The Supreme Court upheld corporal punishment in the schools in Ingraham v. Wright (1977). But the Biden administration is trying to get rid of it anyway, by implying that it may be racially discriminatory — even though it likely lacks the power to ban corporal punishment.
“It’s unacceptable that corporal punishment remains legally permissible in at least 23 states,” Education Secretary Miguel Cardona said in a March 24 “Dear Colleague” Letter to school officials. “Despite years of research linking corporal punishment to poorer psychological, behavioral, and academic outcomes, tens of thousands of children and youth are subjected to beating and hitting or other forms of physical harm in school every academic year, with students of color and students with disabilities disproportionately affected,” he said. “The practice of corporal punishment is antithetical to positive child and adolescent development and school safety,” he claimed.
The Education Secretary notes that blacks and boys disproportionately experience corporal punishment. “Boys represented about 81 percent of all students subjected to corporal punishment, but only account for about 50 percent of the total public school student population….Black students were 2.3 times more likely than white students to receive corporal punishment.”
He fails to note that these racial disparities do not distinguish corporal punishment from other forms of discipline, given that blacks are heavily represented in school suspensions and expulsions, at even higher rates relative to whites. For example, in California, blacks are suspended for misconduct at more than four times the white rate, and nearly 15 times the rate for Asians, who have the lowest suspension rate of all races. (See Tom Loveless, The 2017 Brown Center Report on American Education: How Well Are American Students Learning?, Brookings Institution, March 2017, pg. 25).
Suspensions and expulsions remain legal, despite the fact that blacks are disproportionately suspended and expelled, because blacks misbehave at higher rates than whites, meaning that their suspensions and expulsions are due to their behavior rather than racism. As education policy expert Michael Petrilli notes, “In 2015, high school students were asked if they had been in a fight on school property at any time in the past 12 months. African American students were 2.2 times more likely to say yes than white students — 11.4 percent to 5.2 percent.” A 2014 study in the Journal of Criminal Justice found that higher rates of “prior problem behavior” among black students — not racism — explained why black students are suspended at a higher rate. Thus, racial disparities in discipline don’t usually reflect racism. As the liberal Brookings Institution has noted, “Black students are also more likely to come from family backgrounds associated with school behavior problems; for example, children ages 12–17 that come from single-parent families are at least twice as likely to be suspended as children from two-parent families.” (2017 Brown Center Report on American Education, pp. 30-31).
Indeed, a requirement that all races be punished at the same rate — irrespective of their behavior — is an unconstitutional racial quota. For example, a federal appeals court struck down a provision that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code,” ruling that was a forbidden racial quota. As it noted, “Racial disciplinary quotas violate equity” by “either systematically overpunishing the innocent or systematically underpunishing the guilty,” and thus violate the requirement that “discipline be administered without regard to race or ethnicity.” (People Who Care v. Rockford Board of Education (1997)).
But under Democratic administrations, the Education Department takes the controversial position that a colorblind discipline policy can be racially discriminatory even absent any racist intent by a school, if it is not “necessary to meet an important educational goal,” or if “there is a comparably effective alternative policy that would meet the schools’ stated educational goal with less of a burden of adverse impact on the disproportionately affected racial group.” In 2016, the Education Department’s Office for Civil Rights (OCR) ruled the Lodi Unified School District had violated OCR’s regulations under Title VI of the Civil Rights Act, by punishing students with suspensions for minor offenses like tardiness and truancy, when “alternatives to suspension” would supposedly have sufficed, and there was supposedly no “educational justification” for using suspensions in response to such minor offenses. In OCR’s eyes, this disparity constituted unlawful racially “disparate impact” in violation of the Education Department’s Title VI disparate-impact regulation, 34 C.F.R. § 100.3(b)(2).
Secretary Cardona’s Dear Colleague Letter similarly argues that “The practice of corporal punishment is antithetical to … school safety,”and is linked to poorer “behavioral, and academic outcomes.” That expresses his opinion that corporal punishment is not necessary to meet an important educational goal. If the Office for Civil Rights were to take the same stance that corporal punishment is counterproductive, based on the fact that Secretary Cardona is their boss, that could easily result in OCR finding that corporal punishment has an unlawful racially “disparate impact” in violation of 34 C.F.R. § 100.3(b)(2).
That would be a big deal, affecting much of the country, because, as Secretary Cardona notes, “The following states expressly allow corporal punishment in schools: Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Wyoming.”
