Safford v. Redding in Context: A Brief History of Corporal Punishment at Common Law

Robert Magee,* Lead Writer

I. Introduction

Today, the Supreme Court of the United States will hear arguments in the case of Safford Unified School District v. Redding.1 The case involves the strip search of a thirteen-year-old girl, Savana Redding, on the orders of her school’s vice principal after she had been implicated in a scheme to distribute prescription strength ibuprofen.  The strip involved her taking off all her clothes and shaking out her underwear in front of the vice principal’s female assistant and the school’s female nurse.2 Ms. Redding instituted the present section 1983 claim for violation of her Fourth Amendment right against unreasonable search and seizure.3

Though the precise issue today will be whether the Fourth Amendment protects students against being strip searched by school officials and, if not, what level of suspicion must school officials have before doing so, the facts of the case invoke a debate which has murmured throughout the history of the common law and education: what authority does a school official possess over the person of a student?  The treatment at common law of corporal punishment, the physical discipline of students, sheds valuable light on this debate, and provides insight into what the court may be considering during today’s argument.

II. The In Loco Parentis Doctrine

The legal mechanism which allowed corporal punishment by educators against students notwithstanding laws against battery was the doctrine of in loco parentis, the legal fiction that certain individuals, for our purposes educators, occupy the position of parent in relation to students.4 In loco parentis enabled educators to assume the role of the child’s parent when children came under their charge and thus allowing them to inflict corporal punishment in certain instances.  It was fundamentally accepted that parents had the authority to inflict corporal punishment, and therefore so could the educator.5

Legally, this status was conferred upon teachers through delegation from a student’s natural parents.  As Blackstone, the eminent English jurist, put it in 1765;

[The parent] may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.6

The scope of the educator’s authority under the in loco parentis doctrine was generally circumscribed 1) by the extent to which parents themselves were permitted to inflict corporal punishment and 2) the scope of the delegation itself, because few courts recognized the doctrine as conferring full parental authority.7

Indeed, under these two conditions courts limited this delegation in a number of ways.  Many courts recognized that this delegation of parental authority was subject to express curtailment by the parent.  Thus, a parent could limit an educator’s authority over her or his child and thereby limit the extent to which a teacher could punish his or her child.8 Thus, in the case of Morrow v. Wood, decided in 1874 by the Supreme Court of Wisconsin, a teacher was found to have exceeded his authority in punishing a student for not learning a subject the student’s father did not want him to learn once the father had fully informed the teacher of his wishes.9 Even when primary education in public schools became compulsory, this ability of parents to limit the in loco parentis delegation remained very much intact.10

More often, however, courts limited the in loco parentis delegation by an implied recognition, as stated by the Supreme Court of Vermont in 1859 in Lander v. Seaver, that an educator “does not act from the instinct of parental affection”11 and so needed judicial supervision in administering corporal punishment.  This understanding spurred many courts to deny educators the full ambit of parental authority when it came to punishing students.12 Implied in this reasoning is the understanding that in loco parentis is indeed a legal fiction and the concomitant conclusion that it should not be relied upon too heavily.  For both these reasons, the delegation of parental authority was limited, though, as we will see, unevenly, by many courts.

A major consideration for courts applying the in loco parentis doctrine was the position educators occupied as administrators of schools and their duty to maintain order and discipline therein.13 As James Kent, put it: “[T]he power allowed by law to the parent over the person of the child may be delegated to a tutor or instructor, the better to accomplish the purpose of education.”14 Courts and educational theorists of the nineteenth century felt similarly.  In State v. Pendergrass the Supreme Court of North Carolina characterized the in loco parentis doctrine thusly:

One of the most sacred duties of parents, is to train up and qualify their children, for becoming useful and virtuous members of society; this duty cannot be effectually performed without the ability to command obedience . . . and to enable him to exercise this salutary sway, he is armed with the power to administer moderate correction . . . .15

