Ryan Park is a lawyer in Durham, N.C., and a former law clerk to Supreme Court Justices David Souter and Ruth Bader Ginsburg.
A few months ago, with a quiet vote by a local school board, nearly two centuries of corporal punishment in North Carolina public schools came to an end.
North Carolina law still allows schools to inflict “physical pain upon the body of a student,” but school boards have the final say. Just 12 years ago — when the legislature last voted to maintain corporal punishment statewide — about 70 percent of North Carolina’s 115 school districts allowed instructors to hit their students. Since that time, however, in a triumph of local activism, all of those districts have reversed course. Graham County was the last holdout. Yet when the end came, it was uncontroversial — the board voted unanimously to end the practice with little public debate. Now, a bipartisan group of legislators is seeking to change state law to ban it for good.
This milestone could have arrived decades ago, but in a far different setting. In 1977, the U.S. Supreme Court came within a single vote of declaring corporal punishment unconstitutional.
It did not, however, and paddling schoolchildren in Graham County continued for 40 more years.
Corporal punishment in public schools remains formally legal in 19 states; in at least three of them — Mississippi, Alabama and Arkansas — a majority of schools still report using it. But in most of the United States, evolving social mores have led to its de facto abolition.
With corporal punishment rare and getting rarer, now might seem the natural time for the Supreme Court to consider settling the issue as a matter of constitutional law.
As U.S. Appeals Court Judge Frank Easterbrook has explained, with certain exceptions, the Supreme Court traditionally protects civil liberties by stamping out “outliers” — “practices that have already disappeared or dwindled among the states.” Nowhere is this insight more apt than on matters of punishment; the Eighth Amendment, after all, forbids punishments that are cruel and unusual.
The Supreme Court has considered the constitutionality of corporal punishment only once. In that 1977 case, Ingraham v. Wright, the court upheld the practice by a 5-to-4 vote, concluding that the Eighth Amendment applies only to criminal punishments — even though no such limit appears in the amendment’s text. But the court also premised its ruling on corporal punishment’s “contemporary approval.” At the time, the practice was legal in 48 states, and the court insisted that it could “discern no trend toward its elimination.”
A trend soon materialized. Since Ingraham, 29 states and the District of Columbia have passed laws banning corporal punishment in public schools. Even where it remains legal, the practice has seen a gradual, locally driven decline. For example, in nine states where corporal punishment is allowed, fewer than 5 percent of schools report using it.
In many ways, this democratic progress shows the wisdom of the Supreme Court’s restraint: Wary of deciding an issue on which “public opinion is sharply divided,” the court left corporal punishment to “the normal processes of community debate and legislative action.”
Into the vacuum left by the court’s inaction marched innumerable citizens’ campaigns, many led by parents determined to spare their children from the schoolhouse rod. This activism reflects, and has helped to bring about, broad cultural shifts on child-rearing and education. To most Americans, the idea of allowing teachers to hit students now seems unthinkable. Thus, it seems unlikely that the practice will ever again become widespread, regardless of what the Supreme Court thinks.
To be sure, it would be dangerous to overlearn the lessons of Ingraham. On many issues, judicial intervention is necessary both to secure fundamental rights and to bolster public support for those rights. For example, following the Supreme Court’s 2015 decision to establish marriage equality as a matter of constitutional law, public support for same-sex marriage has steadily risen.
Meanwhile, thanks to Ingraham, corporal punishment remains a stain on U.S. public education. In the 2015-2016 school year, nearly 100,000 schoolchildren were legally struck by their instructors, sometimes for offenses as minor as arriving late to class or violating dress codes. A disproportionate number of children who meet this fate, moreover, are black or have disabilities.
But these heartbreaking figures shouldn’t obscure the remarkable progress that civic engagement has achieved. Just a decade earlier, corporal punishment was inflicted on at least 223,000 children nationwide. And that figure represented a sharp drop from the Ingraham era, when well over 1 million children were hit in schools annually.
Thus, there’s a silver lining, as there often can be, to Supreme Court inaction: It reminds us to focus on democracy. With the courts silent on corporal punishment, child advocates and parents across the nation can continue to focus their energies on local advocacy and engagement. On the Graham County school boards all across the nation, not just the marbled halls of Washington. Granted, change achieved through direct, local democracy — through parent-teacher association meetings, school boards and state legislatures — is difficult and slow. But as the story of corporal punishment’s decline shows, it can sometimes be nearly as effective, and perhaps more durable, than a courtroom victory.