Petition — Warren v. Killory

IN THE

Supreme Court of the United

Leatua Benita Sims, by her next friend and Mother,

Linda Gail Sims,

Petitioner,

—_—V =

WrmuuM Wan and Max Launper,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Micuar.t E. Ge_TNer

Srantey K. Laver

Ciype L. Eis

American Civil Liberties

Union of Ohio

203 East Broad Street

Columbus, Ohio 43215

Meuvin L. WuLr

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Attorneys for Petitioner

ee —— —

————

TABLE OF CONTENTS

Page

eee Gee We aeeeOcicsccbeccsoceoces§ SS

Opinions Below........ ecccee eccccccece 1

Questions Presented........cccccceces 2

Constitutional Provisions and

Statutes Involved... eff ff @ @ *eweees#e# 3

Statement of the Case@.......ccccccces 4

PACES. ccc cccccccccccccccccccecccccces 5

Reasons for Granting the Writ........ 8

1. Cruel and Unusual Punishment, 9

2. Deprivation of Liberty With-

out Due Process of Law....... 12

Do GROGRES BEER. cccccesccosee = 43

Ged c cet edsccecvcssecesosccesnse MB

Appendix

Opinion of United States Court

of Appeals for the Sixth Circuit Al

Opinion cf the United States

District Court for The Southern

District of Ohio, Western Divi- |

BIGMecccccccccccccccscccccccccces AT

ii

Table of Authorities

Cases

Baker v. Owen, 395 F. Supp

294 (M.D.N.C. 1975), (3

judge court), aff'd 423 U.S.

907 (1975) ...ceeee Terrer ey ll,

Bramlet v. Wilson, 495 F.2d

Tae Gee CER. BPO) océecse °

Dixon v. Youngstown Bd. of Ed.,

C-73-11884 (N.D.0. 7/23/75)

(unreported) ........... eee

Furman v. Georgia, 408 U.S. 338

(1972) eee eneeneneenenenene “ee eee

Gonyaw v. Gray, 361 F.Supp

366 (D. Vt. 1973).........10, ll,

Goss v. Lopez, 419 U.S. 565

CASTS) coccccccceccscese eee

Glaser v. Marietta, 35l F.

Supp. 555 (W.D. Pa. 1972). ll,

Gregg v. Georgia, U.S.

2) err e*eneweeee?# *eeeneee#ee

Ingraham v. Wright, 44 U.S.L.W.

3670. “ee ee “ene eeeeee ~rTrTTTT©)hO Cl” 12,

Jackson v. Bishop, 404 F.2d

Sve (GSR CaS. 19GB) .cccce °

Page

12,

14,

13,

12,

12,

13,

14

ll

15

14

13

14

10

14

ll

iii

Mahanes v. Hall (E.D.Va. 1974)

(unreported opinion)...... 8,

Meyer v. Nebraska, 262 U.S.

390 bo a ee

Nelson v. Heyne, 491, F.2d

352 (7th Cir. 1974) ...cecce

Pierce v. Society of Sisters,

268 (U.S. 510 (1925)......

Prince v. Massachusetts, 321

U.S. 158 |

Sims v. Board of Education,

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

1971)

Ware v. Estes, 328 F.Supp

657 (N.D. Tex. 1971)......

Wheeler v. Glass, 473 F.2d

Be, f° -ae |) . > ) ee

Wisconsin v. Yoder, 406 U.S.

Bee GEER oneecoeeses esece

12,

ll,

ll,

Constitutional Provisions and Statutes

United States Constitution

Amendment VIII........-.

RMORERORS BEV. ccccccecoce

14

13

ll

13

13

13

14

ll

13

Ww

a

iv

Ohio Revised Code §3319.41.. 3, 4, 5, 8, 9

28 U.S.C. §1343. “eee ee *“eeeee

28 U.S.C. §1983.... “eee ee **e

42 U.8.C. GAGS (3) .ccccecces

Other Authority

Reitman, Follman & Ladd,

Corporal Punishment in the

Public School: The Use of

Force in Controlling Student

Behavior (1972)..... eccccce

ll

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1976

No.

LEATHA BENITA SIMS,

by her next friend and

Mother, Linda Gail Sims,

Petitioner,

Ve

WILLIAM WALN and ©

MAX LAUNDER,

Respondents.

PETITITON FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner Leatha Benita Sims, suing

by her mother and next friend Linda Gail

Sims, respectfully requests that a writ of

certiorari be issued to review of judgment

of the United States Court of Appeals for

the Sixth Circuit affirming the judgment of

the United States District Court for the

Southern District of Ohio, Western Division,

dismissing her claim after trial to the

Court.

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Sixth Circuit is offici-

ally reported at 536 F.2nd 686. A copy of

that opinion is appended at Al. The opinion

of the United States District Court for the

Southern District of Ohio, Western Division,

is officially reported at 388 F.Supp. 543.

A copy of that opinion is appended at A7.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals

sought to be reviewed was entered on June

15, 1976. No petition for rehearing was

filed.

This Court has jurisdiction to review

the judgment of the Court of Appeals by

writ of certiorari pursuant to title 28,

United States Code, Section 1254(1).

QUESTIONS PRESENTED

$ Whether a state statute which author-

izes public school officials to administer

“reasonable corporal punishment" to school

children violates the Eighth Amendment to

the United States Constitution, because the

imposition of corporal punishment to school’

children by public school officials as a

form of punishment is per se cruel and

unusual punishment, in violation of the

Eighth Amendment to the United States

Constitution.

II. Assuming corporal punishment of school

children by public school officials is

consistent with the United States Consti-

tution, whether its imposition without fair

notice that it will be imposed for the

conduct in question, without advance notice

to the child and without any opportunity for

the child to contest the decision to impose

corporal punishment deprives the child of

liberty without due process of law in

violation of the Fourteenth Amendment to

the United States Constitution.

III. Whether the imposition of corporal

punishment on a school child violates the

child's parent's right, protected by the

Fourteenth Amendment to the United States

Constitution, to control the upbringing of

the child when it is imposed without

regard to the parent's instructions and

when the parent in question has instructed

school authorities that she wants to be

consulted and to decide whether to permit

corporal punishment of the child.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

United States Constitution, Amendment

VIII:

"Excessive Bail shall not be

required, nor excessive fines

imposed, nor cruel and unusual

punishments inflicted"

United States Constitution, Amendment

XIV:

Ohio

pertinent

“...nor shall any state deprive

any person of life, liberty, or

property, without due process

of law..."

Revised Code, Section 3319.41 (in

part):

"A person employed or engaged as

a teacher, principal, or admini-

strator in a school, whether public

or private, may inflict or cause

to be inflicted, reasonable corporal

punishment upon a pupil attending

such school whenever such punish-

ment is reasonably necessary in

order to preserve discipline while

such pupil is subject to school

authority."

STATEMENT OF THE CASE

This action was commenced under title 42

United States Code, Sections 1983 and 1985(3)

The district court had jurisdiction pursuant

to title 28, United States Code, Section 1343.

Petitioner Leatha Benita Sims ("Leatha"),

a school child, charged defendants, a school

principal and vice principal, with having

injured her in an effort to inflict corporal

punishment on her for a claimed infraction of

school rules. Leatha claimed that the defend-

ants' conduct violated her right to be free

from serious physical incursions by government

officials, protected by the Eighth and Fourt-

eenth Amendments to the United States Constitu-

tion and that the statute which authorized

their conduct, Section 3319.41 of the Ohio

Revised Code, was unconstitutional on its face

and as applied under the Eighth and Fourteenth

Amendments to the United States Constitution.