The understanding that the education of children required that educators balance a multitude of factors in educating particular students and that this balancing often justified corporal punishment ran prominently through literature of the day.16 In some instances, this duty to maintain order and discipline in schools was considered apart from in loco parentis and was held to constitute a source of authority of its own,17 though for most courts the in loco parentis doctrine simply transferred a parent’s duty to maintain discipline in their child to educators.18 Still, the understanding that educators needed corporal punishment in order to maintain a school environment in which education was possible was a recurrent theme of cases involving corporal punishment under the in loco parentis doctrine.  It is worthwhile to note, however, that courts acknowledged the danger of relying too heavily on this reasoning.  Here is one example from the aforementioned Pendergrass decision:

[R]ules less liberal towards teachers, cannot be laid down without breaking in upon the authority necessary for preserving discipline, and commanding respect; and that although these rules leave it in their power to commit acts of indiscreet severity, with legal impunity, these indiscretions will probably find their check and correction, in parental affection, and in public opinion; and if they should not, that they must be tolerated as a part of those imperfections and inconveniences, which no human laws can wholly remove or redress.19

As this example demonstrates, courts were careful to keep any authority springing from a teacher’s duty to maintain discipline on a short leash, because they understood the risk of taking this particular strain of logic too far.

Courts universally held that in loco parentis demanded that corporal punishment be administered both reasonably and in the best interest of the child.  The threshold inquiry into whether an educator was beyond her authority in inflicting corporal punishment was whether she did so in an honest effort to educate the child.20 Thus it was held in Steber v. Norris that “that the general rule [is] that one standing in loco parentis has the right to punish a child under his care, if the punishment is moderate and reasonable, and for the welfare of the child.”21 There an eleven-year-old boy who had been sent to work on a farm for a summer was whipped and made to work particularly long hours after having violated rules on the farm.22 The Supreme Court of Wisconsin held that a jury’s finding that the punishment was excessive would render it beyond in loco parentis in that it could not have been in the best interest of the child.23

All courts held that the in loco parentis doctrine allowed an educator to inflict corporal punishment only where it was reasonable and they were careful not to condone excesses taken within the doctrine.24 As we will see, determinations of what was reasonable proceeded along two different lines and allowed educators wider or narrower latitude in inflicting corporal punishment.25 This crucial limitation of the in loco parentis doctrine as it applied to corporal punishment speaks directly to the limitations discussed above as well as to the understanding that even a parent’s authority to punish a child is not entirely plenary.26 Further, the reasonableness of corporal punishment, regardless of which of the rubrics we are about to explore it is measured against, was a question for the jury.27

It can be said that the common law’s demand that corporal punishment be “reasonable” springs not from the in loco parentis doctrine but from a deeper understanding that children are to be raised compassionately.  Further implicit in this is the understanding that corporal punishment is of an inherently limited utility in the education of children.  Indeed, no amount of hitting will teach children arithmetic.  Corporal punishment could only be useful when applied to the more ephemeral lessons of moral character and socialization discussed above.  When considered, then, as a tool of limited utility in achieving a goal susceptible of no clear definition and weighed against Anglo-Saxon society’s developing aversion to violence against children, we find corporal punishment occupying a tenuous position at common law.  The in loco parentis doctrine reflects this, and will continue to do so as we trace its application in American courts.

III. The In Loco Parentis Doctrine in American Courts

As Supreme Court Justice Clarence Thomas noted in his concurrence in Morse v. Frederick, application of the in loco parentis doctrine split American courts along two distinct lines.28 The first began with State v. Pendergrass, an 1837 holding by the Supreme Court of North Carolina, which held a teacher liable for corporal punishment only when it caused lasting injury and was effectuated by malice,29 and the second, with the Supreme Court of Vermont’s 1859 ruling in Lander v. Seaver as its avatar, asked only whether an educator’s punishment was excessive in determining liability.30 Justice Thomas mischaracterized each of these lines as striking “down only punishments that were excessively harsh.”31 Each line placed significant restrictions on the conduct of educators with regard to students.

