X. Seeking Redress for Corporal PunishmentParents find that they have few, if any, methods of redress when their children are beaten. Parents we interviewed who sought redress did so primarily because their child either sustained bruising or other serious injury or was paddled in violation of their express wishes to the contrary. State laws provide considerable legal protection for educators who physically punish children. We spoke with eight separate sets of parents who had extreme difficulties pursuing legal action or obtaining adequate responses from school district officials after their children were paddled.431 In these cases, which point to more systemic failings, parents were left without any recourse for defending their children’s rights. School District Response to Parental ComplaintsThe parents we spoke with found educational authorities to be unresponsive to complaints that their children had been subjected to force against their wishes, or that they had been seriously injured in the course of paddling. This was true for parents whether they raised the incident with the principal, superintendent, school board, or even state-wide educational authorities. Some parents were told not to question the school authority’s decision to discipline their child. Andrea N., a Texas mother of a 10-year-old with ADHD who was paddled against her verbally expressed wishes, went to meet with the administration: “The superintendent and the school board said they would have to agree with any decision the principal made.”432 Leah F., the mother of a middle school boy who was paddled in violation of her written request in west Texas, described her interactions with the principal:
Rhonda H.’s sixth-grade son was transferred by school authorities from an elementary school with an opt-out policy to an alternative school in a larger district. There, he was paddled and severely bruised. When Rhonda subsequently tried to opt out of paddling, she was told there was no opt-out policy in the new district, even though there had been one in her home district, and her son’s transfer was involuntary. She spoke to the principal in the home district: “I confronted [her] about it, and her thing was ‘well, that’s an entirely different school, different system.’ I said I understand that but my point was they sent him up there; they should have known what they were sending him to.” Rhonda was unable to opt-out of paddling in the alternative school, and chose to home school her children instead.434 School districts were also unresponsive to parents who complained that their children had been subjected to excessive or disproportionate force. Chris B., a father in north Mississippi, believes his son should not have been paddled 10 times merely for being tardy. School authorities told him he had to take his complaint to the school board, as it is responsible for making policy changes. Chris B. noted that he was then stonewalled, because the board chose to go into “‘executive session’ [a private session in which public access to the board is limited] so it wouldn’t get out…. The school board said it wasn’t their concern, because they don’t oversee the day-to-day issues at the school.”435 Some parents who are met with this lack of response from school authorities feel hopeless and do not know where else to turn.436 Immunity for PerpetratorsBoth Texas and Mississippi protect perpetrators from legal responsibility for assaulting children with or without opt outs from parents, and fail to provide parents with appropriate redress. In school districts that have opt-out policies, our research has failed to reveal any administrative or regulatory remedies for parents when opt-out preferences are not followed. The parents who raised concerns that their children were paddled in violation of opt-out forms did so either by approaching the superintendent or the school board, as discussed above. This is a general remedy for any school-based complaint, as opposed to a specific procedure to be followed when the opt-out preferences are violated. Human Rights Watch is not aware of any state-wide laws that provide a cause of action when parental preferences are ignored. School districts render opt-out forms meaningless when they fail to provide redress for paddlings in violation of those forms. When serious injuries to children result from corporal punishment in schools—events that occur with or without parents expressing their opt-out preferences—states rarely allow the perpetrators to be held responsible. States that permit school corporal