In addition, the complaint charged that corpor-

al punishment had been imposed in a discrimina-

tory manner, in violation of title 42, United

States Code, Section 1985(3). Petitioner

sought damages and a declaratory judgment and,

only as to the latter claim, injunctive relief.

The case was tried to the court, and Judge

Rubin filed his opinion and judgment finding

against petitioner on December 16, 1974, con-

cluding that the claim was "insubstantial" and

dismissing the claim after the trial for lack

of jurisdiction. On appeal the Court of

Appeals disagreed with the conclusion of

insubstantiality, but aftirmed on the merits.

FACTS

Leatha was enrolled in Schaeffer Junior

High School, part of the public school system

for Springfield, Ohio. On May 14, 1973, when

the incident leading to suit occurred, she

was thirteen years old. Respondent William

Waln ("Waln") was principal of Schaeffer

Junior High School, and Respondent Max Launder

("Launder") was assistant principal.

Acting under authority of Section 3319.41

of the Ohio Revised Code, Waln and Launder

implemented a policy of inflicting corporal

punishment on students for breach of disci-

pline. Although corporal punishment was one

of several modes of discipline available,

neither respondents nor the Springfield

School Board 1/ established objective criteria

for when it would be used, and no formal

procedural requirements were established as

a pre-requisite to its use. Waln testified

that he followed a policy of “common sense," 2/

administering corporal punishment without

1/ The Springfield School System policy

manual authorized corporal punishment, which

it defined as “any use of physical force by a

principal or teacher on a pupil," but

contained no criteria for its use. Petitioner

defined corporal punishment at trial as "the

infliction of pain as a penalty for engaging

in disapproved conduct or to coerce compliance

with rules." Plaintiff's Pre-Trial Memo-

randum, p.2; Pltf's Exh. No. 2.

2/ Deposition of August 6, 1974, p. 22,

introduced as exhibit at trial.

a

regard to parental disapproval. Corporal

punishment - or "cracks" - was to consist

of two or three blows to the buttocks with

a flat wooden paddle thrity inches long,

three eighths of an inch thick and one and

three quarters inches wide, administered by

either Waln or Launder in the presence of

the other.

Leatha was assigned to serve a deten-

tion on May 14, 1973 for a prior infraction

of school rules. 3/ She went to Waln's

office and requested to be excused from

detention on that date, because she had to

babysit for her younger sister. Waln

demanded proof and, since Leatha had no note,

instructed her to call her mother for veri

fication. There was no answer when Leatha

dialed the telephone number where she thought

she could reach her mother. At that point,

Waln told her to go into his office to get

two “cracks." Although the trial judge

credited Waln's testimony that he offered

Leatha a choice between detention and cracks,

Leatha testified that she was not told she

had a choice to avoid detention. Waln told

Leatha to put down her books and remove her

coat, calling in Launder to observe. Leatha

continued to refuse to take her coat off or

bend down to expose her buttocks and became

very upset. Waln became agitated and tried

3/ Leatha testified the detention was for

being tardy on an earlier date, while Waln

testified it was either for cutting classes

or chewing gum.

to force Leatha to remove her coat and bend

against his desk. Launder, who was stand-

ing and blocking the door, described the

scene as a scuffle and testified that

Leatha fell down in her effort to escape

from Waln. Leatha testified that the fall

occurred when Waln pushed her onto his desk

in an effort to get her into paddling pos-

ition and she fell off. The trial judge

found that "contact was made between

plaintiff and defendant Waln resulting in

plaintiff slipping to the floor and sus-

taining an injury to her knee."

At that point, Launder intervened and

persuaded Waln to let Leatha go and take

“other routes." She was then permitted to

leave the office and was suspended by

letter from Waln to her mother.

Leatha's mother, Mrs. Linda Sims,

testified that Leatha came home "very

excited, upset, crying, and just ina

terrible state, really." She testified

that she had, on one earlier occasion,

authorized Waln to give Leatha “cracks”

but that she, herself, was present on the

occasion. Otherwise, she testified, she

told Waln that “I would like to be notified

first, you know, and if it comes to that,

I told him I didn't want my children

paddled." (tr.14).

At trial, in addition to offering

testimony concerning the event, petitioner

offered extensive expert evidence on the

effects and efficacy of corporal punish-

ment. 4/ This evidence came through the

testimony of Dr. Arthur Thomas, and Dr. Virgil

Blancke, experts in the field of educational

administration, several supportive exhibits

and testimony of psychologists offered in an

earlier case, Mahanes vs. Hall (E.D.Va. 1974)

(unreported opinion), which the trial judge

accepted as a plaintiff's exhibit. The sub-

stance of this testimony, which was detailed

and thoroughly documented, was that corporal

punishment, administered as a means of main-

taining public school discipline was (1) of

no value as a long-term means of modifying

undesirable behavior or habits, (2) ineffective

as a method of managing immediate school

discipline problems in comparison to less

harmful means and (3) significantly harmful

to school children because of the negative

attitude it creates toward the school and

because of the physical pain and, occasionally

injury, it causes.

REASONS FOR GRANTING THE WRIT

The Court of Appeals concluded that

"the plaintiff was not subjected to corporal

punishment during the incident in question,"

AS-A6. There was, of course no disagreement

with the district judge's finding that "No

‘cracks' were administered by Defendant

Wain." A9. It was also undisputed that waln

tried forcibly to impose "cracks" as authorized

by §3319.41., and that Leatha was injured

when she fell, while grappling with wWaln

in her efforts to avoid Waln's paddle,

4/ Respondent offered no evidence.

in

Waln's use of force 5/ was privileged if,

but only if, §3319.41 was valid. If it is

unconstitutional, then his miscarried

effort to use force on Leatha was unprivil-

eged and entitled her to damages under 42

U.S.C. §1983. Thus, despite the Court of

Appeals' statement, the constitutional

legitimacy of “reasonable corporal punish-

ment" is very much in issue in this case.

1. CRUEL AND UNUSUAL PUNISHMENT.

The theory of petitioner's case was

that corporal punishment was cruel and

unusual in the constitutional sense if it

was proved, as a matter of fact, to be (1)

useless as a means of modification of harm-

ful behavior, (2) significantly harmful and

(3) capable of being replaced by equally

effective and less drastic means. The fore-

going theory of cruel and unusual punishment

was derived primarily from this court's

opinions in Furman vs. Georgia, 406 U.S.

338 (1972). Particularly pertinent was

Mr. Justice White's explanation for his vote

in Furman:

",...But the penalty has not been

considered cruel and unusual punish-

ment in the constitutional sense

because it was thought to be justi-

ied by the social ends it was

deemed to serve. At the moment

that it ceases realistically to

further these purposes, however,

5/ Throughout this case, petitioner made

clear her position that the attack on

§3319.41 did not involve any claim that the

use of force was impermissible as a method

of self-defense or defense of others.

-10-

the emerging question is whether

its imposition would then be the

pointless and needless extinction

of life with only marginal contri-

butions to any discernible social

or public purposes. A penalty with

such negligible returns to the State

would be potently excessive and

cruel and unusual punishment

violative of the Eighth Amendment. "

408 U.S. at 312.

We do not believe the Court's recent

opinions in Gregg vs. Georgia, U.S.