A – The Pendergrass Line

As one might expect, the Pendergrass line of cases provided educators the most discretion of the two.  Pendergrass involved the whipping of a student which left marks on the student’s arm and neck that lasted only a few days.32 In overturning the teacher’s conviction for battery on the grounds that the jury had been improperly instructed, the court was careful to leave the educator’s position as “judge” of the classroom undisturbed.33 Thus, the analysis employed in Pendergrass, which was later applied by other courts, was circumscribed to consider only whether the punishment caused lasting injury or was the product of malice before considering the circumstances of the punishment itself.34 This framework, however, was broken down by courts applying it and the result was a much more fluid analysis than the Pendergrass opinion would lead one to expect.

For example, the Supreme Court of Alabama in the case of Dean v. State held that the Pendergrass standard allowed a jury to “consider the nature of the instrument used, and all the other attendant circumstances”,35 which ostensibly allowed juries to question the educator’s decisions as judge of the classroom.  The same court went on to say that the inquiry into whether punishment was the product of malice rendered consideration of the circumstances of punishment appropriate.36 Most often, this consideration of the circumstances would hinge on the instrument of correction.  Such was the case of State v. Spiegel in which a girl was beaten after her caretaker found her in possession of a book on dancing.37 The court there, in overturning a trial order dismissing the indictment of the caretaker, found that the fact that the caretaker used a two and a half foot stick to beat her was enough to allow a jury to infer malice on the caretaker’s part.38

Often, courts would allow juries to infer from the injury, regardless of whether it was a lasting one, malice on the part of the educator or person standing in loco parentis.  In the case of People v. Green, the Supreme Court of Michigan upheld a jury instruction which allowed the jury to infer from the nature of the punishment actual malice on the part of the person inflicting it.39 The case involved an adopted daughter who was accused by her adopted father of stealing fifty cents.40 When she denied taking the money, the father stripped her naked, tied her up and left her locked in a room for nearly two days.41 In upholding the adopted father’s conviction, the court held, “It is sufficient to show that the punishment was cruel and unreasonably severe, and such as in its very nature would negative the idea of good faith on the part of the parent.”42 The Michigan court cited favorably the application of Pendergrass in State v. Koonse, a 1907 ruling by the Supreme Court of Montana.43 Koonse involved another adopted parent who beat his twelve-year-old adopted son after the son had attempted to run away a number of times.44 In upholding the conviction of the adopted father, the court determined that “[t]he existence of criminal intent will be presumed to have prompted the commission of the excessive act, whether it resulted in permanent injury or disfigurement, or in temporarily subjecting its victim to merciless physical pain.”45 Thus, the Pendergrass line of reasoning, as deferential as it appears to be on face, allowed a court significant inroads to determine whether an educator was liable to a student for battery in inflicting corporal punishment.

That being said, Pendergrass courts did tend to exonerate teachers of wrongdoing more often than not.  For example, when considering the “lasting injury” prong of the Pendergrass analysis, at least one court stretched the definition of “lasting injury” in favor of educators where malice was absent.  In the case of Drum v. Miller it was held that where a teacher threw a pencil at a student, thus stabbing him in the eye and permanently blinding him, the student could not recover damages unless he could show that the teacher intended permanent injury.46 Similarly, in Stephens v. State, the Texas Court of Criminal Appeals overturned the conviction by jury of a teacher who had whipped a student with a switch after it was determined that the student had written a disparaging note about another student.47 When overturning trial convictions or upholding verdicts for educator-defendants, courts applying Pendergrass would do so on the grounds that instructions to the jury failed to provide educators enough discretion over the administration of schools.48

B – The Lander Line

Courts applying the reasoning employed in Lander v. Seaver were less deferential to the determinations of teachers and asked only whether punishment exceeded the boundaries of “moderate correction” and so became “clearly excessive.”49 The Maine Supreme Judicial Court best summarized the rule:

