|Ingraham v. Wright
525 F.2d 909, affirmed.
[ Powell ]
[ White ]
[ Stevens ]
Ingraham v. Wright
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
MR. JUSTICE WHITE, with whom MR JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE STEVENS join, dissenting.
Today the Court holds that corporal punishment in public schools, no matter how severe, can never be the subject of the protections afforded by the Eighth Amendment. It also holds [p684] that students in the public school systems are not constitutionally entitled to a hearing of any sort before beatings can be inflicted on them. Because I believe that these holdings are inconsistent with the prior decisions of this Court and are contrary to a reasoned analysis of the constitutional provisions involved, I respectfully dissent.
The Eighth Amendment places a flat prohibition against the infliction of "cruel and unusual punishments." This reflects a societal judgment that there are some punishments that are so barbaric and inhumane that we will not permit them to be imposed on anyone, no matter how opprobrious the offense. See Robinson v. California, 370 U.S. 660, 676 (1962) (Douglas, J., concurring). If there are some punishments that are so barbaric that they may not be imposed for the commission of crimes, designated by our social system as the most thoroughly reprehensible acts an individual can commit, then, a fortiori, similar punishments may not be imposed on persons for less culpable acts, such as breaches of school discipline. Thus, if it is constitutionally impermissible to cut off someone's ear for the commission of murder, it must be unconstitutional to cut off a child's ear for being late to class. [n1] Although there were no ears cut off in this case, the [p685] record reveals beatings so severe that, if they were inflicted on a hardened criminal for the commission of a serious crime, they might not pass constitutional muster.
Nevertheless, the majority holds that the Eighth Amendment "was designed to protect [only] those convicted of crimes," ante at 664, relying on a vague and inconclusive recitation of the history of the Amendment. Yet the constitutional prohibition is against cruel and unusual punishments; nowhere is that prohibition limited or modified by the language of the Constitution. Certainly, the fact that the Framers did not choose to insert the word "criminal" into the language of the Eighth Amendment is strong evidence that the Amendment was designed to prohibit all inhumane or barbaric punishments, no matter what the nature of the offense for which the punishment is imposed.
No one can deny that spanking of school children is "punishment" under any reasonable reading of the word, for the similarities between spanking in public schools and other forms of punishment are too obvious to ignore. Like other forms of punishment, spanking of school children involves an institutionalized response to the violation of some official rule or regulation proscribing certain conduct and is imposed [p686] for the purpose of rehabilitating the offender, deterring the offender and others like him from committing the violation in the future, and inflicting some measure of social retribution for the harm that has been done.
We are fortunate that, in our society, punishments that are severe enough to raise a doubt as to their constitutional validity are ordinarily not imposed without first affording the accused the full panoply of procedural safeguards provided by the criminal process. [n2] The effect has been that
every decision of this Court considering whether a punishment is "cruel and unusual" within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment.
Ante at 666. The Court would have us believe from this fact that there is a recognized distinction between criminal and noncriminal punishment for purposes of the Eighth Amendment. This is plainly wrong. "[E]ven a clear legislative classification of a statute as ‘non-penal' would not alter the fundamental nature of a plainly penal statute." Trop v. Dulles, 356 U.S. 86, 95 (1958) (plurality opinion). The relevant inquiry is not whether the offense for which a punishment is inflicted has been labeled as criminal, but whether the purpose of the deprivation is among those ordinarily associated [p687] with punishment, such as retribution, rehabilitation, or deterrence. [n3] Id. at 96. Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)
If this purposive approach were followed in the present case, it would be clear that spanking in the Florida public schools is punishment within the meaning of the Eighth Amendment. The District Court found that
[c]orporal punishment is one of a variety of measures employed in the school system for the correction of pupil behavior and the preservation of order.
App 146. Behavior correction and [p688] preservation of order are purposes ordinarily associated with punishment.
Without even mentioning the purposive analysis applied in the prior decisions of this Court, the majority adopts a rule that turns on the label given to the offense for which the punishment is inflicted. Thus, the record in this case reveals that one student at Drew Junior High School received 50 licks with a paddle for allegedly making an obscene telephone call. Brief for Petitioners 13. The majority holds that the Eighth Amendment does not prohibit such punishment, since it was only inflicted for a breach of school discipline. However, that same conduct is punishable as a misdemeanor under Florida law, Fla.Stat.Ann. § 365.18 (Supp. 177), and there can be little doubt that, if that same "punishment" had been inflicted by an officer of the state courts for violation of § 365.16, it would have had to satisfy the requirements of the Eighth Amendment.
