# Petition — Warren v. Killory > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0602%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 929 ## Text 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, ———