Once again, the right of school districts to use corporal punishment became a topic of recent discussion in the State Legislature. It seems every time this topic emerges, many believe that school districts will lose the right to use corporal punishment. However, while school districts still maintain the right to use corporal punishment for the reasonable discipline of students, the Legislature has now provided a statutory method for parents to “opt out” of such punishment for their own children.
With the enactment of House Bill 359, the 82nd Legislature added Section 37.0011 to the Texas Education Code, which provides the following definition of corporal punishment in Section (a):
In this section, “corporal punishment” means the deliberate infliction of physical pain by hitting, paddling, spanking, slapping, or any other physical force used as a means of discipline. The term does not include:
physical pain caused by reasonable physical activities associated with athletic training, competition, or physical education; or
the use of restraint as authorized under Section 37.0021.#
Section 37.0011 goes on to state that a school district is permitted to use corporal punishment (provided that the district has adopted a policy permitting the use) unless a student’s parent or guardian “has previously provided a written, signed statement prohibiting the use of corporal punishment as a method of student discipline.”# While this language provides parents a method of “opting out” of the use of corporal punishment, it also places the responsibility of preventing the use of corporal punishment on the parents. Notice that the statement prohibiting the use of corporal punishment must be in writing and signed by the parent. Such written and signed statement must be provided to the District each year in order to continue the prohibition of such punishment.# A parent’s prohibition of corporal punishment may be revoked at any time by submitting a separate signed, written statement.#
Questions have arisen about this topic, however, based on the TASB Policy Service recommended FO (LOCAL) policy issued with the recent Update 91. That suggested policy now includes a provision in the corporal punishment policy that corporal punishment must be administered by a school official of the same gender as the student receiving the discipline. Be assured that, even though that may well be a recommended “best practice,” there is no legal requirement to that effect based on state law or court decisions involving corporal punishment. Districts will want to carefully consider whether to retain that provision in light of the composition of the administrative staff at each campus; it may be impossible to comply with such a policy provision if there are not both male and female administrators at each campus.
Other than the new statutory option for parents to prevent the use of corporal punishment on their children, a school district’s right to use corporal punishment has not been further abridged. Historically, school districts have had the right to “inflict moderate corporal punishment for the purpose of restraining or correcting the refractory student,” as long as that punishment is reasonable.# When the right to use corporal punishment was challenged as “cruel and unusual punishment,” the U.S. Supreme Court held that the federal law’s prohibition of “cruel and unusual punishment” under the 8th Amendment was “inapplicable” to corporal punishment in public schools.# Furthermore, Section 22.0512(c) of the Education Code recognizes a district’s right to use corporal punishment, and specifically states that nothing in this section of the Education Code prohibits a school district from “enforcing a policy relating to corporal punishment.”#
But before you go swinging into action, remember that corporal punishment must be reasonable and must not be excessive. Section 22.0511(a) of the Education Code states the following:
A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee's position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.#
Under this provision of the Education Code, school district officials are immune from liability for administering corporal punishment, as long as the discipline was not excessive. Furthermore, the use of force against a student is only justified to the extent it is legal under the Penal Code.# Section 9.62 of the Penal Code states that the use of force is justified when the punisher is entrusted with the supervision or administration of the person being punished, and the punisher reasonably believes the force is necessary to maintain discipline in a group.# Texas Courts and the 5th Circuit have interpreted this provision to allow educators to use “non-lethal force against students, but only if they act reasonably.”# So next time you’re in the on-deck circle, remember, reasonable and not excessive.
This article does not constitute legal advice. Please consult with your school law attorney if you have any questions regarding the use of corporal punishment.
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