, (1976) et al. change the foregoing

test.

If, as petitioner believes, the issues

of whether corporal punishment is cruel

and unusual in the constitutional sense is

one of fact, it was proved, without expert

opinion to the contrary, in this case.

As the Court knows, the writ of

certiorari was granted in Ingraham vs.

Wright, 44 U.S.L.W. 3670 to review the en

banc decision of the United States Court

of Appeals for the Fifth Circuit, 525 F.2nd

909 (1976) which raises the issue of

whether "severe" corporal punishment

violates the Eighth Amendment. This case,

of course, raises the broader issue of

whether corporal punishment ordinarily

characterized as "reasonable" is likewise

cruel and unusual.

There is of course, substantial

authority opposed to petitioner's position.

See, e.g., Gonyaw vs. Gray, 361 F.Supp. 366

elie

(D.Vt. 1973); Glaser vs. Marietta, 351

F.Supp. 555 (W.D. Pa. 1972); Sims vs.

Bd. of Ed., 329 F.Supp. 678 (D.N.M. 1971);

Ware vs. Estes, 328 F.Supp. 657 (N.D. Tex.

1971). See also Baker vs. Owen, 395 F.

Supp. 294 (M.D.N.C. 1975) (3 judge court),

aff'd 423 U.S. 907 (1975).

The primary authority in support of

petitioner's position stems from the con-

clusion that corporal punishment is cruel

and unusual in highly analogous circum-

stances. See, e.g., Nelson vs. Heyne, 491

F.2nd 352 (7th Cir. 1974) (reform school

boys); Wheeler vs. Glass, 473 F.2nd 983

(7th Cir. 1973) (Mental Institution) ;

Jackson vs. Bishop, 404 F.2nd 571 (8th Cir.

1968) (Adult, male prisoners). cf.

Bramlet vs. Wilson, 495 F.2nd 714 (8th Cir.

1974). To permit government authorities to

do to school children what they are forbidden

to do to prisoners is plainly illogical.

Moreover, while use of corporal punishment

is widespread in schools, see Reitman,

Follman and Ladd, Corporal Punishment in

the Public School: The Use of Force in

Controlling Student Behavior (1972), it

is unusual in the sense that its use by

the State in all other contexts has been

banned in our society.

The Court's affirmance of the decision

in Baker vs. Owen, supra, is not dispositive

of this issue, because that case presented

no evidence directed at the cruel and

unusual punishment issue.

o12-

Be DEPRIVATION OF LIBERTY

WITHOUT DUE PROCESS

OF LAW

Corporal punishment, if permissible,

must be preceded by at least that level of

due process of law which the Court imposed

on ten day suspensions of school children.

Goss vs. Lopez, 419 U.S. 565 (1975). Here,

on the contrary, there was neither advance

notice of what conduct would bring corporal

punishment nor actual notice of a charge

nor an opportunity to defend. Given the

record in this case, the evidence of psych-

Ological harm together with the actual

physical pain involved should satisfy even

the concept of “grievous loss" urged as a

prerequisite to the due process require-

ment by the dissenters in Goss vs. Lopez,

419 U.S. at 588 (Powell, J., dissenting).

The issue is before the Court as to

“severe: corporal punishment in Ingraham

vs. Wright, supra, and, we believe, the

record in this case presents the issue as

to "reasonable" corporal punishment despite

the Court of Appeals' refusal to reach it.

It was, Of course, raised and argued below.

The lower courts appear to be split on

this issue. In support of petitioner's

position are Baker vs. Owen, 395 F.Supp.

294 (M.D.N.C. 1975) (the defendants' failure

to appeal the three-judge court's ruling

against them forecloses the argument that

this Court's affirmance reaches the due

process issue); Glaser vs. Marietta, 35l

F.Supp. 555 (W.D. Pa. 1972) (requiring due

process of law but finding it met);

Mahanes vs. Hall, (E.D. Va. 1974) (unreported

=

opinion). To the contrary are Ingraham vs.

Wright, supra; Gonyaw vs. Gray, 361 F.Supp.

366 (D.ct. 1973) and Sims vs. Bd. of Ed.,

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

PARENTAL RIGHTS

The Court has consistently held that

parents have a fundamental right to bring

up their offsprings according to their own

precepts and convictions. Prince vs.

Massachusetts, 321 U.S. 158 (1974); Pierce

vs. Society of Sisters, 268 U.S. 510 (1925);

Meyer vs. Nebraska, 262 U.S. 390 (1923).

The more recent decision in Wisconsin vs.

Yoder, 406 U.S. 205 (1972) (upholding the

right to Amish parents to keep their child-

ren out of school) continued the Court's

policy that, in important matters of

conscience, the State's interest must give

way to that of the parents.

This case does not present the claim

that the child of a parent opposed to

corporal punishment can disrupt the school

with impunity. The rights of other school

children were not involved in this case;

in any case in which they are, they can

readily be protected by penalties up to

and includiny suspension or expulsion under

Goss vs. Lopez, supra.

Although the Court of Appeals in this

case relied on part on the fact that Linda

Sims had, once before, permitted Waln to

paddle Leatha, the record establishes her

unambiguous assertion of the right to

decide whether Leatha should be paddled.

She was present at the paddling three months

ee,

-14-

earlier, concluding it was appropriate and

authorizing it. Mrs. Sims' testimony at

trial was that she told Waln that she’

wanted to be notified or else did not want

her children paddled. Moreover, Waln's

testimony established that the school did

not believe itself bound by parental state-

ment of desires. See Deposition of August

6, 1974, p. 28, introduced at trial. ("I

might honor that request [not to use

corporal punishment] and I might not").

Unlike the first two issues presented

in this case, the claim that "liberty,"

within the meaning of the due process clause

of the Fourteenth Amendment, guarantees the

parent the ultimate right to control the

form of discipline imposed on the child is

not among the questions presented to the

Court in Ingraham vs. Wright, supra. We do not

believe the Court's affirmance of Baker vs.

Owen, 395 F.Supp. 294 (M.D.N.C. 1975) to

be controlling on this issue, since there

the lower court found corporal punishment

was used "to restrain or correct pupils and

maintain order."

In substance, petitioner's position

has been adopted by Glaser vs. Marietta,

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

Mahanes vs. Hall (E.D. Va. 1972) (unreported

opinion) and rejected by Gonyaw vs. Gray,

361 F.Supp. 366 (D.Vt. 1973); Ware vs.

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

aff'd without opinion, 458 F.2nd 1360 (5th

Cir. 1974); Baker vs. Owen, supra and, in

addition to the court below, by a three-

judge court of the Sixth Circuit in an

unreported opinion. Dixon vs. Youngstown

ou 6 ee

-15-

Bd. of Ed. C-73-11884 (N.D.0O. 7/23/75)

(unreported).

CONCLUS ION

This case presents an appropriate

record on which to resolve the significant

constitutional issues raised by the use of

corporal punishment in the public schools

and, for that reason, the writ of

certiorari should be granted.

Respectfully submitted,

Michael E. Geltner

Stanley K. Laughlin

Clyde L. Ellis

American Civil Liberties

Union of Ohio

203 East Broad Street

Columbus, Ohio 43215

Melvin L. Wulf

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Attorneys for Petitioner

AFFIDAVIT OF SERVICE

The undersigned, being duly sworn,

swears that three copies of the attached

petition for a writ of certiorari were

served on counsel for respondents by

mailing, postpaid, on September °

1976 addressed to:

William H. Thornburg, Esq.

