Abstract
Excerpted From: Shelley Ward Bennett, The Misfortune of Attending School While Black in a Fifth Circuit State, 82 Washington and Lee Law Review 625 (Spring, 2025) (438 Footnotes) (Full Document)
Students are invariably going to derive some lessons about justice (and injustice) from the treatment they and their classmates receive within the corridors of our nation's public schools. The only real question is what the content of those lessons will be. Justin Driver
Some schoolchildren are beaten, dragged, choked, gagged, hit with altered paddles or objects like baseball bats or metal weights, slammed against walls and bleachers, or sprayed in the face with chemicals. Others are not. Whether children are subject to violent punishment at school is largely determined by their “zip code or the color of their skin.”
Some may think these are vestiges of puritanical schoolhouse abuse from an era long ago. Or that corporal punishment in schools is reserved for the most offensive and dangerous infractions. Or, at a minimum, that any corporal punishment inflicted on a child at school surely does not amount to child abuse, which is typically defined “as hitting a child so harshly that there are visible marks and skin bruises.” But no.
Physical punishment of schoolchildren is still legal in parts of the United States, the only industrialized nation other than the Australian outback that retains the practice. Over 95 percent of corporal punishment occurs in southern states, and mostly within rural, lower income areas. Half of all children subjected to corporal punishment live in the Fifth Circuit states of Louisiana, Mississippi, and Texas. On average, Black children suffer corporal punishment at 2.3 times the rate of white students.
Corporal punishment is often meted out for minor offenses, such as walking on the wrong side of the hallway, eating or drinking in class, forgetting to turn in homework, failing to conform to dress codes, being tardy, talking at the wrong time, talking back to a teacher, or using the bathroom without permission. For not sitting in his assigned seat, for example, a 15-year-old Mississippi boy was paddled so severely that he fainted and fell face-first onto a concrete floor, breaking his jaw and shattering five teeth--resulting in four weeks of missed school. For attempting to use her cell phone to call her mother, a Texas middle school student was pinned face-down to the floor by two school personnel, making it difficult for her to breathe, causing her to vomit into her COVID-19 mask, and leaving her with hemorrhages, scratches, and bruises.
Of course, students are also corporally punished for more serious infractions, like fighting or other aggressive behavior. But abusive physical punishment is particularly offensive when administered for insignificant transgressions, where its use is especially hard to justify. Even more inconceivable, laws have evolved to prohibit corporal punishment of prisoners and animals, yet many states continue to permit physical beatings of schoolchildren. Consider that it is illegal in all states to abuse an animal--a felony in most. Supreme Court Justice Byron White recognized the incongruity of our social system, designating some punishments to be “so barbaric that they may not be imposed for ... the most thoroughly reprehensible [criminal] acts an individual can commit,” but then imposing that same “barbaric” punishment “on persons for less culpable acts, such as breaches of school discipline.”
Because of the brutality, the inequity, the waning societal support for the practice, and the significant amount of social science research favoring its abolishment, most countries and thirty-three states have at least partially banned corporal punishment. Legislators and judges in many parts of the country are no longer willing to turn a blind eye to the unfettered abuse of children in the name of education. Nine federal circuit courts have offered some form of constitutional protection to children who have suffered injuries from school corporal punishment. But the Fifth Circuit continues to enable violent school discipline in strict adherence to legal precedent that condones physical punishment of students and essentially denies them any meaningful remedy. And the Supreme Court has refused opportunities to intervene. This leaves public schoolchildren in the Fifth Circuit states of Mississippi, Texas, and Louisiana, who suffer fully half of all reported instances of corporal punishment in the United States, unprotected. Of these students, given their relative percentage of the student population, Black children are more than twice as likely to be on the receiving end of the paddle.
This Article first gives a brief history of school corporal punishment, its undisputed negative effects, its futility as a discipline technique, and its condemnation as a human rights violation by an overwhelming majority of international communities. Part II discusses the inequitable impact state-sanctioned physical punishment has on Black students, who are punished at disproportionate rates, and the long-term negative consequences that can result. Part III examines how corporal punishment law has developed under Supreme Court precedent that upheld the constitutionality of corporal punishment but left open at least one avenue of constitutional protection. This Part also addresses the confusion and chaos that followed in the circuit courts and the Fifth Circuit's extreme deviation from every other circuit in its position that students are not entitled to constitutional protection if state law provides adequate remedies. Part IV discusses the ramifications of this jurisprudence for schoolchildren who live in Mississippi, Louisiana, and Texas, resulting from the Fifth Circuit's improper conflation of students' procedural and substantive due process rights, and students' unlikely recovery once relegated to state court because of state immunity and indemnification statutes. Finally, Part V considers solutions for abolishing corporal punishment and protecting children from abuse in school.
[. . .]
The states and schools that continue to permit corporal punishment are outliers. But even states that purportedly prohibit corporal punishment allow it in some situations, resulting in inconsistent and incomplete bans. Without national standards, states that have passed legislation prohibiting corporal punishment have produced disparate and insufficient protections to students, and states that have not, of course, offer no protection at all. A recent national survey revealed that at least 65 percent of adults support a federal ban on school corporal punishment and only 18 percent oppose it. There is popular support. It is time for a federal ban on corporal punishment in schools.
When other efforts have been incomplete or ineffective, the issue of children's safety ultimately lands with the federal government. What to do about excessive school discipline can no longer be delegated to court systems and state governments to deal with on a fragmented, haphazard basis, offering protection to some students and denying it to others, based entirely on geographic and, for some, racial inequities.
Children are impressionable and perceptive. They are not immune to the hypocritical message conveyed by punitive physical discipline that violence is an acceptable practice. They are not immune to the message physical abuse in school conveys about their value and whether they belong in their school community. They are not blind to racial injustice in their schools.
Some children risk physical violence just because they go to school. We may not have always understood that corporal punishment was harmful and ineffective, but now we do. And now we must reject this morally shameful and discriminatory practice. The use of corporal punishment cannot be separated from its abuse. Although we cannot control all aspects of school safety, we can control whether school officials are allowed to hit children in school. The answer should always be no. All children are entitled to protection from abuse in school, regardless of their race or zip code.
Assistant Professor of Law and Director of Legal Writing at Thurgood Marshall School of Law at Texas Southern University. B.A., Trinity University, 1995; J.D., University of Houston Law Center, 1998.