In fact, as the Court recognizes, the Eighth Amendment has never been confined to criminal punishments. [n4] Nevertheless, the majority adheres to its view that any protections afforded by the Eighth Amendment must have something to do with [p689] criminals, and it would therefore confine any exceptions to its general rule that only criminal punishments are covered by the Eighth Amendment to abuses inflicted on prisoners. Thus, if a prisoner is beaten mercilessly for a breach of discipline, he is entitled to the protection of the Eighth Amendment, while a school child who commits the same breach of discipline and is similarly beaten is simply not covered.
The purported explanation of this anomaly is the assertion that school children have no need for the Eighth Amendment. We are told that schools are open institutions, subject to constant public scrutiny; that school children have adequate remedies under state law; [n5] and that prisoners suffer the social stigma of being labeled as criminals. How any of these policy considerations got into the Constitution is difficult to discern, for the Court has never considered any of these factors in determining the scope of the Eighth Amendment. [n6] [p690]
The essence of the majority's argument is that school children do not need Eighth Amendment protection, because corporal punishment is less subject to abuse in the public schools than it is in the prison system. [n7] However, it cannot be reasonably suggested that, just because cruel and unusual punishments may occur less frequently under public scrutiny, they will not occur at all. The mere fact that a public flogging or a public execution would be available for all to see would not render the punishment constitutional if it were otherwise impermissible. Similarly, the majority would not suggest that a prisoner who is placed in a minimum security prison and permitted to go home to his family on the weekends should be any less entitled to Eighth Amendment protections than his counterpart in a maximum security prison. In short, if a punishment is so barbaric and inhumane that it goes beyond the tolerance of a civilized society, its openness to public scrutiny should have nothing to do with its constitutional validity.
Nor is it an adequate answer that school children may have other state and constitutional remedies available to them. Even assuming that the remedies available to public school students are adequate under Florida law, [n8] the availability of state remedies has never been determinative of the coverage or of the protections afforded by the Eighth Amendment. The reason is obvious. The fact that a person may have a [p691] state law cause of action against a public official who tortures him with a thumbscrew for the commission of an antisocial act has nothing to do with the fact that such official conduct is cruel and unusual punishment prohibited by the Eighth Amendment. Indeed, the majority's view was implicitly rejected this Term in Estelle v. Gamble, 429 U.S. 97 (1976), when the Court held that failure to provide for the medical needs of prisoners could constitute cruel and unusual punishment even though a medical malpractice remedy in tort was available to prisoners under state law. Id. at 107 n. 15.
By holding that the Eighth Amendment protects only criminals, the majority adopts the view that one is entitled to the protections afforded by the Eighth Amendment only if he is punished for acts that are sufficiently opprobrious for society to make them "criminal." This is a curious holding in view of the fact that the more culpable the offender, the more likely it is that the punishment will not be disproportionate to the offense, and consequently, the less likely it is that the punishment will be cruel and unusual. [n9] Conversely, a public school student who is spanked for a mere breach of discipline may sometimes have a strong argument that the punishment does not fit the offense, depending upon the severity of the beating, and therefore that it is cruel and unusual. Yet the majority would afford the student no protection no matter how inhumane and barbaric the punishment inflicted on him might be.
The issue presented in this phase of the case is limited to whether corporal punishment in public schools can ever be prohibited by the Eighth Amendment. I am therefore not [p692] suggesting that spanking in the public schools is, in every instance, prohibited by the Eighth Amendment. My own view is that it is not. I only take issue with the extreme view of the majority that corporal punishment in public schools, no matter how barbaric, inhumane, or severe, is never limited by the Eighth Amendment. Where corporal punishment becomes so severe as to be unacceptable in a civilized society, I can see no reason that it should become any more acceptable just because it is inflicted on children in the public schools.
The majority concedes that corporal punishment in the public schools implicates an interest protected by the Due Process Clause -- the liberty interest of the student to be free from "bodily restraint and punishment" involving "appreciable physical pain" inflicted by persons acting under color of state law. Ante at 674. The question remaining, as the majority recognizes, is what process is due.
