)

Infliction of a paddling does not

subject public school child to a grievous

loss for which Fourteenth Amendment

due process standards should be applied.

U.S.C_A.Const. Amend. 14.

13. Courts o=96(3)

Lower courts are bound by summary

decisions of United States Supreme

Court until that Court informs them oth-

Alfred Feinberg,

plaintiffs-appellants.

Frank A. Howard, Jr., Thomas G. Sp:-

cer, James A. Smith, Miami, Fla., for

defendants-appeilees.

Appeal from the United States Dis

trict Court for the Southern District of

Florida.

Before BROWN, Chief Judge, RIVFS,

GEWIN, BELL, THORNBERRY. COLE-

MAN, GOLDBERG, AINSWORTH,

GODBOLB, DYER, SIMPSON, “OX

GAN, CLARK, RONEY and GEF, Cir-

cuit Judges.°

or decision of this case, en banc.

Miami, Fia, for

INGRAHAM v. WRIGHT

Cite as 525 F.2d 909 (1976)

LEWIS R. MORGAN, Circuit Jude:

nd ~ Plaintiffs James Ingraham and Roose-

- velt Andrews, two junior high school stu-

dents in Dade County, Florida, filed a

_ complaint containing three counts on

+ January 7, 1971. Counts one and two

-. were individual actions for compensatory

_¢ and punitive damages brought under 42

.. US.C. §§ 1981-88, with jurisdiction

<._daimed under 28 U.S.C. § 1331 and

za* § 1343. Plaintiffs claimed that personal

4-2 injuries resulted from corporal punish-

~- ment administered by certain defendants

26 in alleged violation of their constitution-

. c "

~- ..° al rights, in particular their right to

>." freedom from cruel and unusual punish-

ss ment. Specifically, plaintiff Ingraham

5 »alleges in count one that on October 6,

~— = 1970, defendants Principal Wright and

‘aa =. Assistant Principals Deliford and Barnes

sy. struck plaintiff repeatedly with a wood-

‘=--en instrument, injuring plaintiff and

ike. causing him to incur medical expenses.

ne ' Plaintiff testified that this paddling was

*e:-precipitated by his and several other

“se--children’s disruption of a class over the

iea:-objection of the teacher. Defendant

ire: Wright removed plaintiff and the other

sex» disruptive students to his office where-

%- upon he paddled eight to ten of them.

‘tie Wright had initially threatened plaintiff

“with five blows, but when the latter re-

-fused to assume a paddling position,

‘<2 Wright called on defendants Deliford

"§ipand Barnes who held plaintiff in a prone

= position while Wright administered

#sx twenty blows. Plaintiff complained to

‘$iF his mother of discomfort following the

rr paddling, whereupon he was taken to a

ye hospital for treatment. Plaintiff intro-

v@-duced evidence that he had suffered a

*¢>-painful bruise that required the prescrip-

ot = Sion of cold compresses, a laxative, sleep-

-23cS'ing and pain-killing pills and ten days of

A~Test at home and that prevented him

istcdrom sitting comfortably for three

. ’@

911

boys’ restroom by Assistant Principal

Barnes. Plaintiff testified that he was

taken by a teacher to Barnes for the

offense of tardiness, but that he refused

to submit to a paddling because, as he

explained to Barnes, he had two minutes

remaining to get to class when he was

seized and was not, therefore, guilty of

tardiness. Barnes rejected plaintiff's ex-

planation and, when plaintiff resisted

punishment, struck him on the arm,

back, and across the neck.

Plaintiff Andrews was again spanked

on October 20, 1970. Despite deniais of

guilt, plaintiff was paddled on the back-

side and on the wrist by defendant

Wright in the presence of defendants

Deliford and Barnes for having allegedly

broken some glass in sheet metal class.

As a result of this paddling, plaintiff

visited a doctor and received pain pills

for the discomfort, which lasted approxi-

mately a week.

