John K. Van De Kamp, Attorney General
Attorney General's Office
1515 K. Street
P.O. Box 944255
Sacramento, CA 94244-2550
November 1, 1989
Dear Mr. Van De Kamp:
On November 30, 1987 this organization wrote requesting a clarification on Sections 49000 and 49001 of the Education Code. A copy of our letter and your response of January 8, 1989 are enclosed. (Enclosure 1 and Page 5 of Enclosure 2). We were deeply concerned about the fact that some California public school teachers were inflicting pain on pupils by forcing them to run laps and do push-ups. Though our November 30th letter focused on the questions of forced exercise, there were other forms of pain infliction that we were seeing such as the denying to a child the use of the bathroom until the child wet himself or herself, and the forcing of a child to remain standing and motionless for hours at a time. The perpetrators of these acts apparently were unaware of the corporal punishment ban or at least unaware of the definition of corporal punishment in 49001 (a).
The correspondence of January 8, 1988 (page 5 of Enclosure 2) on your letterhead, bearing the signature of Deputy Attorney General Harlan E. Van Wye, supported our position that inflicting pain as punishment "by any means" is prohibited. This position was again confirmed by the Department of Education's "Program Advisory" of December 23, 1988 issued to all county and district superintendents. (Enclosure 2).
Notwithstanding the simplicity of the law and subsequent efforts by your office and the Department of Education to explain it in language even a child could comprehend, there are those who have been looking for an area of ambiguity in the language that would permit them to weasel their way around it.
One argument they have offered is that the Program Advisory is merely "advice" and therefore not binding. Also they attempt to justify punitive push-ups and running on the basis that not all people feel pain when they engage in these activities, that some people even do them for health or for fun. Therefore, they conclude, imposing such activity as punishment is not prohibited. If one pursues that logic, spanking a pupil would not be prohibited either because some people don't find spanking painful. In fact, the people who hire prostitutes to whip them probably would insist that the practice is totally pleasurable, and by that standard, not prohibited under 49000, 49001 of the Education Code!
Superintendent Bill Honig's remark, published in the Sacramento Bee, July 11, 1989, "I don't think that's corporal punishment," referring to forced push-ups and running, (Enclosure 3) and his refusal to subsequently resolve the confusion spread by that remark, has played directly into the hands of those who want to circumvent the law. What we had been trying to make clear, Mr. Honig suddenly rendered obscure.
He repudiated the good work of his own legal staff by rescinding the December 23 Program Advisory, and he has refused to heed the good advice of leading experts in the field of physical education who had written to advise him that forced exercise as punishment is educationally unsound and counter-productive and to explain why. (Enclosures 4, 5, 6, 7, and 8).
Even though the Superintendent claimed only to be expressing an opinion, the general perception among teachers has been that his opinion on what they may or may not do has the weight of law since he is the chief educator. By means of this misuse of authority, he has effectively nullified on the key provisions of the corporal punishment prohibition. Now, any teacher who punishes a pupil by forcing that pupil to engage in a pain-inducing activity can claim merely to be doing what Bill Honig, his boss, has publicly approved.
Some school administrators and members of law enforcement have suggested to this organization that the true meaning of 49000 and 49001 can only be resolved by litigation. Does that mean we must wait until a child is maimed or dead, and a lawsuit on behalf of the victim is successfully concluded, before the scofflaws can be warned? We know of one recent California case in which a public school pupil sustained a permanent injury to both knees as a result of punitive push-ups and another recent case in which a pupil sustained life-threatening kidney damage as a result of being refused by her teacher the right to urinate when she needed to. These calamities probably would not have occurred if the teachers involved had been accurately apprised of the law.
The corporal punishment ban was created to protect the 4.5 million California schoolchildren from "the willful infliction of, or willfully causing the infliction of, physical pain." According to the definition, physical pain which is caused by "athletic competition or other such recreational activity" is not corporal punishment if the activity is "voluntarily engaged in." The key word is "voluntary." Punishment, by definition, is not voluntary.
Most teachers do not, and would not, cause pain to their charges irrespective of a prohibition against it. However, for a small minority of teachers who need the restraint of law, that law now is little more than ink on paper. In the three years the law has been in force, they have received contradictory signals when they received any signals at all. Now, they have every reason to believe that one person's interpretation of "corporal punishment" is about as good as another's. That was not the intention of the legislature. So we come to you, as we did in 1987, for a determination on this issue that will put it to rest finally and conclusively so that children will be protected as the law intends.