1012 3rd National Bank Building

Dayton, Ohio 45402

Alfred J. Weisbrod, Esq.

107 W. Main Street

Troy, Ohio 45373

William Brown, Esq.

Attorney General of Ohio

State Office Tower

30 E. Broad Street

Columbus, Ohio 43215

Sworn to before me

this 13th day of

September, 1976

Notary Public

APPENDIX

OPINION OF UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

No. 75-1383

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Leatna Benita Sims, by her next

friend and mother, Linpa Gait! Apprat from. the

Sims, United States District

Plaintiff-Appellant,' Court for the South-

v. ern District of Ohio,

WILLIAM WALN and Max LAuNbEn, Western Division.

Defendants-Appellees.

Decided and Filed June 15, 1976.

Before: Cevesnezze, Livery and Encex, Circuit Judges.

Pex Cumam. Plaintiff Leatha Benita Sims is a 16-year-old

Negro, who in May 1973 was a student at Schaeffer Junior

High School in Springfield, Ohio. Defendants William Waln

and Max Launder were, respectively, principal and assistant

principal of the school at that time.

This action arose out of an incident which occurred on

May 14, 1973. On that date Miss Sims was ordered by her

teacher to stay after school as punishment for a violation of

school rules.'. This form of discipline is known in the school

as detention. Immediately after school Miss Sims went to the

principal's office and requested that she not be required to re-

main after school on that day, stating that she had to babysit.

She was unable, however, to reach her mother by telephone

to verify her story.

'Waln testified that Miss Sims was detained either for cutting

classes or for chewing gum. :

‘BEST COPY AVAILABLE

A2

2 Leatha Benita Sims v. Waln and Launder No. 75-1383

Officials at Schaeffer Junior High also employ a type of

punishment known as “corporal punishment”, whereby a stu-

dent is punished by imposition of blows on the buttock with a

paddle, known as “cracks”. The maximum number of cracks

given a student under school policy is three. Ohio Rev. Code

§ 3319.41? authorizes the principal of the school to impose

such punishment.

Defendant Waln offered Miss Sims two cracks as an alterna-

tive punishment to detention. Miss Sims refused to accept the

cracks and refused to remain after school. She fled from Waln’s

office and contact was made between her and Waln as he

attempted to grab her. Miss Sims slipped to the floor and

sustained a slight injury to her knee. No cracks were actually

administered by defendants upon plaintiff on that day.

Plaintiff filed this action in the district court under 42 U.S.C.

$$ 1983 and 1985, premising federal jurisdiction on 28 U.S.C.

§ 1343. She sought a declaratory judgment that O.R.C.

§ 3319.41 is unconstitutional on its face and as applied to her.

She sought punitive and compensatory damages from de-

fendants for injuries she allegedly suffered on May 14, 1973,

and an injunction enjoining defendants from discriminating

against Negro students in the infliction of corporal punishment.

Liberally construed, the complaint could be read as alleging

basically four claims. The first three claims related to the

constitutionality of O.R.C. § 3319.41. First, plaintiff claimed

that the statute is unconstitutional because it authorizes cor-

poral punishment, a per se violation of the Eighth Amendment

prohibition against Crue] and Unusual Punishment. Second, she

argued the statute unconstitutionally abridges a parent's First

and Fourteenth Amendment right to bring up his child in the

manner he sees fit by authorizing school officials to impose

2Ohio Revised Code § 3319.41, in effect on May 14, 1973, when

the incident in question took place, provided in relevant part:

“A person employed or engaged as a teacher, principal, or

administratur in a school, whether public or private, may in-

flict or caus? to be inflicted, reasenable corpora! punishment

upon a pup’! attending such school whenever such punishment

is reasonal)ly necessary in order to preserve discipline while

such pupil is subject to schoo! authority.

A3

No. 75-1383 Leatha Benita Sims v. Waln and Launder 3

corporal punishment even though the parent might not consent.

Third, she claimed the statute is unconstitutional on its face

and as applied to her because it fails to provide for any Due

Process Clause procedural guarantees before corporal punish-

ment is imposed. The final claim was that corporal punishment

was imposed at Schaeffer Junior High discriminatorily against

her and other Negro students at the school in violation of the

Equal Protection Clause.

The district judge held a full trial, hearing witnesses and

taking testimony. He thereafter issued a memorandum

opinion, 388 F. Supp. 543 ($.D. Ohio, 1974), in which he

concluded that plaintiff's cause of action stated no substantial

federal question under § 1983. Judgment was entered dis-

missing the action on the merits. While we disagree with the

district court's conclusion that the plaintiffs federal claims

are insubstantial, we nevertheless affirm its judgment dis-

missing the complaint on the merits and granting judgment for

defendants,

The issue of “constitutional insubstantiality” was recently

reviewed by the Supreme Court in the context of a § 1983

action brought under § 1343(3), Hagans v. Lavine, 415 US.

528 (1974). There the court noted that in its previous in-

terpretations of that doctrine it had found claims to be insub-

stantial only where they were “obviously without merit’,

“wholly insubstantial”, or where “previous decisions inescap-

ably render the claims frivolous.” Hagans v. Lavine, 415 U.S.

at 537, 538 (quoting prior cases). We are not aware of any

Supreme Court decision specifically dealing with the type of

claim presented here.? Further, Dixon v. Youngstown City

3In Baker v. Owen, 395 F. Supp. 294 (M.D. N.C. 1975) (three

judge court) aff'd mem., 423 U.S. 907 (1975), the Supreme Court sum-

marily aflirmed a district court judgment that a North Carolina

statute authorizing corporal punishment was not unconstitutional on

its face. Plaintiff ivere had raised many of the saine issues pre-

sented in the instant case. The Baker case was, of course, decided

subsequent to the district court decision in this case. Goss v. Lopez,

419 U.S. 565 (1975) dealt with another aspect of school Seen,

suspension from sc. .0l. However, many of the claims presente

here were in no way at issue there,

A4

4 Leatha Benita Sims v. Waln and Launder No. 75-1383

Board of Education, C-73-1188Y, (N.D. Ohio, July 23, 1975),

an unreported decision in which a three judge district court

upheld the constitutionality of the same statute, had not yet

been handed down. These circumstances lead us to conclude

that the federal claims presented in plaintiffs complaint, in the

constitutional sense, were not so frivolous or insubstantial as

to oust the district court of its jurisdiction to hear the case.

Plaintifl’s first claim is that corporal punishment imposed by

school officials is a per se violation of the Eighth Amendment

prohibition against Crucl and Unusual Punishment, made ap-

plicable to the states through the Fourteenth Amendment.

tier federal courts which have considered this claim have

uniforniy rejected such a contention. Ingraham v. Wright,

525 F. 2d 909 (5th Cir. 1976) (en banc) cert. granted, 44

U.S.L.W. 3670 (May 25, 1976), Dixon v. Youngstown City

Board of Education, supra, Ware vy. Estes, 328 ¥. Supp

(N.D. Tex.) affd. 458 F. 2d 1560 (5th Cir. 1972). Claser v.

Marietta, 351 I. Supp. 555 (W.D. Pa. 1972), Sims v. Board

of Education, 329 F. Supp. 678 (D.N.M. 1971). Plaintiff can-

not contend that the policy followed at Schaefler of imposing no

more than three cracks is “excessive” in the constitutional sense,

cf. O'Neil v. Vermont, 144 U.S. 323, 339-340 (1892) (Field, J.,

dissenting), as there is no evidence in the record to support

such a contention. Plaintiff's attack of the statute on Eighth

Amendment grounds must therefore fail.

