Request By:
Mr. and Mrs. Carroll P. Cunningham
Route # 2, Box 175
Shelbyville, Kentucky 40065
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General to consider matters regarding corporal punishment. The background information you have given to us is that your 15-year-old son and another boy were singled out by a teacher to be reprimanded for talking in class. The disciplinary method seized upon by the teacher for this situation was for the boys to take a paddling, one lick. The other boy took the paddling but your son, following your long-standing instructions to not take a paddling unless you were contacted, refused to be paddled. The refusal by your son to take a paddling somewhat significantly upset the teacher and prompted the teacher to instruct your son to bring a note from you explaining why he could not take the paddling. The following Monday you contacted the principal concerning this matter and you were told by the principal that in his opinion a paddling was just punishment for talking in class. The principal further stated that if your son did not take the paddling he should be suspended from school for one day. On Tuesday your son was told by the guidance counselor that his punishment for not taking the paddling would be two days of detention hall.
In your letter to this office you have fashioned several issues regarding the spanking or paddling (corporal punishment) of a child in our public common school. This office has not formally considered issues surrounding paddling or corporal punishment since 1975 in OAG 75-693, copy attached. A United States Supreme Court review of corporal punishment since this advisory opinion prompts us to give another close look at corporal punishment in our Kentucky public common schools. Therefore, before responding to the issues you have presented, we believe a brief overview of the legal status of corporal punishment is in order as well as some background to the felt need for the continuation of the practice of paddling.
Discipline in schools is apparently a nationwide concern of considerable proportion. The nationwide "Gallup Poll of Public Attitude Towards Education" has shown lack of discipline to be the highest ranking public concern nearly every year for the past decade. All in all, there are really very few disciplinary methods or, as they are frequently called, "punishments" available to the school teacher or administrator. Verbal reprimands, detention after school, extra assignments of homework, loss of privileges and the like, may probably be grouped at one end of a punishment for misconduct continuum with corporal punishment, suspension and expulsion being at the opposing end. While there is no difficulty in finding opponents to the concept that reasonable corporal punishment in our schools has disciplinary merit, still, in comparison to the other methods available to correct a child's more serious misbehavior, corporal punishment is a method that does not have the effect of interrupting a child's education.
Irrespective of whether one is an opponent or pronent of corporal punishment, the legal fact exists that corporal punishment is alive and well and constitutionally acceptable. The legal acceptability of corporal punishment as a disciplinary method remained under a heavy shroud of uncertainty until the United States Supreme Court finally granted certiorari to hear a Florida case which presented two basic constitutional questions to the Court concerning the use of corporal punishment in public schools. The Supreme Court case was
Ingraham v. Wright, 430 U.S. 651 (1977), and the opinion of the Court was delivered by Mr. Justice Powell. The constitutional questions presented to the Court were, in the words of Mr. Justice Powell: "Whether the paddling of students as a means of maintaining school discipline constitutes cruel and unusual punishment in violation of the Eighth Amendment; and, second, to the extent that paddling is constitutionally permissible, whether the Due Process Clause of the Fourteenth Amendment requires prior notice and an opportunity to be heard." 430 U.S. at 653. As to the first question, the United States Supreme Court concluded that disciplinary corporal punishment did not violate the cruel and unusual punishment prohibitions of the Eighth Amendment to our federal Constitution. 430 U.S. at 671. As to the second issue regarding the need for procedural due process, the Court found that corporal punishment in public schools did implicate a constitutionally protected liberty interest but held that the traditional common law remedies of civil or criminal actions for unreasonable or excessive inflection of corporal punishment are fully adequate to afford due process. Thus, the Court declined to require prior notice and a hearing before a teacher or administrator could spank a child in the public schools. 430 U.S. at 682.
With the foregoing background and legal framework regarding corporal punishment, we turn now to the first issue raised in your letter which involves parental rights and your expression of unwillingnes to have your child spanked by a school teacher. As previously noted, the last opinion from this office dealing with corporal punishment was OAG 75-693. Addressed in that opinion was a school policy on corporal punishment. In considering the policy we referred for guidance to the then recent case of
Baker v. Owen, 395 F.Supp. 294 (1975), which had been affirmed by Memorandum without a written Opinion by the United States Supreme Court in 423 U.S. 907 (1975). Besides discussing school policy, the Baker case went into some considerable detail in reviewing the issue of parental rights and corporal punishment. This same issue was decided after Baker and before Ingraham by the federal appellate court having jurisdiction over
Kentucky, the Sixth Circuit Court of Appeals, in Sims v. Waln, 536 F.2d 686 (1976). Both Baker and Sims looked at the claim that a statute authorizing corporal punishment as a disciplinary method interfered with a parent's constitutional right under the First and Fourteenth Amendments to determine disciplinary methods for their child. Both cases concluded that while there is constitutional protection embracing the right of a parent to determine and choose between means of discipline of children, this right, as others, was not absolute and when balanced against the public schools' legitimate and substantial interest in maintaining order and discipline, the schools' interest in school discipline was sufficient to overcome the parent's desires and total opposition to corporal punishment for their child. Thus, although your feelings as parents with regard to paddling for your child are natural and understandable, we believe the school may continue to employ corporal punishment for disciplinary purposes against your child and others attending his school.
