Is Paddling a Student a Crime?

On the first day of elementary school each year, our teacher displayed her paddle, which was wooden with a short, solid handle. The paddle portion had holes drilled through its core.  Most school years, someone (always a boy, in my recollection), wound up being paddled. Times have changed for most students. But because a handful of schools in North Carolina still employ corporal punishment, questions continue to arise regarding when such punishment crosses the line between permissible school discipline and unlawful assault. 

Which schools paddle children?  Until 1991, local boards of education in North Carolina were prohibited from barring corporal punishment in public schools. Since that time, local boards of education have been authorized to decide whether to allow such punishment in their districts.  G.S. 115C-390.4.  Public school districts that permit corporal punishment must adopt policies that require:

• Corporal punishment to be administered outside the presence of other students;
• Only a teacher, principal or assistant principal be allowed administer corporal punishment;
• Another teacher, principal or assistant principal be present for the punishment;
• The witness be informed beforehand and in the student’s presence of the reason for the punishment;
• The school to notify the student’s parent that corporal punishment has been administered;
• The person who administered the punishment to provide the student’s parent with a written explanation of the reasons and the name of the witness;
• The school to maintain records of each time corporal punishment was used and why;
• That no excessive force, which includes force that results in injury to a child that requires medical attention beyond simple first aid, be used; and
• That corporal punishment not be administered on a student whose parent or guardian has stated in writing that corporal punishment may not be used on the student.

In addition, G.S. 115C-390.3 permits school personnel to use reasonable force to control behavior when necessary to correct students or maintain order.

According to this 2015 report to the General Assembly, public schools in five counties used corporal punishment in the 2013-14 fiscal year:  Robeson (67 uses), Macon (24 uses), Graham (22 uses), Swain (8 uses), and Onslow (1 use). Males were corporally punished five times more often than females. American Indians comprised the racial group most frequently subject to corporal punished. Corporal punishment was used most often on students in the fourth grade.

Private schools, of course, make their own policies.

When does paddling by a school official amount to criminal assault or child abuse?

Assault on a child under 12. While simple assault and simple assault and battery are Class 2 misdemeanors, an assault on a child under the age of 12 is a Class A1 misdemeanor. G.S. 14-33(c)(3).  The offense of assault is not defined by statute, but instead by common law rules.  State v. Roberts, 270 N.C. 655, 658 (1967).  The North Carolina Supreme Court has defined assault as “an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.” State v. Mitchell, 358 N.C. 63, 69-70 (2004) (internal citations omitted). Were there no exception to rule, every disciplinary paddling of a child (at school or home) would constitute assault.

Moderate punishment by school officials allowed. The state supreme court in State v. Pendergrass, 19 N.C. 365 (1837), reversed a schoolmaster’s conviction for assault and battery based on her whipping of a seven-year-old female student with a switch, leaving marks that lasted a few days. The Pendergrass court recognized the authority of schoolmasters and teachers to impose “moderate correction” in the form of corporal punishment. The court described school officials’ authority to administer such discipline as a delegation of the parental power to “train up and qualify their children [] for becoming useful and virtuous members of society.” Id. at 365-66.  The court distinguished moderate from immoderate punishment based upon the nature of the injury inflicted and the intention of the person administering the punishment.  As to injury, the court explained that “[a]ny punishment . . .  which may seriously endanger life, limbs or health, or shall disfigure the child, or cause any other permanent injury, may be pronounced in itself immoderate,” while “any correction, however severe, which produces temporary pain only, and no permanent ill, cannot be so pronounced, since it may have been necessary for the reformation of the child, and does not injuriously affect its future welfare.” Id. at 366. The court “laid down as a general rule, that teachers exceed the limits of their authority when they cause lasting mischief; but act within the limits of it, when they inflict temporary pain.” Id. The court further held that even moderate punishment is unlawful if the school official administering the punishment acted with “wickedness of purpose.” Id.

So what’s lasting mischief? Norms have certainly changed since the time Pendergrass was decided.  Nevertheless, its characterization of lasting mischief remains the controlling standard for determining when corporal punishment is moderate. The sort of paddling that I recall being threatened in my elementary years (3 licks with a wooden paddle), which (so I hear) inflicts fleeting pain and results in temporary marks or bruises, is unlikely to meet the “lasting mischief” threshold or to be deemed unreasonable in violation of G.S. 115C-390.3.  Cf. Baker v. Owen, 395 F. Supp. 294, 303 (M.D.N.C. 1975) (concluding that a teacher’s administering of “two licks” to a student’s  buttocks “with a wooden drawer divider a little longer and thicker than a foot-ruler,” which caused a stinging sensation and bruise marks which remained for several days did not constitute cruel and unusual punishment).  In addition, this type of paddling would not run afoul of the excessive force prohibition in G.S. 115C-390.4 as it would not require medical attention. Thus, this type of corporal punishment does not constitute assault on a child under 12.

What about child abuse? Any person providing care to or supervising a child under the age of 16 who intentionally inflicts physical injury upon the child commits child abuse, a Class A1 misdemeanor. G.S. 14-318.2. While there are no cases applying the Pendergrass rule to a prosecution for the current-day crime of child abuse, the state supreme court has applied the moderate punishment rule to charges that a child was battered by a parental figure. See Jessica Smith, North Carolina Crimes, A Guidebook on the Elements of Crime 194 (7^th ed. 2012). The court in State v. Alford, 68 N.C. 322 (1873) reversed a defendant’s conviction for battery that was based upon his “whipping” of his girlfriend’s son, who lived with the defendant and his girlfriend. The court noted that there was no evidence of malice; instead the boy was punished for misbehaving.  Furthermore, the court explained that no permanent injury was inflicted and no “improper instrument” was used. Thus, the court determined that the defendant was entitled to a verdict of not guilty. I would expect the same reasoning to foreclose the argument that moderate school discipline constitutes misdemeanor child abuse.

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