Plaintiff attacks O.R.C. § 3319.41 on two Fourteenth Amend-

ment grounds, Virst, she claims the statute interferes with a

parent's constitutional right to decide whether his child is to

be subject to corporal punishment. The Supreme Court has

long recognized the constitutional stature of parental rights

to bring up their children. Meyer v. Nebraska, 262 U.S. 390

(1923), Pierce v. Socicty of Sisters, 268 U.S. 510 (1925). These

parental rights ave not absolute, however, Prince v. Massachu-

setts, 321 U.S. 158, !66 (1943), and the use of corporal punish-

ment is not forbidden simply because it interferes in some

instances with the tight of parental control. Baker v. Owen,

_——?

AS

No. 75-1383 Leatha Benita Sims v. Waln and Launder 5

395 F. Supp. 294 (M.D. N.C. 1975) (three judge court) aff'd.

mem. 423 U.S. 907 (1975). Dixon v. Youngstown Board of

Education, supra, Gonyaw v. Gray, 361 F. Supp. 366 (D. Vt.

1973), Ware v. Estcs, supra. Mere, moreover, it appears from

the record that on a previous occasion plaintiff's mother had

consented to the imposition of corporal punishment upon plain-

tiff. We, therefore, find plaintiffs contention in this regard to

be without merit.

Plaintiff's second Fourteenth Amendment claim is that the

Ohio statute is unconstitutional because it provides no pro-

cedural safeguards which teachers and administrators must

follow before imposing corporal punishment. We note that

while some courts have held that a student has a liberty interest

in freedom from corporal punishment protected by the Four-

teenth Amendment procedural guarantees, Baker v. Owen,

supra, other courts have refused to find such a constitutionally

protected interest. Ingraham v. Wright, supra, Conyaw v.

Gray, supra. Cf. Goss v. Lopez, 419 U.S, 565 (1975).4

We need not decide whether plaintiff had a constitutional

right to be free from corporal punishment entitled to the

procedural guarantees of the Due Process Clause. The failure

of the Ohio legislature to explicitly provide such procedural

safeguards does not render the statute unconstitutional on its

face. Baker v. Owen, supra. The record in this case clearly

reflects that the plaintiff was not subjected to corporal punish-

4In Goss v. Lopez, supra, the United States Supreme Court held

that high school students who under Ohio law could be suspended

from school for up to ten days for misconduct, had liberty and

property interests in remaining in school entitled to the protection

of the Due Process Clause. Thus the court held that students could

not be suspended without a hearing which comported with minimal

due process guarantees. Four members of the court dissented, arguing

that the infringement of the students’ right to education was too

slight and insubsiantial to justify imposition of a constitutional rule.

In view of the siiarp division of opinion of the various justices on

this matter, we «xpress no opinion as to whether Goss should be

extended to require that duc process standards be met before corporal

punishinent is i:.posed. We note only that corporal punishment as

imposed in Schau ‘Ter Junior High is a less severe form of discipline

than suspension f.om school.

A6

6 Leatha Benita Sims v. Waln and Launder No. 75-1383

ment during the incident in question. If she had a right

entitled to the protection of Due Process Clause guarantees,

such a right was not infringed here.

Appellant's final contention is that defendants engaged in an

intentional practice of discriminatory use of corporal punish-

ment against Negro students in Schaeffer Junior High solely

on the basis of their race. The only evidence introduced by

plaintiff to support her claim was statistical evidence for one

year showing that a greater percentage of Negro and other

minority students were subjected to corporal punishment dur-

ing that year than were white students. In terms of absolute

numbers, far more white students actually received corporal

punishment, because whites constituted about 90% of the school

population,

There was no showing that the discipline imposed here was

more severe than that imposed upon white students for the

same misconduct, or that the principal's actions were in any

way motivated by bias. Under such circumstances the district

court’s finding that the punishment was not discriminatorily im-

posed is not clearly erroneous.

The judgment of the district court is affirmed,

eee

A7

OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO,

WESTERN DIVISION

LEATHA BENITA SIMS,

by her next friend and

Mother, Linda Gail Sims,

Petitioner,

vs.

WILLIAM WALN and

MAX LAUN DER,

Respondents,

Civ. No. 4526

December 16, 1974

FINDINGS OF FACT, OPINION AND

CONCLUSIONS OF LAW

RUBIN, District Judge.

This matter is before the Court follow-

ing trial, presentation of evidence and

testimony and a post trial memorandum.

Plaintiff seeks damages, both compensatory

and punitive, an injunction against

defendants from discriminating against

plaintiff or other black persons in the

infliction of corporal punishment, and a

declaratory judgment holding §3319.41 Ohio

Rev. Code to be unconstitutional.

a

A8

In accordance with Rule 52 of the

Federal Rules of Civil Procedure, the Court

does herewith submit its Findings of Fact and

Conclusions of Law.

I.

FINDINGS OF FACT

l.

Plaintiff, Leatha Benita Sims, is a

minor age 15. In May of 1973 she was a

student at Schaeffer Junior High School,

Springfield, Ohio.

2.

Among the disciplinary punishments

used at Schaeffer Junior High School are

"detention" and “corporal punishment." When

punished by detention a student remains after

school for a period of forty-five minutes.

Corporal punishment is administered by a

teacher or by the principal by use of a

paddle, supplied by the Springfield Board of

Education, on the buttocks of the student

being disciplined. The maximum number of

blows with the paddle, referred to at

Schaeffer Junior High School as “cracks,"

never exceeds three. Corporal punishment

may be administered by the principal of a

school in accordance with §3319.41, Ohio

Rev. Code. 1/

On May 14, 1973, plaintiff Sims had

been punished by imposition of a detention.

She appeared at the office of the principal

seeking to be relieved from detention and

So ee

A9

asserting that she was required to babysit.

No note or previous information had been

supplied to the school authorities and

plaintiff Sims was required to make a tele-

phone call to verify her obligation. She

was unable to reach her mother for verifi-

cation and was thereupon offered a choice by

defendant Waln of detention or “two cracks."

Plaintiff Sims declined to do either and fled

from the principal's office. Contact was

made between plaintiff and defendant Waln

resulting in plaintiff slipping to the floor

and sustaining an injury to her knee. No

“cracks" were administered by defendant Waln.

_

~™

4.

Defendant Max Launder, Assistant

Principal, had been requested by defendant

Waln to serve as a witness. Other than observe

the incident, defendant Launder did not

participate. No evidence has been presented

that he touched the person of the plaintiff

or that he gave her any instructions.

D

A record of disciplinary action involv-

ing students at Schaeffer Junior High School

is maintained in the office of the principal.

During the school year 1972-73, plaintiff

Sims was disciplined on forty occasions. On

April 12, 1973, two "cracks" were inflicted

after consultation with plaintiff's mother.

During the School year 1973-74, plaintiff

was disciplined thirty-six times without the

administration of any "cracks". No conclusive

probative evidence has been presented

indicating that corporal punishment is

administered in a discriminatory fashion,

either by reason of sex or by reason of race.

Al0

It.

