Letter to PTAVE from Jeff Charles, February 13, 2007

Dear PTAVE friends,

With Kansas senators introducing a "paddler immunity" law there, making it state 10 or so with such laws, I've been thinking more lately that somehow we should try to support a Federal constitutional lawsuit. Currently the paddler immunity states do not have any legal due process for paddle abuses and injuries. I believe this fact makes it unconstitutional under the due process clause that was one of the challenges to paddling that Ingraham v Wright* ruled on.

The recent Mississippi case Jordan featured with the boy hitting the floor would be a good one (of many "good cases" that arise almost daily) since the parents are frustrated and are willing to sue, but in ultrahigh paddling states like Mississippi the local culture blackballs complaining parents. Lawyers get blackballed also and are often unwilling to take such a case no matter how meritorious. Ultimately no lawsuit is legally possible in Mississippi anyway due to its paddler immunity laws, although authorities, whether in ignorance or collusion, sometimes put on a pretense of an initial investigation, perhaps merely to assuage angry parents. Outside help will be needed to get any kind of sustained Federal lawsuit going, even with a number of willing victims to come forward.

Although this would not be a direct challenge to paddling, a reasonable fear of lawsuits might help move schools and states to more closely examine the true prevalence of injurious, reckless, and dangerous paddlings, and might also highlight the fact that paddling is immeasurable violence that cannot be quantified or made safe.

A secondarily benefit of a few more lawsuits that might have details reported in local and state newspapers is that the presently hidden practices, corruption, and harms of paddling would be brought to light in these communities. This aspect could even be a specific point before the court. The court not only wished to have lawsuits serve as due process, but also wished for any possible ban on paddling not to come from the courts directly, but to come from the people themselves after public debate. Informed public debate is difficult to have if the public cannot get accurate information about abuses in local districts. Getting this kind of necessary information is very hard to do when the paddlings themselves are held in secret, and when there is no due process for injuries afterwards and all too often thus no news reporting of abuses. In these states nearly all harmful and exploitive cases remain hidden from public view and discourse, and most often the victims suffer in silence. Many are deeply ashamed to talk about it openly, let alone sue in a local community, particularly when the abuse took on a highly sexual tone -- as paddling is also commonly prone to do, and particularly with adolescent victims.

It is interesting that even child protective services, although not a legal due process entity cited by the courts, cannot even intervene in even the most abusive and injurious cases. They have no authority to prevent similar and future reckless and/or abusive paddle injuries to children, even with a known reckless or dangerous paddler continues to cause injury after injury, or exploits child after child. The injuries that might otherwise be challenged run the gamut from "routine bruises" to the more severe cases like the 17-year-old boy in Vidor, Texas who had a vertebra fractured in a paddling.

Like the American public the justices in 1977 liked to cite the "long-standing traditions" of paddling, but today we are in a brave new world that did not really exist even in 1977, with even greater potential for hidden exploitation and harms to children that might be challenged. From my reading of the entire opinion years ago I believe one part of Ingraham mentioned that paddling could not be humiliating. One effect of this ruling was that paddling began to be done ever more in private, in the principal's office with one or very few witnesses rather than in front of the class or in front of a packed gym as often was done before. This aspect could itself be a challenge as paddling is very often inherently humiliating, but even the common 1970s "closed door" fix has been turned into a farce since that time by technology itself. There now exists a new and very real risk of child pornographic exploitation with paddled children and teens of both genders with spy cameras permeating paddling schools. For example paddling Biloxi schools said in a USA Today article that it had over 500 Internet linked spy cameras with private coded access for each camera. The FBI has uncovered at least one child spanking pornography web ring with 1200 members worldwide and raking in over a million dollars per year, but current technology makes these finds difficult and rare even if these sites are pervasive. Law enforcement would currently have even more difficulty prosecuting child paddling pornography from schools since the videotaping itself is legal and even immunized from lawsuits or police action, and money changing hands could be laundered with some "instructional videos for paddling principals" pretext. Several paddler immunity states such as Texas specifically allow students to be videotaped without theirs or their parents knowledge or permission, and none prevent it. Alabama waived all child abuse laws, including protections against making child pornography, whenever teachers pick up a paddle. We can only wonder whether such acts were careless or deliberate on the part of key lawmakers, but the risk of child pornographic exploitation is high, yet parents and students are largely ignorant of the risks, and they would have no right to sue if they did know. Harm and exploitation can now take new forms that did not exist in colonial times, or even in 1977, and they cannot be reasonably prevented as long as paddling is allowed to go on.

Ingraham v Wright* is often said to simply "allow paddling," but in reality only two narrow constitutional aspects were challenged, and the courts ruled that due process in the form of lawsuits was necessary. There may well be many other untried ways to challenge paddling such as "equal protection" since sexually the paddling might be more exploitive or humiliating for female victims, or because males are paddled more often, etc. Beyond a challenge to paddler immunity laws using Ingraham, we should ever bear in mind a loss on one Federal lawsuit over one narrow aspect is not a blanket endorsement of paddling for all time without any rule of law in any aspect, and we should make the media aware of that fact also.

When I ran this by our good friend and champion of this cause, Nadine Block, she had some reservations on it and wanted to think it over, so feel free to express the same. I don't have any ax to grind on this and I could easily be swayed either way. I'm sure there is plenty of room for disagreement among friends on whether this is a worthwhile thing to pursue, since a challenge to the paddler immunity laws alone ultimately would not stop paddling even if we won, and also since it would almost certainly be a daunting and costly effort for whoever takes it on.

Maybe we could get the ACLU or another human or civil rights group involved.

Any thoughts? Email me at jeff1844@aol.com

Jeff Charles
P.O. Box 237, Roseville, MI 48066-0237
On the Web at www.nopaddle.com

10th paragraph of Section IV of INGRAHAM ET AL. v. WRIGHT ET AL., SUPREME COURT OF THE UNITED STATES, 430 U.S. 651, April 19, 1977.

"Florida has continued to recognize, and indeed has strengthened by statute, the common-law right of a child not to be subjected to excessive corporal punishment in school. Under Florida law the teacher and principal of the school decide in the first instance whether corporal punishment is reasonably necessary under the circumstances in order to discipline a child who has misbehaved. But they must exercise prudence and restraint. For Florida has preserved the traditional judicial proceedings for determining whether the punishment was justified. If the punishment inflicted is later found to have been excessive - not reasonably believed at the time to be necessary for the child's discipline or training - the school authorities inflicting it may be held liable in damages to the child and, if malice is shown, they may be subject to criminal penalties." [Emphasis added]

Read entire decision at http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/ingraham.html



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