punishment provide legal immunity for paddlers.437 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 he or she acted with a “malicious purpose.”438 These immunity laws make it extremely difficult for parents to pursue legal action against school officials who have acted contrary to parental wishes, or who have injured children in their care. Texas statutes also provide immunity for persons who administer corporal punishment under both criminal and civil law. The Texas Penal Code immunizes educators against criminal responsibility when they use “force, but not deadly force,” as long as the “actor reasonably believes the force is necessary” to further discipline.439 Likewise, educators are immune from civil liability when paddling does not result in bodily injury. The Texas Education Code specifies that “[a] professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee’s position of employment … except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.”440 Lack of Adequate Responses from Police or CourtsParents we spoke with who have sought redress in corporal punishment cases have faced obstacles at every level of the criminal justice system. Parents have been unable to convince police to investigate cases where students were injured, and have found district attorneys reluctant to file criminal charges.441 Equally, parents have faced obstacles pursuing civil lawsuits against paddlers; they have had trouble finding attorneys who will represent them, and they have had trouble meeting the high standard of proof established in the immunity statutes. According to parents, police have refrained from making arrests in paddling cases. Faye L., whose story is profiled at the start of this report, wanted to file assault charges after her 10-year-old son Tim sustained heavy bruising and swollen genitals after two paddlings in less than a week: “The police told me I wasn’t allowed until I had ‘followed school procedure.’ I was told to go to the school board … finally, the third time I went back to the police, they filed charges.”442 In a similar case, Rose T. wanted an arrest made when her three-year-old son was paddled. The sheriff’s department sent the case to the district attorney, who ultimately declined to pursue the case.443 Reportedly, the district attorney told Rose that a grand jury would not indict for felony assault in a corporal punishment case.444 Rose’s attorney reported there are no remaining options for legal redress, stating that “parents are told it’s just a paddling, no harm done.”445 Parents interviewed by Human Rights Watch had difficulty finding lawyers who would pursue these cases. Faye L. noted that she conducted an extensive search for a lawyer to take her son’s case:
Even when Faye finally found a lawyer, she received no relief. Although her son sustained heavy bruising and swollen genitals, no criminal charges were filed, because a grand jury decided not to indict the perpetrator.447 She then pursued the case in federal court, but it was dismissed.448 Likewise, there is evidence that some local courts in Texas may not be receptive to cases challenging corporal punishment: in at least four instances since 2002, judges or justices of the peace have been reprimanded for using or requiring parents to use corporal punishment against juveniles appearing before their courts.449 Leah F., who wanted to pursue legal action in Texas after her seventh-grade son was paddled, “called this one attorney—and she said she didn’t think it would be worth shelling out for an attorney because my kids would be retaliated against.”450 Leah also spoke to a lawyer for Legal Aid: “She listened to me, but pretty much said the same thing…. She basically said, only do something if it happens again…. I feel discouraged; I really should try though because it feels like they got away with it.”451 Parents ultimately find that justice is elusive. Janet Y., whose daughter was paddled in violation of an opt-out form, was able to find a lawyer, but still has faced obstacles. Her state civil case has been postponed. She commented, “I feel like it’s the good ol’ boys’ system…. If [the prosecutor] goes too hard after this case, he’s an elected official and it will hurt his career…. I asked the judge to step down because her husband works for the school board.”452 Parents’ Inability to Protect ChildrenUltimately, some parents decide that they cannot adequately protect their children from corporal punishment. They believe that they are left with the option of pulling their children out of school or