Anti school corporal punishment – First attempts at viable equal protection and cruel punishment constitutional challenges -- NEW!

http://nospank.net/n-u88.htm

For a more comprehensive treatment click on: Corporal Punishment in Schools: Economic, Liable, Practical, Ethical, Constitutional?


[3/17/09]
Would we antis know how to answer this: Suppose Oliver had asked for more five times already this week (there isn’t any more to go around; “cannot” have kids constantly coming up front for no reason); suppose he had already been sanctioned with time outs; suppose now he was faced with enduring either two time outs or a beating – his choice. What could be wrong with that?

Answer: there is no compelling need to keep Oliver from coming back every day [or a school child from being tardy every day], as long as his actions did not lead all the other kids don’t start following him every day, making the lunch room impossible to operate [or repeated tardiness somehow making a school room impossible to operate].

No compelling need = no legitimate override of equal protection of the law from being beaten with a stick designed to inflict the maximum amount of unbearable pain.

If Oliver were bringing down the house or broke a bunch of plates or stalked and seriously beat a smaller boy the state (or private school) could arguably claim a compelling interest in corporal punishment. This is sort of the equivalent to justifiable defense (what physicists might call a unified theory).

Question of permanent damage: adults are protected from armed assault, without any need to claim permanent damage, but for the hellishness experience itself. Battered wives do not need to cite permanent damage.

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Sovereignty: acting “in loco parentis” is just a legal mechanism to confer the ability to mange children. Acting “in loco parentis” does not confer the parent’s so-called sovereignty over the children to the teacher – does not reduce students to being virtual slaves who may be beaten at will (may even a parent legally spank a child for nothing?).

Even the parents’ sovereignty itself is a legal mechanism to protect families from untoward intrusion from the state (the teacher is the state – no one to protect from the state; if parents have sovereignty, how can the state’s extension of parental authority to the teacher lead to the teacher overriding the parents’ will not to beat the child?) – the child is never truly a “slave” per se.

If the parent or guardian who has (or is supposed to have) a supportive relationship with the child loses control, the child tends to think nobody cares about it and literally (!) stops caring about itself (easier to imagine with a badly neglected 12 year old than with a merely out of parents’ control 18 year old but just as true) – leaving it prey to every street temptation: robbery and burglary!

So, even if antis don’t approve of corporal punishment at home the state must stay out of it because the consequences of the parent losing control are literally catastrophic for the child. Anyway how many parents practice the ritual beatings done in schools (holes in the paddle!)? How many parents have a menu of swats for each offense like Winona, AK? How many kids have trouble sitting down come to school from home?!

Now, if parents can be liable to prosecution under normal assault statutes if they strap a child for nothing -- for instance, to mistakenly show the child they legally can -- then, teachers who beat a child for less than compelling need -- for instance, possessing tobacco --should be considered liable under normal assault statutes, even if the teacher has to confiscate tobacco from the same student every day, because while it is a nice rule – which may or may not accomplish anything –breaking the rule even every day never leads to catastrophic consequences. Give the student as many detentions as you please, but do not step over what would be a felony assault line with anyone who was not a minor student.

With the above, antis have a nice meaty legal topic for discussion on the talking head shows, not just bleeding hearts and bruised bottoms. Progressive talk shows would love to do the topic but they may have needed more material for discussion then the antis had up until now.

[2/2/09]
Allowing corporal punishment in schools can be argued as making an exception to equal protection – requiring a compelling state interest (we are talking what could otherwise be felony assault here) to override the protection?

To work out what might pass the compelling interest test, let us take an upside-down look at the Oliver scene (“More?”). We antis would not be nearly as horrified if Oliver had done something egregiously wrong, like cold bloodedly beating up a smaller kid or sneaking into the kitchen and breaking up a bunch of dishes. We mostly might not approve anyway – “find another punishment” – but most of us would not get worked up enough to organize against the sort.

To meet the test of compelling interest a student should either have done something egregious – being late repeatedly or smoking in the parking lot does not qualify as wrong-wrong; prevention of such hardly not qualify as a compelling state interest – or be doing something that is chronically and seriously damaging to himself or the school that therefore must be stopped.

The latter prescription might possibly be fulfilled by a seventh or eighth grader perpetually doing the “terrible twos” in the classroom, perpetually disrupting class and perpetually making impossible his own education – relatively rare instances are cited along with the supposed CP resolution. Ideally, law could allow one-time, limited punishment – only after a judicial hearing agreed that parameters are fulfilled. Courts are actually very well equipped to deal with just such questions – perhaps only in minutes. Leaving interpretation to the school would invite the kind of interpretation that cops chronically bring the Fourth Amendment, leaving students rights less than fully protected; and leaving the school open to criminal prosecution if it erred in punishing wrongly.

Ditto, for any application of corporal punishment in high school. To meet compelling interest it would have to be done only on a solely individual basis; no preset formula.
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Let’s deal for a moment with the timing of the emotionally dependent stage in children, which has implications for both equal protection and cruel and unusual punishment aspects of the issue.

