- by Jack Ryan
Legal & Liability Risk Management Institute

Use of force by school officials has been reviewed in a number of different ways.  At times, the use of force has been challenged as a punishment.ⁱ  Other courts have looked at use of force in schools as a question of due process, in other words had the student been disciplined without due process of law.ⁱⁱ  More recently courts have begun to view physical contact between school officials and students as a Fourth Amendment seizure that must meet the objective reasonableness standard.ⁱⁱⁱ

Almost half of the states in the United States allow corporal punishment.  About 27 states have banned the use of corporal punishment in schools.  The United States Supreme Court addressed the issue of corporal punishment in Ingraham v. Wright.^iv Ingraham involved students who had been the subject of corporal punishment dating back to the 1970-1971 school year in Dade County filed suit alleging that corporal punishment violated their rights against cruel and unusual punishment as well as their rights to due process.  The due process claim alleged that the students should have been entitled to a hearing prior to being punished.  The punishment in this case involved “paddling the recalcitrant student on the buttocks with a flat wooden paddle measuring less than two feet long, three to four inches wide, and about one half inch thick. The normal punishment was limited to one to five ‘licks’ or blows with the paddle and resulted in no apparent physical injury to the student.

Ingraham involved two students who alleged that the corporal punishment at their school was excessively harsh.  In one instance “Ingraham was subjected to more than 20 licks with a paddle while being held over a table in the principal’s office.  The paddling was so severe that he suffered a hematoma requiring medical attention and keeping him out of school for several days.”  A second student, “Andrews, was paddled several times for minor infractions.  On two occasions he was struck on his arms, once depriving him of the full use of his arm for a week.

In its review of the case, the United States Supreme Court concluded that the cruel and unusual punishment provision of the Eighth Amendment had historically only applied to sentenced prisoners.  The Court refused to extend the Eighth Amendment protections to student disciplinary actions.

The Court then turned to the due process claim and analyzed what process was necessary in the school setting. The Court took notice of Florida laws that would provide both criminal and civil remedies for incidence of corporal punishment that was deemed excessive. The Court also concluded that the incidence of excessive corporal punishment appeared to be an aberration.   In upholding the use of corporal punishment without requiring a prior hearing the Court held: “In view of the low incidence of abuse, the openness of our schools, and the common-law safeguards that already exist, the risk of error that may result in violation of a schoolchild’s substantive rights can only be regarded as minimal…We conclude that the Due Process Clause does not require notice and a hearing prior to the imposition of corporal punishment in the public schools, at the practice is authorized and limited by the common law.

 A case from the United States Court of Appeal for the 9th Circuit provides new meaning to the traditional school discipline of making students stand in a corner.^v  The student, a second grader at the Pukalani Elementary School was sent by his teacher, to the school’s vice principal to be disciplined for fighting. The student was put in “time out” and required to stand against a wall.   When the student refused to stay against the wall, the vice principal, using masking tape, taped the 2nd grader to a tree.   The student remained taped to the tree for approximately five minutes until a 5th grade girl told the vice principal that she did not think he should be taping the second grader to the tree.  The vice principal then instructed the girl to remove the tape.

In reviewing the facts of this case, the court first determined that the student’s claim was best analyzed under the Fourth Amendment as a seizure.  The court noted that some excessive force on students cases may best be viewed as due process claims, however concluded that this case should be judged by the Fourth Amendment standard of objective reasonableness. In applying the law to the facts, the court found that the student had been seized since being taped to a tree for five minutes would lead a reasonable person to believe they were not free to leave.  In the school setting, the reasonableness of the seizure is judged in terms of the educational objectives sought to be achieved.
The court observed that the second grader was taped to the tree for refusing to stand against a wall, not because he posed a danger to others.  Further, even a fifth grader recognized that the punishment was inappropriate. The court concluded that the case should proceed to trial for a jury’s determination of the objective reasonableness of the vice principal’s conduct.

Handcuffing Students

On December 3, 2003, the United States District Court for the District of Minnesota decided a case involving Fourth Amendment Claims filed against a school official and a police officer arising from the handcuffing of a student.^vi

 The events giving rise to this lawsuit began when R.J., a ninth grade student was nearly involved in a fight with another student.  Believing a fight was about to begin, R.J.’s teacher called for the assistance of an administrative assistant, Bronson, who handled disciplinary matters.  Upon Bronson’s arrival, he found R.J. visibly agitated and breathing heavily, however he was not physically or verbally aggressive and did not indicate that he still wished to fight. Mr. Bronson escorted R.J. to SRO Officer Barritt’s office, where Bronson directed Officer Barritt to handcuff R.J.  Officer Barritt followed this direction.  R.J. remained handcuffed for approximately 30-40 seconds while Mr. Bronson checked on further commotion occurring in the hallway.  When Bronson returned he told Officer Barritt that he had wanted the student handcuffed to teach him a lesson.  The officer immediately removed the cuffs, indicating that he could not handcuff a student for lesson-teaching purposes.  Both Bronson and Officer Barritt offered additional reasons for handcuffing the student, but both acknowledged Bronson’s statement regarding teaching R.J. a lesson.

In its review of the claims made by R.J., the court applied the less-demanding standard regarding seizures by school officials to both Bronson and Officer Barritt.  The court cited 8th Circuit Court opinions that apply the standard from New Jersey v. T.L.O., to law enforcement officers, when these officers are working in “conjunction with, and at the direction or request of school officials.”
 The court concluded that Bronson’s decision to handcuff the student to teach him a lesson was unreasonable and thus a violation of constitutional rights.  Officer Barritt, who was unaware of Bronson’s reasons, acted reasonably in handcuffing the student while he investigated the matter further.