subjecting them to an unsafe environment. Rose T., as already noted, pulled her three-year-old son out of the public pre-kindergarten program to which she was entitled as soon as she found out he had been paddled, and sent him to private day care at personal expense.453 And Faye L. removed her son Tim from public school after he was paddled in September of his fifth-grade year. She home schooled him for the remainder of the school year, quitting her own job to do so, and then found him a place in a neighboring school district.454 Parents who have sought redress for corporal punishment have found themselves and their families ostracized within their communities. Prior to the paddling incident in which her son was badly beaten, Faye L. regularly attended a local church. After she started speaking out, “it was best we didn’t go there anymore—the preacher, well, his wife was a teacher, and the school nurse was a congregant—I felt I couldn’t go anymore, I couldn’t talk to my own preacher.”455 She noted, “We’re trash now, because we talked.”456 Janet Y. reported that she and her daughter Brittany, who are suing the school district after Brittany was paddled in violation of an opt-out form, have been “completely ostracized…. When it came out on the radio show, that was the worst … [I was told] that I can disappear.”457 Brittany, now 19 years old, hates that she is discussed on talk radio stations: “Oh, it made me feel terrible, because, you know, they were judging me and my character … one parent called in and said I was a trouble maker.” She stated that she is glad to be fighting the case, “but it’s stressful. I just hate riding by the school and people saying, ‘Oh, that’s her.’ I went to homecoming … and everyone just stared at me.”458 Parents who find themselves unable to protect their children feel helpless. After Janet Y.’s daughter was paddled in violation of an opt-out form, she commented, “I thought I had done everything to protect her. After telling them not to lay a hand on her again and signing the opt-out form, it didn’t do any good. I mean, this child is a gift from God, I’ve vowed to protect her…. It hurts that I haven’t protected her.”459 Rose T. noted that she was afraid of the lasting effects on her three-year-old: “What made me so angry—he’s three years old, he was petrified. He didn’t want to go back to school, and he didn’t want to start his new school. I was so worried that this was going to constantly be with him, equating going to school with being paddled.”460 431 Human Rights Watch group interview with Michelle and Tom R., Hinds County, Mississippi, December 8, 2007; Human Rights Watch interview with Janet Y., Mississippi, December 11, 2007; Human Rights Watch group interview with Rhonda H., Ben H., and Robert H., Mississippi, December 11, 2007; Human Rights Watch telephone interview with Chris B., north Mississippi, January 14, 2008; Human Rights Watch interview with Leah F., rural west Texas, February 23, 2008; Human Rights Watch interview with Faye L., rural east Texas, February 26, 2008; Human Rights Watch interview with Andrea N., rural east Texas, February 28, 2008; Human Rights Watch telephone interview with Rose T., east Texas, March 4, 2008. 432 Human Rights Watch interview with Andrea N., rural east Texas, February 28, 2008. 433 Human Rights Watch interview with Leah F., rural west Texas, February 23, 2008. 434 Human Rights Watch group interview with Rhonda H., Ben H., and Robert H., Mississippi, December 11, 2007. 435 Human Rights Watch telephone interview with Chris B., north Mississippi, January 14, 2008. 436 Human Rights Watch interview with Leah F., rural west Texas, February 23, 2008. 437 State employees are typically shielded from liability in certain ways for official actions taken within the scope of their employment duties, under their individual states’ “Sovereign Immunity” statutes. In states that use corporal punishment, this means that the administration of physical punishment, as long as it is “reasonable” and in conformity with the school district’s policies, may be considered an official act of maintaining order and discipline, and therefore protected. Such is the case in Kentucky, Arizona, Ohio, Oklahoma, and Louisiana. See, for example, in Kentucky, Carr v. Wright, 423 S.W.2d 521 (Ct. App. Ky., 1968), Wood v. Bd. of Educ. of Danville, 412 S.W.2d 877 (Ct. App. Ky., 1967); in Arizona, A.R.S. § 15-341(E), LaFrentz v. Gallagher, 462 P.2d 804 (Ariz. 1969); in Ohio, Ohio Code Ann. § 3319.41(A)(1), State v. Albert, 456 N.E.2d 594 (Ohio Ct. App. 