Boys are in the emotionally dependent stage, for all practical purposes as much as if they are 12 years old, until they reach 18 1/2 – at least in my observation – at which point their emotional dependent stage switches off like a light switch over one week’s time (from 12 to an adult) – again, as closely as I can observe. Girls should switch off a year or year and a half sooner – I don’t have enough personal observations to be exact.

My observations were related to juvenile delinquency. If a kid did not think anybody cared about him – wrong about half the time -- he literally did not care about himself – meaning no penalty could deter him from crime. Strangely enough boys who were merely out of control of weak but committed guardians (during what NYC police call the “pissing vinegar stage”) got every bit as hysterically alienated as the worst neglected kids. Oddly, again, 5 or 6 weeks of intensive attention would turn the craziest kid around (unlike the 2 or 3 decades of positive socialization needed to retire the paranoia underlying heroin or serious alcohol addiction) – no longer out of his own control – again, strangely, the change comes all in one day at the very end “invasion of the body snatchers “syndrome”) – just to make this practical discovery available to anyone reading this. After 18 1/2 they may have become I-don’t-want-to-work-aholics from a youth of no work or no school – cannot face life at hard labor.
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Now for cruel and unusual punishment plain and simple. There are voluminous reports of early grammar school children being permanently damaged (permanently afraid to go to any school, “not the same kid”) after being beaten. For these kids the verdict is certainly cruel and unusual punishment – plain and simple.

Now for cruel and unusual punishment by proportionality. Most students who are whipped in school while in the emotionally dependent stage maintain very friendly attitudes toward the adult – as long as he is not usually going out of his way to be a bad guy. Post the emotionally dependent stage they may turn to resenting or even hating the teacher for life. They don’t think of the infraction as wrong-wrong (e.g., repeated lateness) in adult perspective – they don’t think of the infraction at all (it is so meager). All they very typically think of is of the person “who beat them like they were an animal.”

Many equate the beating to rape even immediately. Legions of parents are angrily up in arms over what they take for virtual “rape.” Many students who are never beaten themselves are profoundly upset over the beating of other students.

Here the subjective is objective.

If it is rape to you it is rape. It is a factor of innate social feelings like the switching off of the emotionally dependent stage.

I would go much further and speculate that most of the horror of corporal punishment in the school may come from the aspect of being beaten for nothing wrong-wrong – what makes it virtual “rape.”

Topsy-turvy (Oliver style) again: I speculate if a teacher needed to take three whacks to join the local volunteer-fireman’s fraternity, he wouldn’t fret over it, he could sleep the night before, he’d take his three shots of unbearable pain and bear it. But, if he had to take three whacks from the school administration (strain you imaginations please folks) for turning in his pay hours late too many times he would go out of his mind, couldn’t sleep the night before, feel ten times worse at the time he got hit and feel like he was “raped” for years after.

That’s what I think. I’m sure this feeling fits many and probably not most students (how horribly I would feel). I suspect the kid who doesn’t seem to take paddling seriously is the one who doesn’t feel the social aspect (meaning beating is mostly effective on those who feel "raped?").

In any case the never the same kid aspect for young grammar school students and the “rape” horror aspect for too many, probably most high school students raises the proportionality concept of the cruel and unusual constitutional prohibition – and makes the case for not “raping” students over what amounts to office management matters very convincingly I think, if only for a limited number of students (we have no way to tell who they are in advance) who will certainly be permanently traumatized a beating for doing nothing wrong-wrong.

ADDENDUM
If corporal punishment is "optional" as it is in many institutions, then, by definition there must be no COMPELLING need -- overriding equal protection rights (if not humane policy). If there is no compelling need in one constitution there is no compelling need in others.

Optional above was in quotes because (outside) circumstances can coerce a student into taking a beating they never would otherwise agree to. In a Tru video a girl reportedly asks for a break because she is sick and cannot do detention Friday afternoon and cannot do it Saturday or she will miss her Junior (I believe) prom -- and opts to take a beating she may never have been willing to otherwise. A boy needs to go to work and so takes a beating instead of Saturday detention.

Her reported "offense": being caught with a cigarette pack -- his: being barely late for class for the sixth time; on a large campus he took a little too long because he talked to a girl (notify Congress!). I read somewhere that she became class president the next year -- that doesn't sound like an infant terrible.

Don't believe that a beating does less damage than a suspension. Ten years from now, a three day suspension will not have any effect on your life. Spending four years in an institution in which you may be beaten for what amounts to "office management" purposes may plausibly permanently affect your outlook on life for the worse. Paddling supporters love to cite how it did permanently affect them -- usually amounting to adopting a more obsequious attitude towards authority; which can be read as being less confident and assertive about their place in the adult world, which is not where we want our precious children to go these days.


FOR MY FINAL THOUGHTS ON SCHOOL CP (much shorter), LOOK HERE:

http://ontodayspage.blogspot.com/2009/04/closer-to-final-equal-protection.html