X. International Human Rights Law Protecting Students with Disabilities

Corporal punishment violates human rights to freedom from cruel, inhuman, and degrading treatment or punishment, and freedom from physical violence. In many instances, it violates the prohibition on discrimination and impinges on children's right to education. Corporal punishment is also contrary to respect for human dignity, a deep-seated guiding principle of human rights law enshrined in the Universal Declaration of Human Rights. Numerous human rights treaty bodies, including the United Nations Human Rights Committee, the UN Committee against Torture, and the UN Committee on the Rights of the Child have spoken out against corporal punishment in schools.[231]

Corporal punishment against students with disabilities violates additional rights to education and non-discrimination, in addition to the general principles articulated above. The US has recently signed the UN Convention on the Rights of Persons with Disabilities (CRPD), and is therefore obliged to adhere to the object and purpose of the treaty.[232] The CRPD, which entered into force in May 2008, provides for the right to an inclusive education, protects people with disabilities from violence and abuse, and prohibits discrimination on the basis of disability. In signing the CRPD, President Obama stated that the treaty "reaffirms the inherent dignity and worth and independence of all persons with disabilities[.]"[233] Corporal punishment, when applied to students with disabilities, violates these rights and denies these students the education to which they are entitled.

International Human Rights Law

With a handful of exceptions, children have the same human rights as adults. In addition, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection," and governments and governmental institutions such as schools have additional responsibilities to protect children.[234]

Children with disabilities are doubly vulnerable, and thus entitled to special care.[235] The UN Committee on the Rights of the Child has recognized that children with disabilities are more vulnerable to violence, abuse, and neglect in all settings, including schools.[236] Article 7 of the CRPD mandates that states party are to take all necessary measures to ensure children with disabilities' full enjoyment "of all human rights and fundamental freedoms on an equal basis with other children."[237]

Freedom from Cruel, Inhuman, or Degrading Treatment or Punishment

Children with disabilities are protected from corporal punishment by numerous provisions prohibiting cruel, inhuman, and degrading treatment. For instance, article 15 of the UN Convention on the Rights of Persons with Disabilities requires states party to take "all effective legislative, administrative, judicial, or other measures" to protect persons with disabilities from being subjected to such treatment.[238]The United States has signed and ratified the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention against Torture) and the International Covenant on Civil and Political Rights (ICCPR). Each of these treaties prohibits the use of cruel, inhuman, or degrading treatment or punishment.[239]

International human rights bodies have repeatedly emphasized that corporal punishment is incompatible with these provisions. For instance, the Human Rights Committee (HRC), which offers the authoritative interpretation of the ICCPR, emphasizes that the prohibition on the use of cruel, inhuman, or degrading treatment or punishment "must extend to corporal punishment, including excessive chastisement ordered ... as an educative or disciplinary measure."[240] Manfred Nowak, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, observes:

Since corporal punishment in all its forms ... whether imposed by State authorities or by private actors, including schools and parents, has been qualified by all relevant intergovernmental human rights monitoring bodies as cruel, inhuman or degrading punishment, it follows that, under present international law, corporal punishment can no longer be justified, not even under the most exceptional situations.[241]

The Right to Freedom from Physical Violence

Various international instruments protect the child's right to be free from any form of physical violence.[242] The Convention on the Rights of the Child (CRC), the world's most universally ratified human rights treaty, recognizes the child's right to be free from any form of physical or mental violence. Article 16 of the CRPD provides for the right of children with disabilities to be free from violence and abuse;[243] this article extends the protections granted by the CRC.

The United States is a signatory to the CRC and the treaty's provisions should be treated as authoritative guidance (as discussed below). Article 19 states:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation[.][244]

In 2006 the Committee on the Rights of the Child, the international body charged with monitoring compliance with the CRC, issued General Comment No. 8, discussing the right of the child to protection from corporal punishment. The committee found that article 19 "does not leave room for any level of legalized violence against children," and that "[c]orporal punishment and other cruel or degrading forms of punishment are forms of violence and States must take all appropriate legislative, administrative, social and educational measures to eliminate them."[245]

The Right to an Inclusive Education

Children with disabilities have the right to an inclusive education-based on the principle that all children should learn together, wherever possible, regardless of difference.[246] The CRPD requires states to ensure that "[p]ersons with disabilities can access an inclusive, quality and free primary and secondary education on an equal basis with others in the communities in which they live."[247] As discussed by Vernor Munoz, the United Nations Special Rapporteur on the Right to Education, schools with an inclusive orientation are the most effective means of combating discrimination, and are thus essential to securing the full right to education for children with disabilities.[248] US law mirrors this commitment, as President Obama noted when speaking of the Americans with Disabilities Act, an historic piece of legislation that attempted to ensure that "children with disabilities were no longer excluded ... and then no longer denied the opportunity to learn the same skills in the same classroom as other children."[249]

Corporal punishment undermines the right to education for all children,[250] including children with disabilities. The Committee on Economic, Social and Cultural Rights, the body charged with overseeing the International Covenant on Economic, Social and Cultural Rights (ICESCR), states in General Comment No. 13 (on the right to education) that "corporal punishment is inconsistent with the fundamental guiding principle of international human rights law enshrined in the Preambles to the Universal Declaration and both Covenants: the dignity of the individual."[251]

The Convention on the Rights of the Child recognizes the "right of the disabled child to special care" which should "ensure that the disabled child has effective access to and receives education ... in a manner conducive to the child's achieving the fullest possible social integration and individual development."[252] Corporal punishment excludes children with disabilities, especially when used at disproportionate rates, creating barriers to their full integration into the classroom.

