# Petition — Ingraham v. Wright

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 651

## Text

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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

dm

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

12

12

10

10

9, 10

13

10

10

12

10

10

12

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.

-|-

a

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

I

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:

Il

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-

1/
nent portion of Rule 41(b), Federal Rules of Civil Proccdure.

1/

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

‘

2/
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.

ao

— 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

3/
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

3/
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.

if

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

i
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,
v.
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.

I.

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
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
* * © that that power is not un-
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.

V.

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,
v.
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,

v.
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

Ԥ 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., dis

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0213%3A01. Public record. Not legal advice.