OPINION

[1] This Court is met by a threshold ques-

tion raised by the United States Court of

Appeals for the Sixth Circuit in the case of

R. Brooks Bates v. Leslie Dause and Robert

Garner, 502 F.2d 865 (1974). In the Dause

case the Court considered a §1983 claim as it

related to demotion and transfer of principals

of two elementary schools. Plaintiffs had

asserted a deprivation of rights to support an

action under §1983 and pendant jurisdiction

under the Kentucky Teachers Tenure Act. Dause

teaches before a Federal Court can grant relief

to a plaintiff, it must first determine that

the federal claims have substance sufficient

to confer subject matter jurisdiction on the

court. United Mine Workers of America v.

Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.

2d 218 (1966); Price v. United Mine Workers

of America 336 F.2d 771 (6th Cir. 1964);

Patrum v. Greensburg, 419 F.2d 1300 (6th Cir.

1969), cert. den., 397 U.S. 990, 90 S.Ct.

1125, 25 L.Ed.2d 398 (1970).

The question of whether a claim has

sufficient substance, or, in other words,

whether it presents a "substantial question"

that will confer subject matter jurisdiction

on a federal court was recently discussed at

length by the Supreme Court in Hagans v.

Lavine, 415 U.S. 528, 94 S.Ct. 1372, 1378,

39 L.Ed.2d 577 (1973). The Court said, per

the majority opinion of Mr. Justice White 2/

that:

The principle applied by the Court of

Appeals -- that a “substantial"

question was necessary to support

jurisdiction -- was unexceptionable

under prior cases. Over the years:

ERAT = mene Geet ESS ET Saw SS

All

this Court has repeatedly held that

the federal courts are without power

to entertain claims otherwise within

their jurisdiction if they are "so

attenuated and unsubstantial as to

be absolutely devoid of merit,"

Newburyport Water Co. v. Newburyport,

193 U.S. 561, 579 [24 S.Ct. 553, 557,

48 L.Ed. 795] (1904); "wholly

insubstantial," Bailey v. Patterson,

369 U.S. 31, 33 [82 S.Ct. 549, 550-

551, 7 L.Ed. 2d 512] (1962); "“ob-

viously frivolous," Hannis Distilling

Co. v. Baltimore, 216 U.S. 285, 288

[30 S.Ct. 326, 327, 54 L.Ed. 482]

(1910); “plainly unsubstantial",

Levering & Garrigues Co. v. Morrin,

289 U.S. 103, 105 [53 S.Ct. 549, 550,

77 L.Ed. 1062] (1933); or “no longer

open to discussion," McGilvra v. Ross,

215 U.S. 70, 80 [30 S.Ct. 27, 31, 54

L. Ed. 95] (1909). One of the princi-

pal decisions on the subject, Ex Parte

Poresky, 290 U.S. 30, 31-32 [54 S.Ct.

3, 4-5, 78 L.Ed. 152] (1933), held,

first that "[iJn the absence of di-

versity of citizenship, it is essential

to jurisdiction that a substantial

federal question should be presented";

second, that a three-judge court was

not necessary to pass upon this initial

question of jurisdiction; and third,

that "[t]he question may be plainly un-

substantial, either because it is ‘'ob-

viously without merit' or because ‘its

unsoundness so clearly results from

the previous decisions of this court as

to foreclose the subject and leave no

room for the inference that the question

Al2

sought to be raised can be the subject

of controversy’. Levering & Garrigues

Co. v. Morrin, supra; Ilannis Distilling

Co. v. Baltimore, 216 U.S. 285, 288

[30 S.Ct. 326, 54 L.Ed. 482]; McGilvra

v. Ross, 215 U.S. 70, 80 [30 S.Ct. 27,

54 L.Ed. 95]."

Only recently this Court again reviewed

this general question where it arose in the

context of convening a three-judge court under

28 U.S.C. §2281;

"*Constitutional insubstantiality' for

this purpose has been equated with such

concepts as ‘essentially fictitious, '

Bailey v. Patterson, 369 U.S., at 33

[82 S.Ct. 549, at 551], ‘wholly

insubstantial', ibid.; ‘obviously

frivolous,' Hannis Distilling Co. v.

Baltimore, 216 U.S. 285, 288 [30 S.Ct.

326, 327, 54 L.Ed. 482] (1910); and

‘obviously without merit,' Ex Parte

Poresky, 290 U.S. 30, 32 [54 S.Ct. 3,

4-5, 78 L.Ed. 152] (1933). The

limiting words ‘wholly' and ‘obviously'

have cogent legal significance. In

the context of the effect of prior

decisions upon the substantiality of

constitutional claims, those words

import that claims are constitutionally

insubstantial only if the prior deci-

sions inescapably render the claims

frivolous; previous decisions that

merely render claims of doubtful or

questionable merit do not render them

insubstantial for the purposes of 28

U.S.C. §2281. A claim is insubstantial

only if '"its unsoundness so clearly

NN A A OR Ee eS pale

Al3

results from the previous decisions

of this court as to foreclose the

subject and leave no room for the

inference that the questions sought

to be raised can be the subject of

controversy."' Ex Parte Poresky,

supra, at 32 [54 S.Ct. 3, at 4],

quoting from Hannis Distilling Co. v.

Baltimore, supra [216 U.S.], at 288

[30 S.Ct. 326, at 327]; see also

Levering & Garrigues Co. v. Morrin,

289 U.S. 103, 105-106, [53 S.Ct. 549,

550, 77 L.Ed. 1062] (1933); McGilvra

v. Ross, 215 U.S. 70, 80 [30 S.Ct. 27,

31, 54 L.Ed. 95] (1909)." Goosby v.

Osser, 409 U.S. 512, 518 [93 S.Ct.

854, 858-859, 35 L.Ed.2d 36] (1973).

The substantiality doctrine as a state-

ment of jurisdictional principles affecting

the power of a federal court to adjudicate

constitutional claims has been questioned,

Bell v. Hood, 327 U.S. 678, 683 [66 S.Ct.

773, 776, 90 L. Ed. 939] (1946), and chara-

cterized as "more ancient than analytically

sound," Rosado v. Wyman, supra, [397 U.S.

397], at 404, [90 S.ct. 1207, at 1214, 25

L.Ed.2d 442]. But it remains the federal

rule and needs no reexamination here, ...

Hagans v. Lavine, supra, at 536-538, 94

S.Ct. at 1379

To fully evaluate the substantiality

of the federal claims we shall first

consider the broad general principles of

applicable law; secondly, the relevant law

in the State of Ohio; and thirdly, the

relevant federal case law.

Al4

First, a review of the general legal

principles applicable to corporal punishment

indicates clearly and conclusively that such

is generally permissible.

A teacher is responsible for the

discipline in his school, and for the

progress, conduct, and deportment of

his pupils. It is his duty to maintain

good order and to require of his

pupils a faithful performance of their

duties. To enable him to discharge

such a duty effectually, he must have

the power to enforce prompt obedience

to his lawful commands. For this

reason in proper cases, he may inflict

corporal punishment on refractory

pupils.

In some jurisdictions the author-

ity of teachers to administer corporal

punishment is regulated by statute or

by school board regulations. School

boards and administrators have the

power to promulgate and to enforce

reasonable regulations governing

students in attendance with the power

to impose responsible nondiscriminatory

corporal punishment for breaches there-

of, without violating any federally

protected constitutional rights of

pupils. 68 Am. Jur. 2d 585, 586, Schools

§258, Corporal Punishment.