Non-Discrimination and Equality

The use of corporal punishment in US public schools can also violate children's rights to non-discrimination, a fundamental principle of human rights law. The CRPD mandates that states party "undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability."[253] The CRC, the most widely ratified international human rights treaty in existence, also expressly prohibits discrimination on the basis of disability.[254] Fundamental rights protecting children from corporal punishment apply with equal force to protect the rights of children with disabilities as well as those of children without disabilities. Yet as a consequence of seeking public education, students with disabilities find their rights to security of person violated at disproportionate rates.

Parents' Rights

Parents have "the prior right to choose the kind of education that shall be given to their children."[255] Furthermore, as guardians of their children, they must be able to uphold and defend their children's rights. The preamble of the Convention on the Rights of the Child affirms that precisely because of their "physical and mental immaturity," children need "special safeguards and care, including appropriate legal protection."[256]Children cannot defend their rights on their own; parents have a duty to aid them in exercising those rights.[257] Parents of students with disabilities-who are doubly vulnerable and entitled to special care-must be given the tools with which to protect their children's rights.

The United States and International Human Rights Law

The United States is obliged to follow the international norms articulated above.[258] For instance, the United States is party to the ICCPR and the Convention against Torture. US constitutional law requires both individual states and the federal government to uphold human rights treaties made under the authority of the United States. The US Constitution states:

[A]ll treaties made, or which shall be made, under the authority of the United States shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Law of any State to the contrary notwithstanding.[259]

Upholding this constitutional principle, the US Supreme Court has stated, "[I]nternational law is part of our law, and must be ascertained and administered by the courts of justice of the appropriate jurisdiction[.]"[260]

Treaties of the United States-including human rights treaties-are binding on states independent of the will and power of state legislatures.[261] While the United States is a federal system in which considerable power over education rests with state and local officials, the federal government has obligations and authority to secure compliance with human rights laws among its constituent states.[262] Not only should state officials adhere to the prohibition on corporal punishment, but the federal government should support those states that eliminate the practice, thus bringing their laws and policies into compliance with human rights law.

As well as upholding its obligations under the ICCPR and the Convention against Torture, the United States must adhere to standards articulated in the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities. The CRC is nearly universally accepted: as of 2005, 192 countries were party to it. Singapore is the only party that has issued a declaration on the use of corporal punishment in the context of its obligations under the CRC.[263] The United States and Somalia are the only two countries in the world that have failed to ratify the CRC, although both have signed it.[264] As a signatory to both the CRC and the CRPD,  the United States must not take actions that would defeat either treaty's object and purpose.[265] In fact, the Supreme Court has explicitly acknowledged the CRC's authority as an expression of "the overwhelming weight of international opinion" in interpreting domestic legal standards.[266]

US Law Permitting Corporal Punishment

Despite the federal government's obligations to secure compliance with binding human rights norms among the states, federal law fails to live up to the international standards protecting children from corporal punishment.[267] In the 1977 case, Ingraham v. Wright, the US Supreme Court ruled that routine corporal punishment is not considered cruel and unusual punishment, and does not per se violate procedural due process.[268] Since then, however, a majority of the states have enacted legislation outlawing the use of corporal punishment in public schools.[269] The federal standards that continue to permit corporal punishment were established decades ago; it is incumbent on the US government to bring its law into line with international commitments.

In Ingraham the Supreme Court held that the cruel and unusual punishments clause of the Eighth Amendment to the US Constitution does not apply to disciplinary corporal punishment in public schools, because that clause was designed to protect those convicted of a crime, not those in schools.[270] The ruling in Ingraham was supported by only a narrow majority of the Court.[271] The dissent notes that "the constitutional provision is against cruel and unusual punishments; nowhere is that prohibition limited or modified by the language of the Constitution.... No one can deny that spanking of schoolchildren is 'punishment' under any reasonable reading of the word."[272]

Ingraham establishes that children have the right to personal security that is jeopardized when corporal punishment is administered,[273] and that the child "has a strong interest in procedural safeguards that minimize the risk of wrongful punishment."[274] Nonetheless, the Supreme Court held that imposing additional safeguards-such as prior notice and a hearing before corporal punishment is administered-would be costly and would intrude on the decision-making of the public school authorities.[275] Other federal courts have ruled that adequate state tort law or common law remedies exist for excessive corporal punishment.[276] Yet these remedies are often illusory. The dissent in Ingraham argues that more process is needed: "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[.]"[277] US courts should bring this jurisprudence into line with international standards and protect children from all forms of corporal punishment.

Incomplete Protection under US Federal Law for Students with Disabilities

The Individuals with Disabilities Education Act is the primary federal statute requiring provision of education to students with disabilities.[278]Students who qualify for assistance under IDEA receive an individual education program spelling out the specific educational and related services to be provided to meet their needs.[279] IDEA does not directly address discipline unless it amounts to a change in placement-that is, a significant suspension (typically for 10 or more days) or expulsion.[280]

During the George W. Bush administration, the Office of Special Education Programs-the relevant federal administrative body within the Department of Education-informally took the position that IDEA does not expressly prohibit the use of physical restraints on students with disabilities.[281] If restraint is permitted by state law, the IEP team must consider whether its use is consistent with the terms of a given IEP, and "should" consider the use of positive behavioral interventions regardless of whether the state law permits the use of restraint.[282] Though there is not substantial case law, courts have held that corporal punishment is "in-class" discipline and is not prohibited or regulated by the IDEA.[283]

Immunity for Educators

States that permit school corporal punishment provide legal immunity for paddlers.[284] In Mississippi, for example, the only way to prevail in a lawsuit against an educator for corporal punishment is if the educator's conduct constitutes a criminal offense, or if she acted with a "malicious purpose."[285] These immunity laws make it extremely difficult for parents to pursue legal action against school officials who have injured children in their care.