Count three is a class action brought

by plaintiffs Ingraham and Andrews as

representatives of the class of students

of the Dade County school system who

are subject to the corporal punishment

policies issued by defendant members of

the Dade County School Board. This

count seeks final injunctive and/or de-

claratory relief against the use of corpo-

ral punishment in the Dade County

School Systern and ‘can be divided into

three constitutional arguments. First

plaintiffs claim that infliction of corporal

punishment on its face and as applied in

the present case constitutes cruel and °

unusual punishment in that its applica-

tion is grossly disproportiouate to any

misconduct in which plaintiffs may have

engaged. Second, plaintiffs claim that

because it is arbitrary, capricious and un-

related to achieving any legitimate edu-

cational goal, corporal punishment de-

prives al! students of liberty without due

process of law in violation of the Four-

teenth Amendment. Plaintiffs also al-

lege that the failure of defendants to

promulgate a list of school regulations

and corresponding punishments increases

the capriciousness of the punishment.

Finaliy, plaintiffs claim that defendants’

912

failure to provide any procedural safe-

guards before inflicting corporal punish-

ment on students, including adequate no-

tice of alleged misconduct, hearing, ex-

amination and cross-examination, repre-

sentation and notice of rights, consti-

tutes summary punishment and deprives

students of liberty without due process

of law in violation of the Fourteenth

Amendment.

Plaintiffs presented their evidence in

count three of the complaint in a week-

long trial before the district court with-

out a jury. At the close of plaintiffs’

case, defendants moved for dismissal un-

der Rule 41(b), F.R.Civ.P. which provides

in part:

After the plaintiff, in an action tried

_ by the court without a jury, hes com-

pleted the presentation of his evidence,

the defendant, without -waiving his

right to offer evidence in the event

the motion is not granted, may move

for a dismissal on the ground that

upon the facts and the law the plain-

tiff has shown no right to relief. The

court as trier of the facts may then

determine them and render judgment

against the plaintiff or may decline to

render any judgment until the close of

all the evidence. If the court renders

judgment on the merits against the

plaintiff, the court shall make findings

as provided in Rule 52(a). Unless the

court in its order for dismissal other-

wise specifies, a dismissal under this

subdivision and any dismissal not pro-

vided for in this rule, other than a

dismissal for lack of jurisdiction, for

improper venue, or for failure to join a

party under Rule 19, operates as an

adjudication upon the merits.

By agreement of the parties the court

considered the evidence offered to sup-

port count three as having been offered

on counts one and two and as if upon

motion for directed’ verdict for these two

counts. The district court then dis-

missed count three of the compiaint and,

concluding that a jury could not lawfully

find that either of the piaintifis sus-

tained a deprivation of constitutional

525 FEDERAL REPORTER, 2d SERIES

rights, likewise dismissed counts one and

two. .

I. Jurisdiction.

{1,2] Defendants assert that there is

no federal jurisdiction over count three

under 42 U.S.C. §§ 1981-1928 and w

U.S.C. § 1331 and § 1343 because the

Dade County School Board and the Su-

perintendent of Schools, Edward L.

Whigham, are not “persons” and hence

are not amenable to suit. Defendants

rely on City of Kenosha v. Bruno, 412

U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109

(1973), in which the Supreme Court held

that a municipality was not a “person”

within the meaning of § 1933. While it

is well-settled that a school board is not

a “person” and thus cannot be sued un-

der § 1983, it is clear that a school super-

intendent is a “person” amenable to suit

Sterzing v. Fort Bend Indeperdent

School District, 496 F.2d 92, at 93, n. 2

(5th Cir. 1974).. We, therefore, hold that

jurisdiction was improperly granted

against the Dade County School Board

and, accordingly, that part of the com-

plaint must be dismissed. Jurisdiction to

proceed against Edward L. Whigham,

Superintendent of Schools, was, however,

properly granted.

TI. Cruel and Unusual Punishment.

{3} Piaintiff-appellants allege that

the infliction of corporal punishment on

public school children on its face, and as

applied in the instant case, constitutes

cruel and unusual punishment under the

Eighth Amendment sufficient to entitle

plaintiffs to damages and injunctive re-

lief against the Dade County School

Board under § 1983. We do not agree.

It is the opinion of the majority of this

court that the Eighth Amendment does

not apply to the administration of disci-

pline, through corporal punishment, to

public school children by public school

teachers and administrators.

{4} The Eighth Amendment states:

“Excessive bail shail not be required, ner

excessive Tines imposed, nor cruel ard

unusual punishments inflicted.” ot

only the connotation of the words “bail,”

—

af.

