The question, then, is not whether the Due Process Clause applies, but when it applies. I believe that Judge Marcus has set forth helpful factors for deciding whether corporal punishment complies with the Due Process Clause. As a personal matter, I feel any corporal punishment of students is inappropriate. As a legal matter, though, Judge Marcus' analysis seems to provide helpful guidance to school officials to determine when corporal punishment is lawful. Remember, the 11th Circuit's standards represent minimum criteria for evaluating the propriety of corporal punishment under the U.S. Constitution.
State laws can be more restrictive.
Also, state laws might establish different criteria from federal law for determining whether and when school districts, school officials, and school employees may be sued for personal injuries to students. School officials should consult their board attorneys to determine the laws that apply in their particular states and to make sure that their board policies comply with federal and state law. And school officials should make sure that employees clearly understand the laws and board policy governing corporal punishment. Benjamin Dowling-Sendor, an authority on school law, is an assistant appellate defender of North Carolina in Durham. American School Board Journal is an editorially independent publication of the National School Boards Association.