The reason that the Constitution requires a State to provide "due process of law" when it punishes an individual for misconduct is to protect the individual from erroneous or mistaken punishment that the State would not have inflicted had it found the facts in a more reliable way. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 335, 344 (1976). In Goss v. Lopez, 419 U.S. 565 (1975), the Court applied this principle to the school disciplinary process, holding that a student must be given an informal opportunity to be heard before he is finally suspended from public school.
Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others, and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference [p693] with the educational process.
Id. at 580. (Emphasis added.) To guard against this risk of punishing an innocent child, the Due Process Clause requires not an "elaborate hearing" before a neutral party, but simply "an informal give-and-take between student and disciplinarian" which gives the student "an opportunity to explain his version of the facts." Id. at 580, 582, 584.
The Court now holds that these "rudimentary precautions against unfair or mistaken findings of misconduct," id. at 581, are not required if the student is punished with "appreciable physical pain," rather than with a suspension, even though both punishments deprive the student of a constitutionally protected interest. Although the respondent school authorities provide absolutely no process to the student before the punishment is finally inflicted, the majority concludes that the student is nonetheless given due process because he can later sue the teacher and recover damages if the punishment was "excessive."
This tort action is utterly inadequate to protect against erroneous infliction of punishment for two reasons. [n10] First, under Florida law, a student punished for an act he did not commit cannot recover damages from a teacher "proceeding [p694] in utmost good faith . . . on the reports and advice of others," supra at 692; the student has no remedy at all for punishment imposed on the basis of mistaken facts, at least as long as the punishment was reasonable from the point of view of the disciplinarian, uninformed by any prior hearing. [n11] The "traditional [p695] common law remedies" on which the majority relies, ante at 672, thus do nothing to protect the student from the danger that concerned the Court in Goss -- the risk of reasonable, good faith mistake in the school disciplinary process.
Second, and more important, even if the student could sue for good faith error in the infliction of punishment, the lawsuit occurs after the punishment has been finally imposed. The infliction of physical pain is final and irreparable; it cannot be undone in a subsequent proceeding. There is every reason to require, as the Court did in Goss, a few minutes of "informal give-and-take between student and disciplinarian" [p696] as a "meaningful hedge" against the erroneous infliction of irreparable injury. 419 U.S. at 583-584. [n12]
The majority's conclusion that a damages remedy for excessive corporal punishment affords adequate process rests on the novel theory that the State may punish an individual without giving him any opportunity to present his side of the story, as long as he can later recover damages from a state official if he is innocent. The logic of this theory would permit a State that punished speeding with a one-day jail sentence to make a driver serve his sentence first without a trial and then sue to recover damages for wrongful imprisonment. [n13] Similarly, the State could finally take away a prisoner's good-time credits for alleged disciplinary infractions and require him to bring a damages suit after he was eventually released. There is no authority for this theory, nor does the majority purport to find any, [n14] in the procedural due process [p697] decisions of this Court. Those cases have
consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests . . . , [and that] a person's liberty is equally protected. . . .
Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974). (Emphasis added.)
The majority attempts to support its novel theory by drawing an analogy to warrantless arrests on probable cause, which the Court has held reasonable under the Fourth Amendment. United States v. Watson, 423 U.S. 411 (1976). This analogy fails for two reasons. First, the particular requirements of the Fourth Amendment, rooted in the "ancient common law rule[s]" regulating police practices, id. at 418, must be understood in the context of the criminal justice system for which that Amendment was explicitly tailored. Thus, in Gerstein v. Pugh, 420 U.S. 103 (1975), the Court, speaking through MR. JUSTICE POWELL, rejected the argument that procedural protections required in Goss and other due process [p698] cases should be afforded to a criminal suspect arrested without a warrant.
The Fourth Amendment was tailored explicitly for the criminal justice system, and its balance between individual and public interests always has been thought to define the "process that is due" for seizures of person or property in criminal cases, including the detention of suspects pending trial. . . . Moreover, the Fourth Amendment probable cause determination is, in fact, only the first stage of an elaborate system, unique in jurisprudence, designed to safeguard the rights of those accused of criminal conduct. The relatively simple civil procedures (e.g., prior interview with school principal before suspension) presented in the [procedural due process] cases cited in the concurring opinion are inapposite and irrelevant in the wholly different context of the criminal justice system.