INGRAHAM v¢. WRIGHT

913

Cite as 525 F.2d Hw (1976)

and “fine,” but the legislative history '

concerning enactment of the bill of

rights supports an argument that the

Eighth Amendn.ent was intended to be

applied only to punishment invoked as a

sanction for criminal conduct? Indeed,

Supreme Court decisions which have in-

terpreted the Amendment have focused

on the inherent cruelty of penalties “in-

flicted by a judicial tribunal in accord-

ance with law and retribution for crimi-

nal conduct.” Negrich v. Hohn, 246

F.Supp. 173 (W.D.Pa.1965), affirmed on

other grounds, 379 F.2d 213 (3rd Cir.

1967) (emphasis added). E. g., Furman

v. Georgia, 408 U.S. 238, 92 S.Ct. 2726,

33 L.Ed.2d 346 (1972) (death penalty as

1. The legislative history surrounding the enact-

ment of the cruel end unusual clause indicates

that it was intended to prevent the tortious

and barbarous methods used in some Europe-

an countries to extort confessions and to pun-

ish crimes. The following argument delivered

in favor of the proposed “cruel and unusual

clause” of the Bi of Rights indicates the in-

tended limits of its scope: ;

[Congress will) have to ascertain, point out,

and determine, what kinds of punishments

shall be inflicted on persons convicted of

crimes. They are nowhere restrained from

inventing the most cruel and unheard of

punishments and annexing them to crimes ;

and there is no constitutional check of them,

but that racks and gibbets may be arnoungst

the ..ost mild instruments of their discipline.

Granucci, Nor Cruel and Unusual Punishments

inflicted: The Original Meaning, 57 Cal.L.Rev.

839 at 841 (1969), quoting from 2 J. Elliot, The

Debates in the Several State Conventions on

the Adoption of the Federal Constitution, 111

(2d Ed. 1881). (Emphasis added).

2. We are not persuaded by the majority's ar-

gument in the origina) pane! decision that the

~ Supreme Court decision in Trop v. Dulles re-

quires a holding that the Eighth Amendment

reaches the administration of corpora! punish-

crucl and unusual punishment); lobin-

son v. California, 370 U.S. 660, 82 S.Ct.

1417, 8 L.Ed.2d 758 (1962) (state's impris-

onment of narcotics addict as crucl and

unusual punishment); Weems v. United

States, 217 U.S. 349, 30 S.Ct. 544, 54

L.Ed. 793 (1910) (disproportionate pun-

ishment of fifteen years to hard labor

for conviction of strict liability offense

as cruel and unusuzl punishment).

Although the Supreme Couff has not

yet discussed the applicability of the

Eighth Amendment to corporal punish-

ment administered in the public schools,

a few lower courts have considered the

issue and divided on its resolution? We

scription of a ‘consequence that will befall

one who fails to abide by regulating provi-

sions Id. at 97 [78 S.Ct. 598).

“infliction of corporal punishment by pub-

lic school personne! meets both tests.” In-

graham v. Wright, 498 F.2d 248, 259-60, n.

20 (Sth Cir. 1974).

In Trop v. Dulles, the Supreme Ccurt was

addressing the constitutional propriety of

§ 401(g) of the Nationality Act of 1940 which

provides for the loss of United States citizen-

ship by a national who has deserted the mili-

tary forces of the United States during a time

of war and who has been convicted by court-

martial. In setting up a “purpose” test to de-

termine what is “penal” and what is thereby

within the scope of the Eighth Amendment's

prohibition against crue! and unusual punish-

ment, the court was countering the govern-

ment’s argument that the statute was “non-pe-

nal” in that it provided for loss of citizenship

as opposed to incarceration. 356 U.S. 96, 28—-

99, 78 S.Ct. 590, 2 L.Ed.2d 630, 64).

addressing the imposition of an essentially

crimina! sanction. The court several times re-

fers to the desertion for which defendant was

losing his citizenship, as a “crime,” e. g., 356

U.S. at 96, 78 S.Ct. 590, 2 LEd 2d at 640. In

addition, denationalization under 401(g) could

occur. only after conviction by court-martial

under 10 U.S.C. § 885, enacted August 10,

1956. The loss of citizenship found to be

reached by the Eighth Amendment in Trop

contains elements of criminal sanctions im-

posed by a judicjal tribunal which are striking-

ly absent in the application of discipline in the

3. Decisions discussing the applicability of the

Eighth Amendment to corporal punishment

administered in the public schools can be clas.

sified into three groups: (!) case holding that

the Eighth Amendment does apply to c poral

914 525 FEDERAL REPORTER, 2d SERIES

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.