Your next concern was with the apparent position of at least one teacher and one administrator in your son's school that a paddling was just punishment for talking in class. We do have some reservation whether paddling is just punishment for talking in class, but in that we are not in a position to evaluate the facts, and probably should not be, we believe this decision to discipline by paddling did and should rest in the sound exercise of discretion by the teacher under the circumstances. We do note again, however, that corporal punishment is usually considered to be one of the more serious and drastic means of disciplining a child and comes perhaps the closest in severity to suspension and expulsion. See Ingraham at 657. Our Kentucky Court of Appeals has said that the Kentucky statute regarding suspension and expulsion as discipline of students in our public schools is for "serious breaches of school regulations. " See
Dorsey v. Bale, 521 S.W.2d 76, 78 (1975) and OAG 78-673, copy attached.
Of significant legal concern to us is the matter presented in your letter regarding the school officials' reactions to your son's refusal to take the paddling, the one lick, as it is referred to on the school district notice relative to your son which was attached to your letter. You stated the principal of your son's school indicated that if your son did not take the paddling, he should be suspended from school for one day. On the other hand, your son's guidance counselor has told your son that he may, in the alternative to a paddling, have two days detention hall. It is not all that unusual for teachers to express the fact that there are various punishments available and that one form of punishment may be used as an alternative to another. In Sims, supra, the first punishment ordered by the teacher for a violation of school rules was detention after school. Two "cracks" were offered as an alternative. Sims, 536 F.Supp. at 688. However, we have great difficulty in seeing and even more difficulty in understanding how an act for which the appropriate discipline is determined to be a paddling can have as an alternative, if the paddling is not taken, suspension from school. In light of the Court's statement in Dorsey, supra, we believe paddling for misconduct is not in the same league with suspension from school for "serious breaches of school regulations, " even though admittedly getting close. We believe the chance to electfrom methods of discipline is certainly appropriate but feel such election should be from among or between comparable disciplinary methods, such as probably is the case of paddling or detention hall. We do trust in this regard that "detention hall" is not synonymous with what has been sometimes labeled as "in-school suspension" which we have concluded is inappropriate under any circumstances. See OAG 73-305, copy attached.
In this opinion we had no intention of saying what was necessarily "right" under the circumstances involved regarding your son. It is the business of the teachers and administrators to hold pupils to a strict account for their conduct. KRS 161.180, copy attached. We merely wanted to explain that corporal punishment is a legitimate form of discipline to be used in Kentucky's public common schools but with some restraints legally implied. For sure, the force used must be reasonable and not excessive; and, although teachers have, by Kentucky Penal Code provision (KRS 503.110, copy attached) , guidelines for justification of use of physical force upon a pupil, if the punishment is excessive, the school teacher or administrator inflicting the spanking may be held liable in damages to the child and possibly subject to criminal penalties. All of which brings us to a reconsideration of whether legal prudence dictates that some minimal procedural safeguards are necessary with respect to corporal punishment.
In OAG 75-693, supra, we said the minimal procedures to protect the student's interests regarding spanking set forth in
Baker v. Owen, supra, as affirmed without comment of the United States Supreme Court, were "the law of the land" and such procedures were to "be followed by school personnel in this state who choose to discipline students by corporal means." We were wrong. The Baker opinion does not stand as the law of the land. It was easy, to say the least, to be lured into making such assertions by the common sense and legal sense of the Court's opinion. While the Ingraham opinion stands for a lack of need in order to comply with procedural due process requirements of providing "prior notice and an opportunity to be heard," we do not believe the Court's opinion can be read to have held that, by implication, such procedures as suggested in Baker v. Owen are unnecessary. The "minimal procedures necessary to protect the student's interests without undercutting the disciplinary value of the punishment" outlined in Baker did not require notice and a hearing. The minimal procedures stated in Baker were:
"First, except for those acts of misconduct which are so anti-social or disruptive in nature as to shock the conscience, corporal punishment may never be used unless the student was informed beforehand that specific misbehavior could occasion its use, and, subject to this exception, it should never be employed as a first line of punishment for misbehavior. The requirements of an announced possibility of corporal punishment and an attempt to modify behavior by some other means -- keeping after school, assigning extra work, or some other punishment -- will insure that the child has clear notice that certain behavior subjects him to physical punishment. Second, a teacher or principal must punish corporally in the presence of a second school official (teacher or principal), who must be informed beforehand and in the student's presence of the reason for the punishment. The student need not be afforded a formal opportunity to present his side to the second official; the requirement is intended only to allow a student to protest, spontaneously, an egregiously arbitrary or contrived application of punishment. And, finally, an official who has administered such punishment must provide the child's parent, upon request, a written explanation of his reasons and the name of the second official who was present."
We stand by our belief and statement in OAG 75-693 to the extent we continue to believe and advise that each school district permitting corporal punishment as a form of discipline, should set forth in school board policy the types of procedures outlines in Baker and any other guidelines to be followed in administering corporal punishment. We especially say this in view of the fact that Kentucky does not have a school law or state-wide regulation on corporal punishment, unlike Florida or North Carolina, whose corporal punishment statutes set some basic parameters on the use of corporal punishment. See