Id. at 125 n. 27. (Emphasis in last sentence added.) While a case dealing with warrantless arrests is perhaps not altogether "inapposite and irrelevant in the wholly different context" of the school disciplinary process, such a case is far weaker authority than procedural due process cases such as Goss v. Lopez, 419 U.S. 565 (1975), that deal with deprivations of liberty outside the criminal context.
Second, contrary to the majority's suggestion, ante at 680 n. 48, the reason that the Court has upheld warrantless arrests on probable cause is not because the police officer's assessment of the facts "may be subjected to subsequent judicial scrutiny in a civil action against the law enforcement officer or in a suppression hearing. . . ." The reason that the Court has upheld arrests without warrants is that they are the "first stage of an elaborate system" of procedural protections, Gerstein v. Pugh, supra at 125 n. 27, and that the State is not free to continue the deprivation beyond this first stage without procedures. The Constitution requires the State to provide [p699] "a fair and reliable determination of probable cause" by a judicial officer prior to the imposition of "any significant pretrial restraint of liberty" other than "a brief period of detention to take the administrative steps incident to [a warrantless] arrest." Id. at 114, 125. (Footnote omitted; emphasis added.) This "practical compromise" is made necessary because
requiring a magistrate's review of the factual justification prior to any arrest . . . would constitute an intolerable handicap for legitimate law enforcement,
id. at 113; but it is the probable cause determination prior to any significant period of pretrial incarceration, rather than a damages action or suppression hearing, that affords the suspect due process.
There is, in short, no basis in logic or authority for the majority's suggestion that an action to recover damages for excessive corporal punishment "afford[s] substantially greater protection to the child than the informal conference mandated by Goss." [n15] The majority purports to follow the settled principle that what process is due depends on
"the risk of an erroneous deprivation of [the protected] interest . . . and the probable value, if any, of additional or substitute procedural safeguards;" [n16]
it recognizes, as did Goss, the risk of error in the school disciplinary process [n17] and concedes that "the child has a strong interest in procedural safeguards that minimize the risk of wrongful punishment . . . ," ante at 676; [p700] but it somehow concludes that this risk is adequately reduced by a damages remedy that never has been recognized by a Florida court, that leaves unprotected the innocent student punished by mistake, and that allows the State to punish first and hear the student's version of events later. I cannot agree.
The majority emphasizes, as did the dissenters in Goss, that even the "rudimentary precautions" required by that decision would impose some burden on the school disciplinary process. But those costs are no greater if the student is paddled, rather than suspended; the risk of error in the punishment is no smaller; and the fear of "a significant intrusion" into the disciplinary process, ante at 682 (cf. Goss, supra at 585 (POWELL, J., dissenting)), is just as exaggerated. The disciplinarian need only take a few minutes to give the student
notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.
419 U.S. at 581. In this context, the Constitution requires, "if anything, less than a fair-minded school principal would impose upon himself" in order to avoid injustice. [n18] Id. at 583.
I would reverse the judgment below.
1. There is little reason to fear that, if the Eighth Amendment is held to apply at all to corporal punishment of school children, all paddlings, however moderate, would be prohibited. Jackson v. Bishop, 404 F.2d 571 (CA8 1968), held that any paddling or flogging of prisoners, convicted of crime and serving prison terms, violated the cruel and unusual punishment ban of the Eighth Amendment. But aside from the fact that Bishop has never been embraced by this Court, the theory of that case was not that bodily punishments are intrinsically barbaric or excessively severe, but that paddling of prisoners is "degrading to the punisher and to the punished alike." Id. at 580. That approach may be acceptable in the criminal justice system, but it has little if any relevance to corporal punishment in the schools, for it can hardly be said that the use of moderate paddlings in the discipline of children is inconsistent with the country's evolving standards of decency.
On the other hand, when punishment involves a cruel, severe beating or chopping off an ear, something more than merely the dignity of the individual is involved. Whenever a given criminal punishment is "cruel and unusual" because it is inhumane or barbaric, I can think of no reason why it would be any less inhumane or barbaric when inflicted on a school child, as punishment for classroom misconduct.
The issue in this case is whether spankings inflicted on public school children for breaking school rules is "punishment," not whether such punishment is "cruel and unusual." If the Eighth Amendment does not bar moderate spanking in public schools, it is because moderate spanking is not "cruel and unusual," not because it is not "punishment" as the majority suggests.