[T]he master should not be held to have exceeded his discretion . . . unless the punishment is clearly excessive . . . .  The true criterion is “the general judgment of reasonable men.” . . .  The correct rule holds the teacher liable if he inflicts a punishment which the general judgment of such men, after thought and reflection, would call clearly excessive.50

Lander courts refused to adopt two pillars of the Pendergrass analysis’s rationale.  First, they rejected the Pendergrass line’s notion that educators acted in a quasi judicial capacity within the classroom.  As the Lander court itself held:  “the schoolmaster does not belong to the class of public officers vested with such judicial . . . powers.  He is included . . . in the domestic relation of master and servant, and his powers and duties are usually treated of as belonging to that class.”51 Second, Lander courts did not find that the excessiveness of punishment hinged on the educator’s malice.52 Instead, it was merely one of many factors to be considered when determining whether an educator had surpassed his or her authority.53 Finally, of the two lines, it was the Lander line which was more widely adopted at common law.54

Lander courts were, as one would expect, more openly hostile to corporal punishment as an educational tool.  Courts applying the reasoning of Lander often cite to Cooper v. McJunkin, a case decided by the Supreme Court of Indiana six years prior to the holding in Lander.  The McJunkin court expressed a deep hostility to the application of corporal punishment in schools.55 As the court states: “The very act of resorting to the rod demonstrates the incapacity of the teacher for . . . school government.  For such a teacher the nurseries of the republic are not the proper element. They are above him.  His true position will readily suggest itself.”56 From this distrust sprung a willingness to embrace judicial oversight of in loco parentis relationships in the application of corporal punishment.57 Courts adopting the Lander line of reasoning were quick to remind educators that corporal punishment should be exacted with parental affection and kindness.58

All this amounted to a greater scrutiny of corporal punishment by courts in the Lander line.  For example, in Tinkham v. Kole, the Supreme Court of Iowa overturned a directed verdict granted in favor of a teacher who struck a student for not taking his gloves off quickly enough and insodoing ruptured his eardrum.59 In overturning the trial order and remanding the case to a jury, the court noted that liability for the act could only be determined after a jury had been allowed to consider the punishment and its attendant circumstances and ruled on whether the punishment was reasonable under the in loco parentis doctrine.60 Similarly, in Sheehan v. Sturges, the Supreme Court of Errors of Connecticut empowered trial courts to engage a broad inquiry into the circumstances of corporal punishment.61 The Supreme Court of Iowa, in another case, summarized the position of the Lander line when it held that “[a]s a matter of public policy, courts and juries should therefore hold a strong and stern hand over teachers who abuse their sacred and responsible position.”62 Thus we see that the Lander line did not bear the aversion to judicial scrutiny of educators’ discretion that we saw under the Pendergrass line.63

C – Trends in the Application of In Loco Parentis

Between the Pendergrass and Lander lines, it was the Lander line which was more widely adopted at common law.64 The Lander rationale’s suspicion of corporal punishment was, after-all, consistent with twentieth century developments in child psychology which tended to discourage it as harmful to the development of a child’s mind. The work of Dr. Arnold Lucius Gesell and John Broadus Watson both tended to suggest that doing violence to children would render them more likely to do violence to others.65 In this finding, educational theory was really coming back to where Locke had placed it back in 1692.66 It was natural for courts to become more comfortable visiting judicial scrutiny on the actions of educators.

Further, among courts adopting either line, the trend was moving towards delving deeper into the circumstances of an incident of corporal punishment.   For example, in Drake v. Thomas a court, applying the Pendergrass analysis,67 considered the student’s history at a prior school, communications between the student’s parents and teachers, the student’s size and age in overturning a civil verdict against a teacher for assault.68 Compared to the strong Pendergrass-ian language against interfering in the quasi-judicial discretion of educators,69 this represents a significant evolution.  Though the trend can also be seen in the Lander line, the impetus to exercise oversight was always exercised in it and its development into the twentieth century was less pronounced.