It is a well established principle

of the law of torts that corporal

punishment which is reasonable in degree,

and which is administered by a teacher

to a pupil as a disciplinary measure

is "privileged" in the sense that the

Al5

administration of such punishment does

not give rise to a cause of action for

damages against the teacher. 3/ A.L.R.

2d 469 (II §3(a)) Teachers civil

liability for administering corporal

punishment to to pupil.

One other than a parent who has

been given by law or has voluntarily

assumed in whole or in part the

function of controlling, training, or

educating a child, is privileged to

apply such reasonable force or to

impose such reasonable confinement as

he reasonably believes to be necessary

for its proper control, training, or

education, except insofar as the parent

has restricted the privilege of one to

whom he has entrusted the child.

Restatement of Torts 2d §147(2),

Privilege to Discipline Children;

General Principle.

One who is in charge of the educa-

tion or training of a child as a public

officer is privileged to inflict such

reasonable punishments as are necessary

for the child's proper education or

training notwithstanding the parent's

prohibitions or wishes. Restatement

of Torts 2d §153(2), Power of Parent

to Restrict Privilege.

As to children, the privilege

remains, despite any modern theories,

that to spare the rod is not to spoil

the child. A parent, or one who stands

in the place of a parent, may use

reasonable force, including corporal

punishment, for discipline and control;

Al7

Al6é

Ze There is a presumption of

correctness of the teacher's actions

-.-The teachers authority extends to and that he acts in good faith.

all offenses which directly and

immediately affect the decorum and

morale of the school... The privilege

of either parent or teacher extends to

the infliction of any corporal punish-

ment which is reasonable under the cir-

cumstances; Prosser; The Law of Torts,

The state of the law regarding corporal

punishment in Ohio is such that it has caught

the eye of the law review writers:

Between the subjective and objec-

tive formulations, a middle ground has

4th Edition, §27, Defenses to Intention- been recognized. Ohio for example,

al Interferences with Person or Property; has adopted the Prendergrass rule in

Discipline. teacher-pupil cases but not in parent-

child situations. The reason offered

for the distinction is that in the

relatively objective teacher-pupil

relationship the teacher acts ina

quasi-judicial capacity which requires

a maximum of discretion, and, there-

fore, should be given the benefit of a

subjective (good faith) standard. The

Legal Framework for Child Protection. 8/

It is quite clear that corporal punish-

ment of a pupil by a teacher dces not, in

and of itself, run counter to the general

principles of accepted law. The case law in

Ohio is equally clear on the subject:

[I]t is agreed in Ohio that a school-

teacher may inflict corporal punish-

ment to a reasonable extent if he uses

no more force than is necessary. A Therefore, before even considering the

schoolteacher in effect stands in loco state statute, it is evident that corporal

parentis and may administer reasonable punishment in Ohio is so unanimously supported

chastisement to a pupil to the same by the legal authorities as to leave no room

extent as the pupil's parent. 7/ 48 0. Jur. for the plaintiff to question its legal

2d part 2, Schools §177 Corporal Punish- acceptability. That corporal punishment may

ment. ’ be challenged on the grounds of unreasonable-

ness, excessive force, permanent injury,

improper administrator, improper receiver,

improper method, and so on, is not questioned.

In State v. Lutz, 65 Ohio L.Abs. 402,

113 N.E.2d 757, the Syllabus By the Court

states that: But the basic question of whether or not it is

permissible at all must be answered in the

Be A school teacher stands in affirmative. And thus when one challenges a

loco parentis and acts in a quasi

judicial capacity and is not liable

for an error in judgment in the matter

of punishment of a pupil.

state statute authorizing corporal punishment

one must look to other areas besides the

generally accepted bodies of tort law or the

laws and cases of the State of Ohio, for these

Ais

indeed put the plaintiff's claim, on the facts

presented, in the posture of lacking sufficient

substance to confer jurisdiction on the Court.

Turning now to the federal law in this

area, one is confronted with essentially two

questions: one relating to the Fourteenth

Amendment to the United States Consitution

(and the statutes enacted under its §5

enforcement provision); and the Fighth

Amendment to the United States Constitution

(the Cruel and Unusual Punishment clause).

Regarding the Fourteenth Amendment, the

standard that consistently appears is the

classic “reasonableness" standard. A most

concise summary of the Supreme Court cases

in this area is provided by Judge William M.

Taylor, Jr. in Wares v. Estes, 328 F.Supp.

657 (N.D. Tex. 1971):

Under the doctrine of Meyer v.

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

67 L.Ed. 1042 (1922), the state can-

not unreasonably interfere with the

liberity of parents and guardians to

direct the upbringing and education of

children under their control. 9/ These

parental rights are not beyond limi-

tation.10/ Prince v. Commonswealth of

Massachusetts, 321 U.S. 158, 166, 64

S.Ct. 438, 88 L.Ed. 645, 652 (1943).

In order for a deprivation of due

process under the Fourteenth Amendment

to occur, the rules and policies of

the school district must bear "no

unreasonable relation to some purpose

within the competency of the State." 11/

Pierce v. Society of Sisters, 268

Al9

U.S. 510, 535, 45 S.Ct. 571, 573, 69

L.Ed. 1070, 1076 (1924). (emphasis

added) Ware v. Estes, supra, 328 F.

Supp, at 658-659. 12/

The federal case law thus does not

question the permissibility, or constitut-

ionality, of corporal punishment per se; the

federal case law clearly permits corporal

punishment, limiting it only by traditional

“reasonableness" standards. The federal cases

concerning corporal punishment in the Four-

teenth Amendment context look to whether or

not the punishment is “arbitrary, capricious,

unreasonable, or wholly unrelated to the

competency of the state in determining its

educational policy." Ware v. Estes, supra,

328 F.Supp. at 659. See also: Sims v.

Board of Education of Independent School

District No. 22, 329 F.Supp. 678 (D.N.M.

1971); Glasser v. Marietta, 351 F.Supp. 555

(W.D. Pa. 1972).

[3,4] Where, as here, the plaintiff cannot

even show that there was any corporal punish-

ment inflicted at all, 13/ the Fourteenth Amend-

ment claim is so obviously without legal

merit as to cause a failure of this Court's

subject matter jurisdiction to that claim.

[5] Regarding the Eighth Amendment claim

there is an initial distinction that must be

made between criminal penalties and civil

penalties. This distinction must be made

because the Eighth Amendment is not applic-

able in a civil context. Concerning the

Cruel and Unusual Punishment clause of the

Eighth Amendment the Supreme Court has

stated that:

-

—_———E——

A20

The primary purpose of that clause

has always been considered, and prop-

erly so, to be directed at the method

or kind of punishment imposed for the

violation of criminal statutes. ..

(emphasis added) Powell v. Texas 392

U.S. 514, 531-532, 88 S.Ct. 2145, 2154,

20 L.Ed.2d 1254 (1967).

See also: Negrich v. Hohn, 246 F.Supp. 173

(W.D.Pa. 1965):

Not every physical hardship or

restraint suffered in the course of

governmental activity is to be regarded

as punishment. Otherwise much military

training in the armed services, and even

the space program, whould be proscribed.

Punishment is a penalty inflicted by a

judicial tribunal in accordance with

the law in retribution for criminal

conduct. Kennedy v. Mendoza-Martinez,

372 U.S. 144, 164-167, 83 S.ct. 554,

9 L.Ed.2d 644 (1963); cf. United

States v. Brown, 281 U.S. 437, 456-

457, 85 S.Ct. 1707, 14 L.Ed.2d 484

(1965). (emphasis added) Negrich v.