2. By no means is it suggested that just because spanking of school children is "punishment" within the meaning of the Cruel and Unusual Punishments Clause, the school disciplinary process is in any way "criminal," and therefore subject to the full panoply of criminal procedural guarantees. See Part II, infra. Ordinarily, the conduct for which school children are punished is not sufficiently opprobrious to be called "criminal" in our society, and even violations of school disciplinary rules that might also constitute a crime, see infra at 688, are not subject to the criminal process. See Baxter v. Palmigiano, 425 U.S. 308 (1976), where the Court held that persons who violate prison disciplinary rules are not entitled to the full panoply of criminal procedural safeguards, even if the rule violation might also constitute a crime.
3. The majority cites Trop as one of the cases that "dealt with a criminal punishment," but neglects to follow the analysis mandated by that decision. In Trop, the petitioner was convicted of desertion by a military court-martial and sentenced to three years at hard labor, forfeiture of all pay and allowances, and a dishonorable discharge. After he was punished for the offense he committed, petitioner's application for a passport was turned down. Petitioner was told that he had been deprived of the "rights of citizenship" under § 401(g) of the Nationality Act of 1940 because he had been dishonorably discharged from the Armed Forces. The plurality took the view that denationalization in this context was cruel and unusual punishment prohibited by the Eighth Amendment.
The majority would have us believe that the determinative factor in Trop was that the petitioner had been convicted of desertion; yet there is no suggestion in Trop that the disposition of the military court-martial had anything to do with the decision in that case. Instead, while recognizing that the Eighth Amendment extends only to punishments that are penal in nature, the plurality adopted a purposive approach for determining when punishment is penal.
In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment -- that is, to reprimand the wrongdoer, to deter others, etc. -- it has been considered penal. But a statute has been considered nonpenal if it imposes a disability not to punish, but to accomplish some other legitimate governmental purpose.
356 U.S. at 96 (footnotes omitted). Although the quoted passage is taken from the plurality opinion of Mr Chief Justice Warren, joined by three other Justices, MR. JUSTICE BRENNAN, in a concurring opinion, adopted a similar approach in concluding that § 401(g) was beyond the power of Congress to enact.
4. Ante at 669. In Estelle v. Gamble, 429 U.S. 97 (1976), a case decided this Term, the Court held that "deliberate indifference to the medical needs of prisoners" by prison officials constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Such deliberate indifference to a prisoner's medical needs clearly is not punishment inflicted for the commission of a crime; it is merely misconduct by a prison official. Similarly, the Eighth Circuit has held that whipping a prisoner with a strap in order to maintain discipline is prohibited by the Eighth Amendment. Jackson v. Bishop, 404 F.2d 571 (1968) (Blackmun, J.). See also Knecht v. Gillman, 488 F.2d 1136, 1139-1140 (CA8 1973) (injection of vomit-inducing drugs as part of aversion therapy held to be cruel and unusual); Vann v. Scott, 467 F.2d 1235, 1241241 (CA7 1972) (Stevens, J.) (Eighth Amendment protects runaway children against cruel and inhumane treatment, regardless of whether such treatment is labeled "rehabilitation" or "punishment").
5. By finding that bodily punishment invades a constitutionally protected liberty interest within the meaning of the Due Process Clause, the majority suggests that the Clause might also afford a remedy for excessive spanking independently of the Eighth Amendment. If this were the case, the Court's present thesis would have little practical significance. If, rather than holding that the Due Process Clause affords a remedy by way of the express commands of the Eighth Amendment, the majority would recognize a cause of action under 42 U.S.C. § 1983 for a deprivation of "liberty" flowing from an excessive paddling, the Court's opinion is merely a lengthy word of advice with respect to the drafting of civil complaints.
Petitioners in this case did raise the substantive due process issue in their petition for certiorari, ante at 659 n. 12, but consideration of that question was foreclosed by our limited grant of certiorari. If it is probable that school children would be entitled to protection under some theory of substantive due process, the Court should not now affirm the judgment below, but should amend the grant of certiorari and set this case for reargument.
6. In support of its policy considerations, the only cases from this Court cited by the majority are Morrissey v. Brewer, 408 U.S. 471 (1972), and Meachum v. Fano, 427 U.S. 215 (1976), both cases involving prisoners' rights to procedural due process.
