The abuse of common sense
By David A. Splitt
"The Executive Director," a publication of The National School Boards Association, May 1990

In one southwestern state, the laws requiring school officials to report suspected child abuse are so strict that school personnel must report any instance of sexual contact they observe -even, many believe, if the "incident" is nothing more than teenagers engaging in a little out-of-class necking in the bleachers or hand-holding in the halls.

The same state, however, has yet to outlaw corporal punishment. Those of you who see even a remote conflict here, please raise your hands. The rest of you can leave the room or turn the page, because you're gonna hate the rest of this column.

Child abuse, physical or mental, with or without sexual contact, is a reprehensible adult behavior. It takes all forms, from parents fondling or engaging in sexual acts with their children to beatings, deprivation, or psychological denigration and harassment. It is as subtle as destroying a young child's ego and as blatant as breaking a child's arm.

For many years, the public schools (reflecting society at large) have turned a blind eye to the symptoms of child abuse. In some cases, school people simply have been ignorant of the signs of abuse or reluctant to make serious charges on the basis of inconclusive evidence. In many instances, too, school lawyers have aided those who preferred not to get involved by warning cautiously of potential liability and parental retaliation.

The attitude that abuse was an "outside" problem, off-limits to public school personnel, has been pervasive. And often, it has been in direct contrast to the behavior of public school officials when the issue is corporal punishment.

School systems that allow corporal punishment not only tolerate a form of child abuse--they sanction it. Only 19 states and the District of Columbia have banned corporal punishment by law, regulation, or policy. This means that in more than half the country, at least some school systems permit paddling or other physical punishment.

On the bright side, this statistic is actually a tremendous improvement. Eight of the 19 states banning corporal punishment did so in 1989. On the dark side, corporal punishment is virtually a way of life in some states. Texas, for example, reported 260,000 instances of corporal punishment last year. I have seen no statistics to show that discipline is better in Texas schools than in the public schools of Massachusetts, California, Michigan, New Jersey, Minnesota, Wisconsin, New York, Virginia, and the other jurisdictions where the practice is prohibited.

On the other hand, there are plenty of horror stories occurring daily in the states where the practice still flourishes. In addition to the physical injuries that often result when an adult strikes a child, increasing evidence shows that the emotional results are even more devastating.

For one thing, violence has proved to be a learned behavior. By imposing corporal punishment on schoolchildren, we teach them that physical violence is an acceptable way to solve problems.

It also has created some Catch-22 legal problems. In Alabama, a state that trails only Arkansas in frequency of use of corporal punishment, a mother who objected to her child being paddled for being too noisy was told the procedure was perfectly legal and that she had no grounds to object. Frustrated, the mother decided to give the vice principal a sample of what it was like to be on the receiving end. The mother was sentenced to six months in jail for hitting the vice principal with the same paddle that had been used on her seven-year-old child. The charge: assault with a deadly weapon.

The courts have been notoriously wishy-washy when it comes to dampening the pioneer spirit of paddle-wielding "educators." In Ingraham v. Wright, the U.S. Supreme Court refused to find that striking a Florida student more than 20 times--a flogging that required the attention of a doctor--was a violation of the Eighth Amendment ban on cruel and unusual punishment.

But during the dozen years since Ingraham, the lower courts have issued rulings on both sides of the issue. The 10th Circuit U.S. Court of Appeals has looked at the substantive due process rights of students in a different light than the Supreme Court. In Garcia v. Miera, a nine-year-old girl was held upside down and whacked with a paddle by her elementary school principal. The injury bled and left a two-inch scar. The court sided with the girl.

The 4th Circuit in Hall v. Tawney set a limit on corporal punishment by declaring that it was a violation of due process if the specific act of corporal punishment was "so brutal, demeaning, and harmful as literally to shock the conscience of the court." Over in the 5th Circuit, the judges were more tolerant, upholding a Texas law allowing disciplinary actions short of "deadly force."

Incidentally, according to the latest statistics, the public school student who is most likely to be the victim of corporal punishment is a poor, black student from the rural South.

A number of organizations, including the National Education Association, advocate a ban on corporal punishment. But other school groups oppose outright prohibitions or voice only weak opposition. In Oregon, for example, where the state legislature enacted a ban on hitting students, the Oregon School Boards Association opposed the law. At the national level, the American Association of School Administrators has advocated "alternatives to corporal punishment" but wont support an outright ban--a position the association explains as deference to "local mores."

So here we are, just months away from the final decade of the 20th century. All across the U.S., school people are learning about the trauma of child abuse, and there is a genuine public horror at parents who beat, scar, torture, molest, and otherwise abuse their children. States are passing new laws requiring public school officials to report suspected cases of child abuse to local authorities. But some of the same jurisdictions still permit school officials to engage in the same type of activity. Before the public schools in much of the U.S. get too upset about the excesses of parental behavior, they might want to clean up their own act.

David A. Splitt is a specialist in School Law and is an Attorney in private practice in Washington, D.C.

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