Hohn, supra, at 176. Zwick v. Freeman,

373 F.2d 110 (2d Cir. 1967).

The instant action is one in a civil

context, challenging the constitutionality

of a civil statute administered in a civil

setting. In the light of the clear federal

law concerning the Eighth Amendment, any

attempt to raise said Amendment here is so

without merit as to lack sufficient substance

to maintain subject matter jurisdiction in

this court.

A21

While the plaintiff's Amended Complaint

alleges numerous causes of action and numerous

claims against the defendants, the federal

rights upon which these claims are based reduce

down to the Eighth and Fourteenth Amendments,

and it is the Court's holding that the

plaintiff's claims under said Amendments are

“constitutionally insubstantial” and “ob-

viously without merit," prior decisions

having inescapably rendered the instant claims

frivolous. Hagans v. Lavine, quoted at length

supra.

[6,7] Besides the federal constitutional

claims, the plaintiff has also alleged other

causes of action. Pendant jurisdiction of

this Court is available only in situations

where there is substance to a federal claim.

However, the conclusion reached by the United

States Court of Appeals for the Sixth Circuit

in the Dause case has pertinence to the matter

at hand. The Court held there:

Transfer of jurisdiction to

federal courts cannot be accomplished

by the procedural devise of filing an

unsubstantial action under §1983,

coupled with a prayer for exercise of

pendant jurisdiction. Bates v. Dause,

supra, 502 F.2d at 867.

An examination of the evidence in this matter

leads only to the conclusion that this is an

insubstantial claim.

A22

Iit

CONCLUSIONS OF LAW

A.

[8] The United States District Court has

jurisdiction to consider the administration

of a state statute only where a substantial

federal claim is asserted. Hagans v. Dause,

supra.

A student to whom corporal punishment

had once been administered in accordance

with Ohio Rev.Code §3319.41 with consent of

her parent and who is threatened with a

second administration of such corporal

punishment does not establish, without more,

a violation of 42 U.S.C. §1983.

Cc.

[9] A black student in the rosture of a

student described in Conclusion of Law B.

does not, without more, represent, for

purposes of a class action, all other black

students of Schaeffer Junior High School.

D.

In the absence of a substantial claim

under 42 U.S.C. §1983, this Court lacks

jurisdiction and plaintiff's claim must

therefore be dismissed.

Let judgment enter in accordance

with the foregoing.

A23

Footnotes

l/ In May of 1973 the pertinent portion

of Ohio Rev. Code §3319.41 was:

A person employed or engaged as

a teacher, principal, or administrator

in a school, whether public or private,

may inflict or cause to be inflicted,

reasonable corporal punishment upon a

pupil attending such school whenever

such punishment is reasonably

necessary in order to preserve disc-

ipline while such pupil is subject to

school authority.

2/ Mr. Justice Powell, with whom the Chief

Justice and Mr. Justice Rehnquist joined,

wrote a dissenting opinion; and Mr. Justice

Rehnquist, with whom the Chief Justice and

Mr. Justice Powell joined, also wrote a dis-

senting opinion.

3/ Among extensive citations of cases in

support of this principle the following Ohio

cases are cited and are on point: Guyton v.

Rhodes, 65 Ohio App. 163 (1940), 29 N.E.2d

444 (rule supported by implication); Quinn

v. Nolan, 7 Ohio Dec. Reprint 585, 4 WL

Bull 81 (1897).

4/ The official comments to §147 indicate

its thorough application to the instant action:

f. The rule stated in this

section applies to any person other

than a parent who is exercising the

parental function of controlling,

——— <a

A24

training, and educating a child.

It applies to persons to whom the law

has given complete or partial charge

of such matters. Thus, it includes...

the teachers and other officials in a

public school to which the parent is

required to send his child for

education.

5/ The official comments to §153 indicate

its thorough application to the instant

action:

d. Public schools. This

subsection applies not only where the

parent is required to send his child

to a public school, but also where,

having the option to send the child

to such a school or to a private school,

he elects the former. It is also

applicable where the parent, without

obligation to do so, sends his child

to a high school or State college or

university. In such cases, the fact

that the parent expresses a desire that

the child should not be punished in a

particular way or for a particular

offense does not restrict the privilege

of the school authorities. The will of

the parent cannot defeat the policy of

the State. The school authorities,

therefore, have such disciplinary

privilege as is reasonably necessary

to secure the education of the child

irrespective of the wishes of the

parent. The same is true where the

parent sends the child to a public

school in preference to a private

school as a matter of economy or choice.

A25

6/ 48 O.Jur.2d, Schools §177, footnote 17:

Guyton v. Rhodes, 65 Ohio App. 163, 18

Ohio Op. 356, 31 Ohio L.Abs. 591, 29 N.E.2d

444 (supporting rule by implication); 1inn

v. Nolan, 7 Ohio Dec. Reprint 585; Martin v.

State, 11 Ohio N.P. (n.s.) 183, 21 aff'd by

circuit court, aff'd 87 Ohio St. 459, 102 N.E.

1132; State v. Lutz (CP) 65 Ohio L.Abs. 402,

113 N.E.2d 757.

V/ 40 0.Jur.2d, Schools §177, footnote 19:

State v. Lutz, (CP) 65 Ohio L.Abs. 402,

113 N.E.2d 757.

A teacher has the same right as a

parent, in pursuant of the rules of the

school known to the parents, to inflict

reasonable corporal punishment upon a

pupil deserving it. Quinn v. Nolan,

7 Ohio Dec. Reprint 585.

8/ Monrad G. Paulsen: The Legal Framework

for Child Protection; 66 Colum.L.Rev. 679,

688 (1966); see also, Norman D. Tripp;

Acting "In Loco Parentis" as a Defense to

Assault and Battery; 16 Clev-Mar.L.Rev. 39,

43 (1967).

9/ The Court's exact language in Meyer is

as follows:

The problem for our determination is

whether the statute as construed and applied

unreasonably infringes the liberty guaranteed

to the plaintiff in error by the Fourteenth

Amendment. 262 U.S. at 399, 43 S.Ct. at 626.

A26

10/ The Court's exact language in Prince is

as follows:

But the family itself is not

beyond regulation in the public

interest, as against a claim of

religious liberty. (citations

omitted) And neither rights of...

parenthood are beyond limitation.

Acting to guard the general interest

in youth's well being, the state as

parens patriae may restrict the

parent's control by requiring school

attendance, regulating or prohibiting

the child's labor, and in many other

ways. 321 U.S. at 166, 64 S.Ct. at

442.

1l/ The Court's exact language in Pierce

is as follows: As often heretofore pointed

out, rights guaranteed by the Constitution

may not be abridged by legislation which has

no reasonable relation to some purpose within

the competency of the state.

12/ In Ware v. Estes the Court found, as

against a claim that corporal punishment

violated EFighth and Fourteenth Amendment

rights, that the plaintiff's claim was insub-

stantial.

13/ The only time that the plaintiff was

ever paddled was well before the incident

in question, and was with the knowledge, and

consent, of the plaintiff's mother. See

Finding of Fact No. 5.

The contact between plaintiff Sims and

defendant Waln in the incident in question

was, as demonstrated by the evidence, not

A27

what any person familiar with the English

language would bring within the definition

of corporal punishment.