7. There is no evidence in the record that corporal punishment has been abused in the prison systems more often than in the public schools. Indeed, corporal punishment is seldom authorized in state prisons. See Jackson v. Bishop, supra at 580, where MR. JUSTICE (then Judge) BLACKMUN noted: "[O]nly two states still permit the use of the strap [in prisons]. Thus almost uniformly has it been abolished." By relying on its own view of the nature of these two public institutions, without any evidence being heard on the question below, the majority today predicates a constitutional principle on mere armchair speculation.
8. There is some doubt that the state law remedies available to public school children are adequate. See n. 11, infra.
9. For a penalty to be consistent with the Eighth Amendment "the punishment must not be grossly out of proportion to the severity of the crime." Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion of STEWART, POWELL, and STEVENS, JJ.).
10. Here, as in Goss v. Lopez, 419 U.S. 565, 580-581, n. 9 (1975), the record suggests that there may be a substantial risk of error in the discipline administered by respondent school authorities. Respondents concede that some of the petitioners who were punished "denied misconduct," and that, "in some cases, the punishments may have been mistaken. . . ." Brief for Respondents 60-61. The Court of Appeals panel below noted numerous instances of students punished despite claims of innocence, 498 F.2d 248, 256-258 (CA5 1974), and was "particularly disturbed by the testimony that whole classes of students were corporally punished for the misconduct of a few." Id. at 268 n. 36. To the extent that the majority focuses on the incidence of and remedies for unduly severe punishments, it fails to address petitioners' claim that procedural safeguards are required to reduce the risk of punishments that are simply mistaken.
11. The majority's assurances to the contrary, it is unclear to me whether and to what extent Florida law provides a damages action against school officials for excessive corporal punishment. Giving the majority the benefit of every doubt, I think it is fair to say that the most a student punished on the basis of mistaken allegations of misconduct can hope for in Florida is a recovery for unreasonable or bad faith error. But I strongly suspect that even this remedy is not available.
Although the majority does not cite a single case decided under Florida law that recognizes a student's right to sue a school official to recover damages for excessive punishment, I am willing to assume that such a tort action does exist in Florida. I nevertheless have serious doubts about whether it would ever provide a recovery to a student simply because he was punished for an offense he did not commit. All the cases in other jurisdictions cited by the majority, ante at 663 n. 28, involved allegations of punishment disproportionate to the misconduct with which the student was charged; none of the decisions even suggest that a student could recover by showing that the teacher incorrectly imposed punishment for something the student had not done. The majority appears to agree that the damages remedy is available only in cases of punishment unreasonable in light of the misconduct charged. It states:
In those cases where severe punishment is contemplated, the available civil and criminal sanctions for abuse . . . afford significant protection against unjustified corporal punishment.
Ante at 678. (Emphasis added.)
Even if the common law remedy for excessive punishment extends to punishment that is "excessive" only in the sense that it is imposed on the basis of mistaken facts, the school authorities are still protected from personal liability by common law immunity. (They are protected by statutory immunity for liability for enforcing disciplinary rules "[e]xcept in the case of excessive force or cruel and unusual punishment." Fla.Stat.Ann. § 232.275 (1976).) At a minimum, this immunity would protect school officials from damages liability for reasonable mistakes made in good faith.
Although there have been differing emphases and formulations of the common law immunity of public school officials in cases of student expulsion or suspension, state courts have generally recognized that such officers should be protected from tort liability under state law for all good faith, nonmalicious action taken to fulfill their official duties.
Wood v. Strickland, 420 U.S. 308, 318 (1975) (adopting this rule for § 1983 suits involving school discipline) (footnote omitted); see id. at 318 n. 9 (citing state cases). Florida has applied this rule to a police officer's determination of probable cause to arrest; the officer is not liable in damages for an arrest not based on probable cause if the officer reasonably believed that probable cause existed. Miami v. Albro, 120 So.2d 23, 26 (Fla.Dist.Ct.App. 1960); cf. Middleton v. Fort Walton Beach, 113 So.2d 431 (Fla.Dist.Ct.App. 1959) (police officer would be personally liable for intentional tort of making an arrest pursuant to warrant he knew to be void); Wilson v. O'Neal, 118 So.2d 101 (Fla.Dist.Ct.App. 1960) (law enforcement officer not liable in damages for obtaining an arrest warrant on the basis of an incorrect identification). There is every reason to think that the Florida courts would apply a similar immunity standard in a hypothetical damages suit against a school disciplinarian.