In Sims v. Waln, supra, the court dis-

missed an action for damages and in-

junctive relief arising out of facts simi-

lar to those present in the instant case,

stating:

Regarding the Eighth Amendment

claim there is an initial distinction that

- must be made between criminal penal-

ties and civil penalties. The distinc-

tion must be made because the Eighth

__ Amendment is not applicable in a civil

context. Concerning the Cruel and

‘Unusual Punishment clause of the

Eighth Amendment the Supreme

Court has stated that: ‘the primary

purpose of that clause has always been

considered, and properly so, to be di-

rected at the method or kind of pun-

ishment imposed for the violation of

criminal statutes . . .. Powell

v. Texas, 392 U.S. 514, 531-32, 88 S.Ct.

2145, 2154, 20 L.Ed2d 1254 (1968). Id.

at 549 (emphasis added).

Likewise, in Gonyaw v. Gray, supra, the

district court of Vermont, in dismissing

an action for damages and injunctive re- |

lief against a school board which im-

posed corporal punishment on its stu-

dents, stated:

. . it is, of course, essential to

_ Wecovery in both cases under ¢ 1983

that the plaintiff establish an invasion

punishment in public schools—B8ramiett v.

Wilson, 495 F.2d 714 (8th Cir. 1974); (2) cases

holding that the Eighth Amendment does not

apply to corporal punishment in public

schools—Sims v. Wain, 388 F.Supp. 543 (S.D.

Ohio 1974), and Gonyaw v. Gray, 361 F.Supp.

3€$ (D.Vt.1973), and (3) cases that assume,

without deciding, that the Eighth Amendment

applies to imposition of corporal punishment

schools but that in instant case determine

that punishment complained of was not severe

enough to constitute cruel and unusual punish-

‘ment——Baker v. Owen, 395 F.Supp. 294 (6D.

N.C.1975), aff'a —— U.S. ——., 96 S.Ct. 210, 46

_L-Ed2d 137 (1975); Glaser v. Manetta, 351

Supp. 555 (W.D.Pa.1972); Ware v. Estes,

328 F.Supp. 657 (N.D.Tex.1971), atf'd per cu-

viam, 456 F.2d 1360 (Sth Cir. 1972); Whatiey

Pike County Board of Education, C.A. 977

of federally protected constitutional

rights Mere tortious con-

duct does not constitute a deprivation

of constitutional rights under this sta

ute. .

This statute [authorizing corporal

punishment] does not offend the pro-

tection against cruel and unusual pun-

ishment since this amendment provides

a limitation against penalties imposed

for criminal behavior. . . . Since

neither plaintiff was punished for an

offense which was criminal in nature,

the Eighth Amendment does not pro-

scribe the conduct assigned to the de-

fendants. Id. at 268 (emphasis

added.) ‘

In support of their argument that cor-

poral punishment in a public school con-

text is cruel and unusual punishment,

appellants cite Jackson v. Bishop, ® Cir.

1968, 404 F.2d 571 in which the Eighth

Circuit Court of Appeals enjoined the

use of a strap in prisons. We do not

find prisons and public schools to be

analogous in the context of Eighth

Amendment coverage. As discussed, su-

pra, the function of the Eighth Amend-

ment’s prohibition against cruel and un-

_ usual punishments was intended to pre-

vent the imposition of unduly harsh pen-

alties for criminal conduct. It is not

an unreasonable interpretation of the

Eighth Amendment to include within its

coverage discipline imposed upon persons

incarcerated for criminal conduct, since

(N.D.Ga.1971) (three judge court); and Sims v.

Board of Education, 329 F.Supp. 678 (D.N.M.

1971).

4. The district court of Vermont has recentiv

granted jurisdiction under 28 U.S.C. § 134243)

to entertain a claim that admunistration of ex-

cessive corporal punishment violated the stu-

dent-claimant’s right to freedom frem cruel

and unusual punishment. Roberts v. Way, 394

F.Supp. 856 (D.Vt.1975). The court distin-

guished Roberts from Gonyaw v. Gray. supra.

in which dess severe punishment was aileged.

