The following entry is excerpted from the Black Letter and Comments from Tentative Draft No. 2, Part II–Children In Schools; Chapter 8–Discipline And Order Maintenance; Topic 1–The Use Of Force In Response To Student Misbehavior; Section 8.10. Use of Force to Control and Punish.

The full draft contains additional Reporters’ Notes. This draft will be presented to membership at the 2019 Annual Meeting for approval. Until approved, this is not the position of The American Law Institute and should not be represented as such.

§ 8.10. Use of Force to Control and Punish

          In a criminal proceeding or a civil suit alleging an intentional tort, the use of reasonable force by a teacher or other school authority with responsibility for the care and education of students is privileged if the school authority reasonably believes that the force is necessary to maintain order and safety in the school.

          The use of force to punish through the infliction of pain is not necessary to maintain order or safety, and therefore corporal punishment is prohibited in public schools unless expressly authorized by statute, and any such authorization is to be narrowly construed. 

Comment:

          a. Background and history. School personnel’s authority to discipline students dates back to English common law, under which teachers acted “in loco parentis,” or “in the place of a parent,” when children were placed by parents in school personnel’s care and control. See William Blackstone, Commentaries * 453. As with parents (see § 3.24), school personnel’s use of force, including corporal punishment, was considered an appropriate exercise of disciplinary authority, and, as with parents, school authorities were afforded a privilege, sometimes called the “school master’s privilege,” against tort and criminal liability for the use of force when that use of force was deemed to be reasonable. With the imposition of states’ constitutional obligation to provide all students with a public education (see Chapter 6), and the implementation of compulsory attendance laws (see Chapter 7), schools’ authority to use force became independent of parental delegation or consent. Although the school and parents’ privileges overlap considerably, the school authorities’ privilege is narrower, as it is limited to achieve the school’s educational purpose.

          Until the latter half of the 20th century, corporal punishment was the primary form of punishment administered in schools. Although school authorities’ privilege to use corporal punishment, defined as the use of force to inflict pain in order to punish student misbehavior, was held to be constitutional by the U.S. Supreme Court in Ingraham v. Wright, 430 U.S. 651 (1977), most states now prohibit the use of corporal punishment in public schools by statute. In the minority of states that continue to permit corporal punishment, that authority is also set out, and limited, in statute. Even in these states, local school boards commonly and increasingly prohibit the practice. In contrast, all states continue to allow school personnel to use the force reasonably necessary to maintain order and keep people safe.

          State statutes setting out the scope and limits of school authorities’ privilege to use force against students build upon the common law’s reasonableness standard—whether they limit the use of force to order maintenance, or continue to permit corporal punishment—and courts, in determining whether school authorities are protected by the privilege, continue to look to the common law to guide their assessments of reasonableness. For the majority of states in which corporal punishment is prohibited, this Restatement provides a common, unified, interpretation of the reasonableness standard under statute and common law. Where corporal punishment is still authorized by statute, this Restatement notes that the reasonableness contemplated in those statutes is increasingly out of step with trends in the law. Even in the minority of states where corporal punishment is still permitted, the reasonableness standard increasingly restrains the scope of that privilege.

Read the complete Black Letter and Comments from this Section.