The in loco parentis doctrine itself, as it relates to corporal punishment, was also quietly being usurped by state statutes throughout the twentieth century,70 thus curtailing the proliferation of in loco parentis common law analysis.  Indeed, by 2007 all fifty states had adopted statutes governing corporal punishment.71 Of these, twenty-eight banned the practice entirely72 while the remaining twenty-two states only allowed it under limited circumstances.73 Further, the Supreme Court’s holding in Monnell v. City of New York opened up 42 U.S.C. § 1983 as a means of redress for students alleging battery against municipalities through public school teachers.74 As such, cases considering corporal punishment increasingly did so under a state statutory75 or a Fourteenth Amendment/substantive due process76 analysis as we move toward the end of the twentieth century.

These developments notwithstanding, the Lander analysis can be said to have achieved the status as the single common law understanding of a teacher’s right to inflict corporal punishment by 1977.  It was in this year that the Supreme Court decided Ingraham v. Wright in which it considered constitutional and state statutory challenges to the use of corporal punishment in a Florida school.77 Justice Powell, writing for the majority, did not address the Pendergrass analysis head on, but did state that  “At common law a single principle has governed the use of corporal punishment since before the American Revolution: Teachers may impose reasonable but not excessive force to discipline a child.”78 It was thus that Justice Powell consolidated the somewhat disparate history of corporal punishment at common law.

IV. Conclusion

Whatever the Court rules in the case, Safford has a long history of case law toward which it will be supremely relevant.  As we have seen, the authority of educators over the bodies of their students bears an inverse relationship to American society’s regard for its inviolability and that this regard has grown in the last fifty years.  That may change with the Court’s decision in Safford v. Redding.  Should it find for the school district, the Fourth Amendment could become a new frontier for proponents of corporal punishment and the authority of educators to physically compel students to obey school policies.

Marisa Floriani, editor.


* I would like to thank Umair Khan, Benjamin Loefke, Matthew Rozea, Meredith Perry, and Erika Winkler with whom I researched this topic and without whose insight this post would not be possible.

1 Safford Unified School Dist. v. Redding, 129 S.Ct. 987 (2008). See ScotusWiki, Safford Unified School District, (last visited Apr. 20, 2009) (providing access to the case’s docket and submitted briefs).

2 Redding v. Safford Unified School Dist. No.1, 531 F.3d 1071, 1075 (9th Cir. 2008).

3 Id. at 1081.

4 Dean v. State, 8 So. 38, 39 (Ala. 1890); Calway v. Williamson, 36 A.2d 377, 378 (Conn. 1944); Cooper v. McJunkin, 4 Ind. 290, 292 (1853) (referring to in loco parentis as the “sacred relation of the parent”).

5 Id.

6 1 William Blackstone, Commentaries on the Laws of England *453.

7 Marlar v. Bill, 178 S.W.2d 634, 635 (Tenn. 1944) ([T]he teacher stands in the stead, in a somewhat limited sense, of the parent . . . .”); Territory v. Cox, 24 Haw. 461 (Haw. 1918) (“[The teacher] he is in loco parentis to his pupil we think is true only in a limited sense.”).

8 Morrow v. Wood, 35 Wis. 59, 62 (1874). See also State v. Mizner, 50 Iowa 145 (1878) (upholding the conviction of a teacher for battery where the educator had beat a student for not attending a class which her father had excused her from attending).

9 Id. at 64.

10 School Board Dist., No. 18, Garvin County v. Thompson, 103 P. 578, 579 (Okl. 1909) (extending Morrow to public schools notwithstanding state laws demanding compulsory attendance: “[T]he right of the board of education to prescribe the course of study and designate the text-books to be used does not carry with it the absolute power to require the pupils to study all of the branches prescribed in the course in opposition to the parents’ reasonable wishes . . . .”); State v. Freguson, 144 N.W. 1039, 1044 (Neb. 1914).