The extent of the holding. however, was mere-

ly a findsng that the claim was not so whclly

insubstantial or frivolous as to Givest the cour

of jurisdiction; the applicability of the Exgnth

Amendment to severe corporal

was not reached. :

INGRAHAM v. WRIGHT 915

Cite as S25 F.2d vu (1076)

such discipline is part of the total pun-

subjected for his crime and, as such, is a

proper subject for Eighth Amendment

scrutiny. To extend the Jackson case

from a prison context to a public school

situation would, however, distort the in-

tended scope of the Amendment.’

We do not mean to imply by our hold-

ing that we condone child abuse, either

in the home or the schools. We abhor

any exercise of discipline which could re-

sult in serious or permanent injury to

the child. Indeed, if the force used by

defendant. teachers in disciplining plain-

tiff was as severe as plaintiffs allege, a

Florida state court could find defendants

civilly and criminally liable for tortious

conduct exceeding the level of severity

authorized by 23227 of Fila Stat.Ann.

and by Dade County School Board policy

5144. The basis of such actions is, how-

ever, tort and criminal law, not federal

constitutional law. We find it neither

(5) In short, scrutiny of the propriety

fit

‘

—_—— a

not excessively administered, does nut

come within the scope of Eighth Amend-

ment protection. Because the plaintiffs

do not allege facts which could support a

finding that defendants have deprived

them of their right to frecdom from cru-

el and unusual punishment, neither the

legal action for damages included in

counts one and two nor the equitable

action for injunctive relief set out in

count three can lie.

III. Substantive Due Process.

Plaintiffs allege that “the infliction of

corporal punishment on its face deprives

all students as well as plaintiffs

of ‘liberty without due process of law’ ’in

violation of the Fourteenth Amendment

to the United States Constitution since it

is arbitrary, capricious, and unr lated to

achieving any legitimate educational

purpose.” In essence, plaintiffs here al-

‘lege a deprivation of their right to sub-

stantive due process, as this right to

freedom from arbitrary governmental

action has come to be known. We find

this argument unpersuasive.

Statutory authority for the use of cor-

poral punishment in Florida public

schools is found by implication in § 232-

27 of Fla.Stat.Ann. which provides:

Each teacher or other member of the

staff of any school shall assume such

authority for the control of pupils as

may be assigned to him by the princi-

pal and shall keep good order in the

cepted means of disciplining and inculcating

concepts of obedience and , of-

fends current notions of decency and human

dignity. See also Nelson v. Heyne, 491 F.2d

352 (7th Cir. 1974) in which the court held

that paddling of juveniles in a correctional in-

stitute constituted crvei and unusual punish-

ment, but that corporal punishment adminis-

tered in public could be upheld. id. at

354.

—

916 525 FEDERAL REPORTER, 2d SERIES

classroom and in other places in which

he is assigned to be in charge of pu-

pils, but he shail not inflict corporal

punishment before consulting the prin- .

cipal or teacher in charge of the

school, and in no case shall such pun-

ishment be degrading or unnecessarily

severe in its nature. (Emphasis add-

ed.)

In addition the Dade County Schoo!

Board Policy 5144, effective at the time

plaintiff's cause of action arose, explicit-

ly authorized corporal punishment, set-

ting forth guidelines under which it was

to be administered.‘ |

[6-9] - After reviewing the record, we

agree with the district court’s finding

that “the evidence has not shown that

corporal punishment in concept, or as au-

thorized by the school board, or as ap-

plied throughout the school system, is

arbitrary, capricious, or wholly unrelated

to the legitimate state purpose of deter-

«& aD Say Seen > Saree

tl. Punishment: Corporal Punishment

Punishment in the general sense is the in-

flicting of a penalty for an offense. Corpo-

ral punishment is generally applied to the

body of the offender or is physical punish-

ment @s opposed to other forms of punish-

ment and is administered as a means ¢.

changing the behavior of the student.

Therefore, it is important to analyze whether

or not this goal will be accomplished by

such action.

‘ Corporal punishment may be used in the

case where other means of seeking coopera-

tion from the student have failed. if it ap-

pears that corporal punishment is likely to

become necessary, the teacher must confer.

that the period of time between the offense

and the punishment is not so long as to

cause undue anxiety in the pupil. The pun-

ishment must be administered in kindness

and in the presence of another adult, at a

time and under conditions not calculated to

hold the student up to ridicule or shame.