1998); in Oklahoma, 21 O.S. 1981 § 844, Holman v. Wheeler, 677 P.2d 645 (Okla. 1983) (overturned on unrelated grounds); in Louisiana, Roy v. Continental Ins. Co., 313 So.2d 349 (La. Ct. App. 1975), Setliff v. Rapides Parish School Bd., 888 So. 2d 1156 (La. Ct. App. 2004). Some states that use corporal punishment provide an extra layer of protection for school employees by addressing disciplinary acts explicitly within the state’s law, rather than relying on general Sovereign Immunity. These states include Missouri, North Carolina, Indiana, Wyoming, Florida, Georgia, Arkansas, Alabama, Colorado, Tennessee, and New Mexico. See, for example, in Missouri, V.A.M.S. § 160.261, see also Streeter v. Hundley, 580 S.W.2d 284 (Mo. 1979); in North Carolina, N.C.G.S.A. § 115C-391(h); in Indiana, Ind. Code Ann. § 13-3-3(20); in Wyoming, W.S. 1977 § 21-4-308; in Florida, F.S.A. § 1006.11; in Georgia, Ga. Code Ann. § 20-2-732; in Arkansas, A.C.A. § 6-17-112; in Alabama, Ala. Code Ann. 1975 § 16-28A-1; in Colorado, C.R.S.A. § 22-32-109.1; in Tennessee, T.C.A. § 49-6-4105; in New Mexico, N.M.S.A. 1978 § 22-5-4.3. 438 Mississippi Torts Claims Act, Miss. Code Ann. Section 11-46-7 and Miss. Code Ann. Section 11-46-9(1)(x). 439 Texas Penal Code, Section 9.62. 440 Texas Education Code, Section 22.051(a). 441 Human Rights Watch spoke with district attorneys’ offices in both Mississippi and Texas to ask what policies and procedures the district attorneys would follow on receiving corporal punishment cases. Seven of the 11 county offices we called did not respond to our messages. Human Rights Watch calls to district attorneys in Hinds County, Mississippi; Sunflower and Washington Counties, Mississippi; Meridian City, Mississippi; Webster County, Mississippi; Smith County, Texas; Jefferson County, Texas; and Potter County, Texas, June 25, 2008. The remaining four offices stated that they do not have clear policies or procedures that were followed for these cases. Human Rights Watch calls to district attorneys in Lauderdale County, Mississippi; Midland County, Texas; Nacogdoches County, Texas; and Lubbock County, Texas, June 25, 2008. 442 Human Rights Watch interview with Faye L., rural east Texas, February 26, 2008. 443 Human Rights Watch interview with an attorney in private practice representing Rose T., rural Texas, February 26, 2008. 444 Ibid. 445 Ibid. 446 Human Rights Watch interview with Faye L., rural east Texas, February 26, 2008. 447 Ibid. 448 Ibid. 449 Christopher Sherman, “South Texas Justice of Peace Must Cease Paddling in Court,” El Paso Times, June 11, 2008 (Cameron County Justice of the Peace ordered stepfather to paddle 14-year-old stepdaughter for truancy); Texas State Commission on Judicial Conduct, “Private Sanction Summaries, FY 2000 to Present,” June 4, 2008, http://www.scjc.state.tx.us/pdf/actions/FY00-Present-PVsum.pdf (accessed July 19, 2008), p. 17 (“judge’s actions and suggestions regarding the administration of corporal punishment by parents to their children constituted willful or persistent conduct that cast public discredit on the judiciary”); Review Tribunal, Appointed by the [Texas] Supreme Court (reviewing recommendation from the State Commission on Judicial Conduct), In re Thurman Bill Bartie, Order No. 90 (April 16, 2004) (Justice of the Peace in Jefferson County removed and barred from judicial office in part for engaging in corporal punishment of juveniles who appeared before him on truancy charges); Texas State Commission on Judicial Conduct, “Summaries of Public Sanctions, September 1, 1999 through August 31, 2003,” http://www.scjc.state.tx.us/pdf/actions/FY2000-2003PUB-SANC-SUMM.pdf (accessed June 17, 2008) (during a truancy hearing the judge ordered a foster parent to paddle his foster child in the courtroom with a paddle obtained from the judge’s chambers). 450 Human Rights Watch interview with Leah F., rural west Texas, February 23, 2008. 451 Ibid. 452 Human Rights Watch interview with Janet Y., Mississippi, December 11, 2007. 453 Human Rights Watch telephone interview with Rose T., east Texas, March 4, 2008. 454 Human Rights Watch interview with Faye L., rural east Texas, February 26, 2008. 455 Ibid. 456 Ibid. 457 Human Rights Watch interview with Janet Y., Mississippi, December 11, 2007. 458 Human Rights Watch interview with Brittany Y., who recently left high school, rural Mississippi, December 11, 2007. 459 Human Rights Watch interview with Janet Y., Mississippi, December 11, 2007. 460 Human Rights Watch telephone interview with Rose T., east Texas, March 4, 2008. |