But that assumes that OCR has the authority to ban colorblind policies such as rules permitting corporal punishment just because they have a disparate impact on some minority groups. That assumption is probably not valid. OCR’s disparate impact regulation is itself probably invalid, as the Supreme Court hinted in its decision in Alexander v. Sandoval, 532 U.S. 275, 286 n.6 (2001). The Supreme Court ruled in that case that Title VI only bans “intentional discrimination,” not disparate impact, and it called the government’s defense of federal Title VI disparate regulations “strange” in footnote 6 of its ruling. As the Supreme Court explained, “We cannot help observing, however, how strange it is to say that disparate-impact regulations” are valid applications of Title VI, when Title VI “permits the very behavior that the regulations forbid…..’If, as five Members of the Court concluded in Bakke, the purpose of Title VI is to proscribe only purposeful discrimination … , regulations that would proscribe conduct by the recipient having only a discriminatory effect … do not simply “further” the purpose of Title VI; they go well beyond that purpose.'”
And even if OCR can validly ban practices like corporal punishment if they have a racially disparate impact on blacks and fail to advance an important educational goal (which is questionable), the Education Secretary is wrong if he is saying that corporal punishment never advances important educational goals. Such a one-size fits-all approach to discipline is wrong.
In time-sensitive settings, corporal punishment can be essential. As even the famously progressive American Psychological Association has conceded, “Corporal punishment is effective in getting children to comply immediately,” “Corporal punishment leads to more immediate compliant behavior in children,” and a meta-analysis of 88 studies shows that “There is general consensus that corporal punishment is effective in getting children to comply immediately.”
Corporal punishment certainly can have negative side effects, which is why it should not be the sole form of discipline used by a school system. But sometimes, it is a necessary last resort, such as when other forms of discipline have failed, or are impractical due to the setting. For example, on a field trip, when children are being herded from one place to another by a harried school teacher, the teacher may have to resort to quickly spanking a child to obtain immediate compliance, rather than using methods that take longer and only work in the classroom, like telling the child to sit in the corner for the remainder of the day.
As Britannica.com notes, there are some factors weighing in favor of the use of corporal punishment, such as that “Corporal punishment sets clear boundaries and motivates children to behave in school,” and “Corporal punishment is often chosen by students over suspension or detention.” Corporal punishment results in less learning loss for a student than a suspension, because the student who is given corporal punishment rather than a suspension is able to remain in school and have full access to an education and live instruction rather than being outside of school. Thus, corporal punishment advances an important educational interest.
Given that 16 states expressly permit corporal punishment, and most states permitted it at the time that Title VI was enacted in 1964, it is an unjustified encroachment on federalism for the Education Department to curb corporal punishment using the Title VI law, which is only designed to prevent “intentional discrimination” based on race, not punishments that are applied to offenders of all races. Federal law expressly warns the Education Department not to engage in federal “supervision” or “control” of school administration, but that is precisely what a federal ban on corporal punishment would be. (See 20 U.S.C. § 3403(a)).
As the Supreme Court has emphasized, “public education in our Nation is committed to the control of state and local authorities,’” even when student dismissals reflect “subjective” policy decisions. Schools must have flexibility in enforcing “disciplinary rules” in light of their “need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process.” Moreover, the Supreme Court says, schools should receive deference as to whether their policies promote a “valid educational purpose,” due to the “special characteristics of the school environment,” and these policies should not be overturned merely because others disagree about their “wisdom.”
So the fact that Secretary Cardona views corporal punishment as unwise is not a reason for the federal government to pressure states to outlaw it.
Even if disparate impact regulations were valid, school discipline issues like corporal punishment are not a good fit for a disparate impact claim. Disparate-impact claims require a showing of “robust causality,” meaning that the disparity was caused by a “specific practice” of the school, not just a “generalized policy that leads to such an impact” as one of “multiple factors.” Where the voluntary behavior of third parties — like misbehaving students — is a substantial factor in causing a disparity, robust causation is generally absent, even when school policies also contribute. For example, there is not a sufficient “causal link” between a school system’s student-assignment policy and racial imbalance in the public schools, when the school imbalance would not have occurred absent racially-skewed “housing patterns” beyond “the control” of school officials, even when the school gave effect to those housing patterns by assigning students to their neighborhood school. Similarly, if black students are given corporal punishment at a higher rate than whites only because they misbehave at a higher rate, no disparate impact should be found under a sensible reading of the Education Department’s disparate impact regulation, 34 C.F.R. 100.3(b)(2).