In the administering of corpora! punish-

ment, no instrument shal. be used that will

produce physical injury to the student, and

mo part of the body above the waist or be-

low the knees may be struck. The person

mining its educational policy.” The

plaintiffs’ right to substantive due proc-

es3 is

; @ guaranty against arbitrary

legislation, demanding that the law

not be unreasonable and that the

means selected shail have a real and

substantial relation to the object

sought to be attained. The test is

whether there be a matter touching

the public interest which merits in-

stant correction at the hands of the

authorities and, if so, that the remedy

adopted by the rule-making authorities

be reasonably calculated to correct it

Sims v. Board of Education, supra, at

634.

Certainly, maintenance of discipline and

order in public schools is a prerequisite

to establishing the most effective learn

ing atmosphere and as such is a proper

ebject for state and school board regula-

tion.’ Without the existence of discipli-

administering the corpora] punishment must

realize his own personal! liabilities if the stu-

dent being given corporal punishment is

physically injured.

Corporal punishment should never be ad-

ministered to a student whom school person-

nel know to be under psychological or medi-

cal treatment unless there has been a pre-

conference with the school prychologist or

the physician.

Policy 5144 was revised extensively, effec-

tive November 3, 1971, almost ten months aft-

er this action was filed. The revision sets a

maximal limit on the number of strokes which

can be applied (five for elementary school chii-

dren and seven for junior and senior hgh

school children), requires punishment to de ac-

ministered “posteriorly” and in no case about

* the head and shoulders, emphasizes consicera-

tion of the seriousness of the oftense in ceter-

mining the proper punishment, and requires a

recording of the infraction which jusufied the

punishment.

7. See Sims v. Wain, 388 F.Supp. 543 (S.D.Ohio

1975), in which the court stated:

A teacher is responsible for the discipline in

his school, and for the progress, conduct,

and deportment of his pupils. ft is his duty

to maintain good order and to require of his

pupils a faithful performance of their cues.

To enable him to discharge such a duty ef-

fectivély, he must have the power to enforce

prompt obedience to his lawful commards.

For this reason, in proper cases. he muy

inflict corporal punishment on refractcry pu-

pils. Id. at 546.

nary sanctions for misbehavior, students

who dezire to learn would be deprived of

their right to an education by the more

disruptive members of their class. We

are unwilling to hold that corporal pun-

ishment, as one of the means used to

achieve an atmosphere which facilitatcs

the effective transmittal of knowledge,

has no “real and substantial relation to

the object sought to be attained.”

{10} Certainly the guidelines set

down in Policy 5144 establish standards

which tend to eliminate arbitrary or ca-

pricious elements in any decision to pun-

ish. Having determined that corporal

punishment itself and corporal punish-

ment as circumscribed by the guidelines

in Policy 5144 is not arbitrary, capri-

cious, or unrelated to legitimate educa-

tional goals, we refused to look at each

individual instance of punishment to de-

termine if it has been administered arbi-

trarily or capriciously. We think it a

misuse of our judicial power to deter-

mine, for example, whether a teacher

has acted arbitrarily in paddling a par-

ticular child for certain behavior or

whether in a particular instance of mis-

conduct five licks would have been a

more appropriate punishment than ten

licks. We note again the possibility of a

civil cr criminal action in state court

court’s duty to judge the wisdom of par-

INGRAHAM vr. WRIGHT 917

Cite ax S25 F.2d 900 (1970)

1V. Procedural Due Process.

Plaintiffs also allege as part of their

claim for injunctive and deciaratory re-

lief that defendants have deprived the

class which plaintiffs represent of its

right to procedural due process. Plain-

tiffs argue that procedural due process

requires (1) that a schedule of school

regulations and punishments to be ac-

corded for their breach be established;

(2) that notice be given to the student of

the offense for which he is to be pun-

ished, and (3) that a hearing with oppor-

tunity for examination and cross-exami-

nation and with a right to counsel be

accorded before punishment is inflicted.