The fact that the officer immediately removed the handcuffs hurt Bronson’s qualified immunity claim since it bolstered the position that it was clearly established that a government official would know that it was unreasonable to handcuff for this purpose.  The case was allowed to continue against Bronson and the school district on Fourth Amendment grounds.

In Gray v. Bostic,^vii the United States Court of Appeals for the 11th Circuit examined a case where a nine-year old was handcuffed in school. The student, LaQuarius Gray was participating in physical education when one of the coaches thought that she was not doing jumping-jacks with the other students.  When the coach spoke to Gray, she responded with a threat toward the coach.  This threat was overheard by a second coach as well as the school’s SRO, Officer Bostic, who was also present.  Coach Horton, who had overheard the threat, indicated that she would take care of the situation, but Officer Bostic insisted that he would take care of it.  He took Gray into the hallway and handcuffed her.  He reportedly told her: "[T]his is how it feels when you break the law," and "[T]his is how it feels to be in jail."  Deputy Bostic responded to Gray’s lawsuit that he handcuffed her "to impress upon her the serious nature of committing crimes that can lead to arrest, detention or incarceration and to help persuade her to rid herself of her disrespectful attitude. Deputy Bostic's discovery responses also stated that he ‘did not feel the need to apologize to LaQuarius Gray for telling her that she committed a misdemeanor in my presence and showing her what would happen if a less generous officer than I were to arrest her for her actions.’”  Both coaches reported that they were never fearful that Gray, a nine-year old would carry out the threat.

In analyzing the case, the court held that Officer Bostic’s decision to detain and question Gray was reasonable in light of the fact that he had overheard her make a threat toward a teacher.  The court then turned to the handcuffing and asserted:

The problem in this case for Deputy Bostic is that, at the time Deputy Bostic handcuffed Gray, there was no indication of a potential threat to anyone's safety. The incident was over, and Gray, after making the comment, had promptly complied with her teachers' instructions, coming to the gym wall and then to Coach Horton when told to do so. There is no evidence that Gray was gesturing or engaging in any further disruptive behavior. Rather, Gray had cooperated with her teachers and did not pose a threat to anyone's safety. In fact, Coach Horton had insisted that she would handle the matter, but Deputy Bostic still intervened. Deputy Bostic does not even claim that he handcuffed Gray to protect his or anyone's safety. Rather, Deputy Bostic candidly admitted that he handcuffed Gray to persuade her to get rid of her disrespectful attitude and to impress upon her the serious nature of committing crimes. In effect, Deputy Bostic's handcuffing of Gray was his attempt to punish Gray in order to change her behavior in the future.

Thus, Deputy Bostic's handcuffing Gray was not reasonably related to the scope of the circumstances that justified the initial investigatory stop. Rather, the handcuffing was excessively intrusive given Gray's young age and the fact that it was not done to protect anyone's safety. Therefore, the handcuffing of Gray violated Gray's Fourth Amendment rights.

The United States Court of Appeals for the 11th Circuit denied Officer Bostic’s motion for summary judgment and qualified immunity allowing the case to proceed to trial.

Use of Force on a Preschooler

The United States Court of Appeals for the 9th Circuit has continued reviewing physical contact by school officials on 4th Amendment grounds. Preschooler II v. Clark County School District^viii involved a four-year old disabled preschooler who was regularly slapped and beaten by his teacher.  He was also forced to walk on the asphalt from the bus to the school without shoes; had unexplained bruises; and, on at least one occasion was body-slammed into a chair while a detective looked on. The detective subsequently testified to the body-slam at an administrative hearing. 

In analyzing the case the court stated:

“Our initial task is to determine whether the physical abuse allegations rise to the level of constitutional violations. We begin with the principle ‘that excess force by a [school official] against a student violate[s] the student's constitutional rights.’ The consequences of a teacher's force against a student at school are generally analyzed under the ‘reasonableness’ rubric of the Fourth Amendment, although historically courts applied substantive due process analysis under the Fourteenth Amendment's ‘shocks the conscience’ test.
The teacher's seizure of Preschooler II and her alleged slapping, forced participation in self-beating and slamming were unreasonable in light of the child's age and disability and the context of the events. Preschooler II posed no danger to anyone nor was he disruptive in the classroom. At such a young age and suffering from significant and serious disabilities, autism as well as tuberous sclerosis, Preschooler II was even more vulnerable than the average pre-school child.

The School Officials belittle the allegations and claim that LiSanti's conduct cannot be considered anything more than, at the very worst, ‘a failure to conform to best practices.’ This effort to candycoat the claims ignores the court's obligation to accept the allegations as true and to characterize the alleged abuses in the light most favorable to Preschooler II. When so construed, the beating, slapping, and slamming of Preschooler II by LiSanti violated the Fourth Amendment's prohibition of the use of excessive force against public schoolchildren.”
The court also concluded that the plaintiff had put forward enough evidence to get to a jury with respect to the potential liability of supervisors and the school district.  The court noted the obligation of school officials, who have knowledge, to remediate a dangerous situation that a child has been placed in.  The court concluded that there was sufficient evidence that supervisory personnel were aware of the preschooler’s situation with respect to the teacher, and they failed to correct that situation.

____________________________

Citations