The following entry is excerpted from the Black Letter and Comments from Tentative Draft No. 2, Part II–Children In Schools; Chapter 8–Discipline And Order Maintenance; Topic 1–The Use Of Force In Response To Student Misbehavior; Section 8.10. Use of Force to Control and Punish.

The full draft contains additional Reporters’ Notes. This draft will be presented to membership at the 2019 Annual Meeting for approval. Until approved, this is not the position of The American Law Institute and should not be represented as such.

§ 8.10. Use of Force to Control and Punish

          In a criminal proceeding or a civil suit alleging an intentional tort, the use of reasonable force by a teacher or other school authority with responsibility for the care and education of students is privileged if the school authority reasonably believes that the force is necessary to maintain order and safety in the school.

          The use of force to punish through the infliction of pain is not necessary to maintain order or safety, and therefore corporal punishment is prohibited in public schools unless expressly authorized by statute, and any such authorization is to be narrowly construed. 

Comment:

          a. Background and history. School personnel’s authority to discipline students dates back to English common law, under which teachers acted “in loco parentis,” or “in the place of a parent,” when children were placed by parents in school personnel’s care and control. See William Blackstone, Commentaries * 453. As with parents (see § 3.24), school personnel’s use of force, including corporal punishment, was considered an appropriate exercise of disciplinary authority, and, as with parents, school authorities were afforded a privilege, sometimes called the “school master’s privilege,” against tort and criminal liability for the use of force when that use of force was deemed to be reasonable. With the imposition of states’ constitutional obligation to provide all students with a public education (see Chapter 6), and the implementation of compulsory attendance laws (see Chapter 7), schools’ authority to use force became independent of parental delegation or consent. Although the school and parents’ privileges overlap considerably, the school authorities’ privilege is narrower, as it is limited to achieve the school’s educational purpose.

          Until the latter half of the 20th century, corporal punishment was the primary form of punishment administered in schools. Although school authorities’ privilege to use corporal punishment, defined as the use of force to inflict pain in order to punish student misbehavior, was held to be constitutional by the U.S. Supreme Court in Ingraham v. Wright, 430 U.S. 651 (1977), most states now prohibit the use of corporal punishment in public schools by statute. In the minority of states that continue to permit corporal punishment, that authority is also set out, and limited, in statute. Even in these states, local school boards commonly and increasingly prohibit the practice. In contrast, all states continue to allow school personnel to use the force reasonably necessary to maintain order and keep people safe.

          State statutes setting out the scope and limits of school authorities’ privilege to use force against students build upon the common law’s reasonableness standard—whether they limit the use of force to order maintenance, or continue to permit corporal punishment—and courts, in determining whether school authorities are protected by the privilege, continue to look to the common law to guide their assessments of reasonableness. For the majority of states in which corporal punishment is prohibited, this Restatement provides a common, unified, interpretation of the reasonableness standard under statute and common law. Where corporal punishment is still authorized by statute, this Restatement notes that the reasonableness contemplated in those statutes is increasingly out of step with trends in the law. Even in the minority of states where corporal punishment is still permitted, the reasonableness standard increasingly restrains the scope of that privilege.

 

Read the complete Black Letter and Comments from this Section.

Elizabeth S. Scott

Reporter, Children and the Law

Elizabeth S. Scott is the Harold R. Medina Professor of Law at Columbia Law School. Scott teaches family law, property, criminal law, and children and the law. She has written extensively on marriage, divorce, cohabitation, child custody, adolescent decision-making, and juvenile delinquency. Her research is interdisciplinary, applying behavioral economics, social science research, and developmental theory to family/juvenile law and policy issues.

Richard Bonnie

Associate Reporter, Children and the Law

Richard J. Bonnie is Harrison Foundation Professor of Law and Medicine, Professor of Public Policy, Professor of Psychiatry and Neurobehavioral Sciences, and Director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. ­­He teaches and writes about health law and policy, bioethics, criminal law, and public policies relating to mental health, substance abuse, and public health. He has co-authored leading textbooks on criminal law and public health law.

Emily Buss

Associate Reporter, Children and the Law

Emily Buss's research interests include children's and parents' rights and the legal system's allocation of responsibility for children’s development among parent, child, and state. In recent years, she has focused particular attention on the developmental impact of court proceedings on court-involved children, including foster youth and youth accused of crimes. In addition to courses focused on the subjects of her research, Buss teaches civil procedure, evidence, and family law. 

Clare Huntington

Associate Reporter, Children and the Law

Clare Huntington is an expert in the fields of family law and poverty law. Her book, Failure to Flourish: How Law Undermines Family Relationships (Oxford 2014), won an Honorable Mention for the Professional and Scholarly Excellence (PROSE) Award in Law and Legal Studies from the Association of American Publishers. She has published widely in leading law journals, exploring the intersection of poverty and families and with a recent focus on non-marital families.

Solangel Maldonado

Associate Reporter, Children and the Law

Solangel Maldonado is the Joseph M. Lynch Professor of Law at Seton Hall Law.  Her research and teaching interests include family law, feminist legal theory, race and the law, and international and comparative family law. Over the past decade, her scholarship has focused on the intersection of race and family law and the law’s influence on social norms of post-separation parenthood. She is currently working on a book for NYU Press that examines how the law shapes romantic preferences and how these preferences perpetuate racial hierarchy and economic and social inequality.

David D. Meyer

Associate Reporter, Children and the Law

David Meyer became the 22nd Dean of Tulane Law School in 2010. His expertise relates to constitutional law and family law, and he has written extensively on topics at the intersection of the two fields. He served as U.S. national reporter on family law at several congresses of the International Academy of Comparative Law, including Washington (2010), Utrecht (2006) and Brisbane (2002), and he has delivered endowed lectures or keynote addresses at BYU, Florida, Hofstra, Michigan State and other venues.

Jennifer Morinigo

The American Law Institute

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