11 Lander v. Seaver, 32 Vt. 114, 120 (1859).  See also Cooper v. McJunkin, 4 Ind. 290 (1853).

12 Marlar v. Bill, 178 S.W.2d 634, 635 (Tenn. 1944); Gardner v. State, 4 Ind. 632 (1853) (“[Unreasonable corporal punishment] on the child, even though he be truant and perhaps stubborn, are more than parental feeling can bear.”); Territory v. Cox, 24 Haw. 461, 468 (1918) (“We have no hesitancy in disagreeing with the proposition that in such cases the teacher exercises judicial functions, and the other proposition that he is in loco parentis to his pupil we think is true only in a limited sense.”).

13 Dean v. State, 8 So. 38, 39 (Ala. 1890) (holding that through in loco parentis and educator, “as to such matters of discipline, exercises pro hac vice judicial functions within the bounds above stated.”); Heritage v. Dodge, 9 A. 722, 723 (N.H. 1887) (“He is the judge to determine when and to what extent correction is necessary; and, like all others clothed with a discretion, he cannot be made personally responsible for error in judgment when he has acted in good faith and without malice.”); State v. Jones, 95 N.C. 588, 590 (1886). (“His judgment must be presumed correct, because he is the judge, and also because of the difficulty of proving the offence, or accumulation of offences, that called for correction.”).

14 2 James Kent, Commentaries on American Law *205.

15 State v. Pendergrass, 19 N.C. 365, 365 (1837).

16 Hall, supra note 14, at 135; Potter & Emerson, supra note 19, at 355; Prince, supra note  26, at 330-31 (stating that if teachers make their “decisions in a hasty way, considering them after they are given rather than before, or if [their] decisions are arbitrary, with no apparent justice in them even to the child himself, there will be much opposition on his part, not only to [their] unjust decisions, but to all decisions [they] may give.”).

17 Andreozzi v. Rubano, 141 A.2d 639, 641 (Conn. 1958) (differentiating between the educators authority as it emanated from in loco parentis and as it emanated from a duty to maintain discipline).

18 E.g., Boyd v. State, 7 So. 268 (Ala. 1890) (“This power of correction vested by law in parents is founded on their duty to maintain and educate their offspring.”).

19 State v. Pendergrass, 19 N.C. 365, 368 (1837) (emphasis added).

20 See State v. Pendergrass, 19 N.C. 365, 365 (1837); Lander v. Seaver, 32 Vt. 114, 120 (1859); Danenhoffer v. State, 69 Ind. 295, 297 (1879); Boyd v. State, 7 So. 268, 269 (Neb. 1890); Steber v. Narris, 206 N.W. 173, 175 (Wis. 1925); see also Ingraham v. Wright, 430 U.S. 651, 681 (1977); People v. Curtiss, 300 P. 801, 802-03 (Ca. App. Ct. 1931).

21 Steber v. Norris, 206 N.W. 173, 175 (Wis. 1925) (emphasis added).

22 Id. at 174.

23 Id. at 176. The court in this case actually remanded the case for an upward valuation of damages based on its finding that the jury’s determination that the plaintiff’s punishment was excessive was inconsistent with the minimal damages it had awarded the defendant.

24 Ingraham v. Wright, 430 U.S. 651, 661 (1977).

25 State v. Koonse, 101 S.W. 139, 142 (1907); State v. Lutz, 113 N.E.2d 757, 758-59 (1953); People v. Mummert, 50 N.Y.S.2d 699, 702 (N.Y. Co. Ct. 1944) (stating, in overturning the conviction of an educator for battering a student that “[i]t may not be said upon this record that the People established beyond a reasonable doubt either that the defendant acted from anger or malice or that he was unreasonable in determining that corporal punishment should be inflicted.”).

26 Hinkle v. State, 26 N.E. 777, 778 (Ind. 1891) (upholding the conviction of a father for chaining his daughter to a sewing machine after she failed to complete house work he had assigned to her).  See also People v. Green, 119 N.W. 1087, 1090 (Mich. 1909) (upholding the conviction for battery against and adoptive father against his adopted daughter for punishing her for lying).