A final limitation on the student's damages remedy under Florida law is that the student can recover only from the personal assets of the official; the school board's treasury is absolutely protected by sovereign immunity from damages for the torts of its agents. Buck v. McLean, 115 So.2d 764 (Fla.Dist.Ct.App. 1959). A teacher's limited resources may deter the jury from awarding, or prevent the student from collecting, the full amount of damages to which he is entitled. Cf. Bonner v. Coughlin, 517 F.2d 1311, 1319 n. 23 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert pending, No. 76-6204 (state law remedy affords due process where no sovereign or official immunity bars tort suit for negligence by prison guard).
12. Cf. G. M. Leasing Corp. v. United States, 429 U.S. 338, 351-359 (1977). The Court there held that, in levying on a taxpayer's assets pursuant to a jeopardy assessment, revenue agents must obtain a warrant before searching the taxpayer's office, but not before seizing his property in a manner that involves no invasion of privacy. G. M. Leasing thus reflects the principle that the case for advance procedural safeguards (such as a magistrate's determination of probable cause) is more compelling when the Government finally inflicts an injury that cannot be repaired in a subsequent judicial proceeding (invasion of privacy) than when it inflicts a temporary injury which can be undone (seizure of property). The infliction of bodily punishment, like the invasion of privacy, presents this most compelling case for advance procedural safeguards
13. To the extent that the majority attempts to find "a relevant analogy in the criminal law" -- warrantless arrests on probable cause -- to its holding here, ante at 679-680 (and see infra at 697-699), it has chosen the wrong analogy. If the majority forthrightly applied its present due process analysis to the area of criminal prosecutions, the police officer not only could arrest a suspect without a warrant, but also could convict the suspect without a trial and sentence him to a short jail term. The accused would get his due process in a tort suit for false imprisonment.
14. For the proposition that the need for a prior hearing is "significantly less compelling" where the State has preserved "common law remedies," ante at 679, 678, the majority cites only one case, Bonner v. Coughlin, supra, dismissing an allegation by a prisoner that prison guards acting under color of state law had deprived him of property without due process of law by negligently failing to close the door of his cell after a search, with the foreseeable consequence that his trial transcript was stolen. The panel held that the right to recover under state law for the negligence of state employees provided the prisoner with due process of law. The decision is distinguishable from the instant case on two grounds. First, recovery was not barred by sovereign or official immunity, and the state remedy ensured that the prisoner would be "made whole for any loss of property." 517 F.2d at 1319, and n. 23. Cf. Regional Rail Reorganization Act Cases, 419 U.S. 102, 156 (1974). The point here, of course, is that the student cannot be made whole for the infliction of wrongful punishment. Second, the State cannot hold a pre-deprivation hearing where it does not intend to inflict the deprivation; the best it can do to protect the individual from an unauthorized and inadvertent act is to provide a damages remedy. 517 F.2d at 1319 n. 25. Here, the deprivation is intentional, and a prior hearing altogether feasible.
15. Ante at 678 n. 46.
16. Ante at 675, quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
17. Ante at 676, quoting Goss, 419 U.S. at 579-580. Elsewhere in its opinion the majority asserts that the risk of error is "typically insignificant" because "paddlings are usually inflicted in response to conduct directly observed by teachers in their presence." Ante at 677-678. But it cites no finding or evidence in the record for this assertion, and there is no such restriction in the statute or regulations authorizing corporal punishment. See ante at 655 n. 6, 656 n. 7. Indeed, the panel below noted specific instances in which students were punished by an assistant to the principal who was not present when the alleged offenses were committed. 498 F.2d at 257, 259.
18. My view here expressed that the minimal procedures of Goss are required for any corporal punishment implicating the student's liberty interest is, of course, not meant to imply that this minimum would be constitutionally sufficient no matter how severe the punishment inflicted. The Court made this reservation explicit in Goss by suggesting that more elaborate procedures such as witnesses, counsel, and cross-examination might well be required for suspensions longer than the 10-day maximum involved in that case. 419 U.S. at 583-584. A similar caveat is appropriate here.