{11,12} The concept of due process is

premised upon fairness and reasonable-

ness in light of the totality of circum-

stances. Hannah v. Larcht, 363 U.S. 420,

80 S.Ct. 1502, 4 LEd2d 1307 (1960);

Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123, 71 S.Ct. 624, 95

L.Ed. 817 (1951). “{WJhether any pro-

tections are due depends on the extent

to which an individual will be ‘con-

demned to suffer grievous loss.'” Joint

Anti-Fascist Refugee Committee v.

McGrath, supra, at 168, 71 S.Ct. at 646

(Frankfurter, J., concurring), quoted in

Morrissey v. Brewer, 408 U.S. 471, at

481, 92 S.Ct. 2593, at 2600, 33 L.Ed.2d

484 (1972) (emphasis added). We do not

believe that infliction of a paddling sub-

jects a schoolchild to a grievous loss for

which Fourteenth Amendment due proc-

ess standards should be applied.

{13} In its argument for procedural

safeguards, the dissent relies on Baker v.

Owen, supra, a three-judge district court

judgment summarily affirmed by the

Supreme Court. In Baker, the three-

' judge district court upheld a North Caro-

lina statute authorizing corporal punish-

ment against plaintiffs’ argument that

the constitutional concept of familial pri-

vacy bars school officials from spanking

school children dver parental objection.

In addition, the court set forth certain

his own personal! liabilities if the student being

given corporal punishment is physically in-

jured.” }

| _ REST COPY AVAN AIF

918 525 FEDERAL REPORTER, 2

procedural requirements to accompany

the administration of corpora! punish-

ment. The Supreme Court's uffirmance

of this three-judge district court judg-

ment was a summary affirmance with-

out opinion. The appeal of that lower

court judgment was brought only by the

plaintiffs and the only question present-

ed to the Supreme Court was whether

parental objection could bar the use of

corporal punishment by school officials;

defendant state and school officials did

mot appeal that part of the judgment

requiring procedural safeguards. Ac-

cordingly, the three-judge district court's

pronouncement on procedural require-

ments was never before the Court and,

therefore, its summary affirmance of

that lower court’s judgment does not

bind us to a part of the judgment not

appealed.’

In holding that procedural safeguards

_ accompanying the use of corporal pun-

ishment in public schools are not consti-

tutionally mandated, we are cognizant of

the Supreme Court’s holding in Goss v.

Lopez, 419 U.S. 565, 95 S.Ct. 729, 42

®. While the Supreme Court has held that low-.

er courts are bound by summary decisions of

the Supreme Court until that Court informs

them otherwise, Hicks v. Miranda, —— US.

——, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), we

believe that Hicks can be readily distinguished

from the present case. In Hicks, the Supreme

Coust was dealing with the precedential value

of a dismissal for want of a substantial federal

question; in its holding that such a dismissal

carried the same impact as a disposition on

the merits, the Court was countering the argu-

ment that the precedential value of a dismissal

was equivalent only to that of a denial of cer-

tiorari. The Court's holding certainly cannot

be interpreted to mean that a summary affirm-

ance by the Supreme Court of a lower court

judgment is binding on questions not present-

ed to that Court on appeal. See, Swarb v.

Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L-Ed.2d

138 (1972) (Supreme Court's affirmance of

District Court judgment insofar as it refused

to declare a state's statute unconstitutional

does not constitute approval of other aspects

and details not before Supreme Cour? where

mo cross appeal taken by defendant).

10. In applying the “grievous loss” standard,

discussed supra, to the present facts we are

not ignoring the “de minimus” test employed

in Goss in which the court stated: “ ‘Whether

SERIES

L.Ext.2d 725 (1975), that an Ohio statute

authorizing suspension of public school

students without notice of the offense

for which suspended and without oppor-

tunity for a hearing violates students’

rights to procedural due process. The

basis for the Court’s holding that due -

process should have been afforded plain-

tiffs was its determination that erduca-

tion was a substantial property interest

‘ that the State of Ohio had confe-red on

plaintiffs and “having chosen to extend

the right to an education to people of

appellees’ class generally, Ohio may not

withdraw that right on grounds of mis-

conduct absent fundamentally fair proce-

dures . ..” Id., 419 U.S. at 574,

95 S.Ct. at 736, 42 L.Ed.2d at 731.'*

Noting that a recorded suspension could

harm a student’s reputation and inter-

fere with later opportunities for higher

education and employment, the Court

also held that a student's “liberty” inter-

est in maintaining his good name and

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