27 Dean v. State, 8 So. 38, 39 (Ala. 1890); State v. Straight, 347 P.2d 482, 490 (Mont. 1959); Clasen v. Pruhs, 95 N.W. 640, 642 (Neb. 1903); Drum v. Miller, 47 S.E. 421, 435 (N.C. 1904); State v. Jones, 95 N.C. 588, 589 (1886); State v. Speigel, 270 P. 1064, 1065 (Wyo. 1928).

28 Morse v. Frederick, 127 S.Ct. 2618, 2633 (2007) (Thomas, J., concurring).

29 State v. Pendergrass, 19 N.C. 365, 367 (1837).

30 Lander v. Seaver, 32 Vt. 114, 123 (1859).

31 Id.

32 Pendergrass, 19 N.C. at 368.

33 Id. at 367.

34 Id.

35 Dean v. State, 8 So. 38, 39 (Ala. 1890).

36 Boyd v. State, 7 So. 268, 269 (Ala. 1890).

37 State v. Speigel, 270 P. 1064, 1065 (Wyo. 1928).

38 Id.

39 People v. Green, 119 N.W. 1087 (Mich. 1909).

40 Id. at 1087.

41 Id.

42 Id. at 1090.

43 Id. at 1089.

44 State v. Koonse, 101 S.W. 139, 140 (Mo. 1907).

45 Id. at 141.

46 Drum v. Miller, 47 S.E. 421, 435 (N.C. 1904).

47 Stephens v. State, 68 S.W. 281, 282 (Tex. Crim. App. 1902).

48 Id.; Heritage v. Dodge, 9 A. 722, 723 (N.H. 1887) (“He is the judge to determine when and to what extent correction is necessary; and, like all others clothed with a discretion, he cannot be made personally responsible for error in judgment when he has acted in good faith and without malice.”); State v. Jones, 95 N.C. 588, 590 (1886) (“It would be a dangerous innovation, fruitful in mischief, if, in disregard of an established rule assigning limits to parental power, it were to be left to left to a jury to determine in each case whether a chastisement was excessive and cruel, and to convict when such was their opinion.”).

49 Lander, 32 Vt. at 120.  See also, e.g., Sheehan v. Sturges, 2 A. 841, 842 (Conn. 1885); State v. Vanderbilt, 18 N.E. 266, 267 (Ind. 1888) (“[W]here . . . the punishment is not administered with unreasonable severity, a proceeding for an assault and battery cannot be maintained against the teacher.”); Cooper v. McJunkin, 4 Ind. 290, 291-92 (1853); State v. Fischer, 60 N.W.2d 105, 109-10 (Iowa 1953); Fabian v. Maryland, 201 A.2d 511, 518 (Md. 1964); Patterson v. Nutter, 7 A. 273, 274-75 (Me. 1886); Anderson v. State, 3 Tenn. (3 Head) 455 (1859); Hathaway v. Rice, 19 Vt. 102, 107 (1846).

50 Patterson, 7 A. at 275.

51 Lander, 32 Vt. at 120.

52 Id. at 121 (“[T]he question of excessive punishment is not affected by the motive or intent of the master . . . .”).

53 Patterson v. Nutter, 7 A. at 275; Stanfield v. State, 43 Tex. 167, 168 (1875) (“[w]hether [the treatment] is moderate or excessive must necessarily depend upon the age, sex, condition, and disposition of the child, with all the attending and surrounding circumstances, to be judged of by the jury”).

54 Carpenter v. Commonwealth, 44 S.E.2d 419, 423 (Va. 1947) (“[T]he great preponderance of authority is to the effect that a parent has a right to punish a child within the bounds of moderation and reason, so long as he does it for the welfare of the child . . . .”); People v. Curtiss, 300 P. 801, 802-03 (Ca. App. Ct. 1931).

55 Cooper v. McJunkin, 4 Ind. 290 (1853).

56 Id. at 292.

57 Id. at 291 (“Such a system of petty tyranny cannot be watched too cautiously nor guarded too strictly. The tender age of the sufferers forbids that its slightest abuses should be tolerated. So long as the power to punish corporeally in school exists, it needs to be put under wholesome restriction.”); Lander, 32 Vt. at 121.

58 State v. Vanderbilt, 18 N.E. 266, 267 (Ind. 1888) (“Under our cases a school-teacher has the right to exact from pupils obedience to his lawful and reasonable demands and rules, and to punish for disobedience “with kindness, prudence, and propriety.”).

59 Tinkham v. Kole, 110 N.W.2d 258, 262 (Iowa 1961).

60 Id.

61 Sheehan v. Sturges, 2 A. 841, 843 (Conn. 1885) (holding that admission of prior misconduct by the student was an appropriate inquiry where an educator was being tried for inflicting corporal punishment).

62 Gardner v. State, 4 Ind. 632, 635 (1853).

63 State v. Jones, 95 N.C. 588, 589 (1886) (If, whenever parental authority is used in chastising them, it could be a subject of judicial inquiry whether the punishment was cruel and excessive . . . and the father himself exposed to a criminal prosecution at the instance of the child, in defending himself from which he would be compelled to lift the curtain from the scenes of home life, and exhibit a long series of acts of insubordination, disobedience and ill-doing– it would open the door to a flood of irreparable evils far transcending that to be remedied by a public prosecution.”)

64 Carpenter v. Commonwealth, 44 S.E.2d 419, 423 (Va. 1947) (“[T]he great preponderance of authority is to the effect that a parent has a right to punish a child within the bounds of moderation and reason, so long as he does it for the welfare of the child . . . .”); People v. Curtiss, 300 P. 801, 802-03 (Ca. App. Ct. 1931).

65 See Kerry W. Buckley, Mechanical Man: John Broadus Watson and the Beginnings of Behaviorism (1989); E.G. Boring, Arnold Lucius Gesell, 4 Hist. of Psychology in Autobiography 123 (1952).

66 John Locke, Some Thoughts Concerning Education 37 (NuVision ed. 2007) (1692). (“[Corporal] punishment contributes not at all to the mastery of our natural propensity to indulge corporal and present pleasure, and to avoid pain at any rate, but rather encourages it, and thereby strengthens that in us, which is the root from whence spring all vicious actions, and the irregularities of life.”).

67 Drake v. Thomas, 33 N.E.2d 889, 891 (Ill. App. Ct. 1941).

68 Id. 893.

69 Dean v. State, 8 So. 38, 39 (Ala. 1890) (“This is the necessary result of the rule that the parent, as to such matters of discipline, exercises pro hac vice judicial functions within the bounds above stated.”); State v. Jones, 95 N.C. 588, 589 (1886).

70 Cynthia Denenholz Sweeney, Corporal Punishment in Public Schools: A Violation of Substantive Due Process?, 33 Hastings L.J. 1245, 1246-47 (1982).

71 David R. Hague, The Ninth Amendment: A Constitutional Challenge to Corporal Punishment in Public Schools, 55 U. Kan. L. Rev. 429, 432 (2007).

72 E.g., Iowa Code Ann. § 289.21 (1) (West 2008).

73 Id.

74 Monell v. City of New York Dep’t of Social Services, 436 U.S. 658, 690 (1978).

75 People v. Curtiss, 300 P. 801, 802-03 (Ca. App. Ct. 1931).

76 E.g., C.A. ex rel. G.A. v. Morgan County Board of Educ., 577 F. Supp. 2d 886, 890-91 (E.D. Key. 2008); Moore v. Willis Independent School Dist., 233 F.3d 871 (5th Cir. 2000).

77 Ingraham v. Wright, 430 U.S. 651, 653-54 (1977).

78 Id. at 661.

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