U.S. Supreme Court Ingraham v. Wright, 430
U.S. 651 (1977) Ingraham v. Wright No. 75-6527 Argued November 2,
1976 Decided April 19,
1977 430
U.S. 651 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH
CIRCUIT Syllabus Petitioners, pupils in a Dade County, Fla., junior high school,
filed this action in Federal District Court pursuant to 42 U.S.C.
§§ 1981-1988 for damages and injunctive and declaratory relief
against respondent school officials, alleging that petitioners and
other students had been subjected to disciplinary corporal
punishment in violation of their constitutional rights. The Florida
statute then in effect authorized corporal punishment after the
teacher had consulted with the principal or teacher in charge of
the school, specifying that the punishment was not to be "degrading
or unduly severe." A School Board regulation contained specific
directions and limitations, authorizing punishment administered to
a recalcitrant student's buttocks with a wooden paddle. The
evidence showed that the paddling of petitioners was exceptionally
harsh. The District Court granted respondents' motion to dismiss
the complaint, finding no basis for constitutional relief. The
Court of Appeals affirmed. Held: 1. The Cruel and Unusual Punishments Clause of the Eighth
Amendment does not apply to disciplinary corporal punishment in
public schools. Pp. 430 U. S.
664 -671.

															(a) The history of the Eighth Amendment and the decisions of
this Court make it clear that the prohibition against cruel and
unusual punishment was designed to protect those convicted of
crime. Pp. 430 U. S.
664 -668.

															(b) There is no need to wrench the Eighth Amendment from its
historical context and extend it to public school disciplinary
practices. The openness of the public school and its supervision by
the community afford significant safeguards against the kinds of
abuses from which that Amendment protects convicted criminals.
These safeguards are reinforced by the legal constraints of the
common law, whereby any punishment going beyond that which is
reasonably necessary for the proper education and discipline of the
child may result in both civil and criminal liability. Pp. 430 U. S.
668 -671.

															2. The Due Process Clause of the Fourteenth Amendment does not
require notice and hearing prior to imposition of corporal
punishment as that practice is authorized and limited by the common
law. Pp. 430 U. S.
672 -682. Page 430 U. S. 652 (a) Liberty within the meaning of the Fourteenth Amendment is
implicated where public school authorities, acting under color of
state law, deliberately punish a child for misconduct by restraint
and infliction of appreciable physical pain. Freedom from bodily
restraint and punishment is within the liberty interest in personal
security that has historically been protected from state
deprivation without due process of law. Pp. 430 U. S.
672 -674.

															(b) Under the longstanding accommodation between the child's
interest in personal security and the traditional common law
privilege, there can be no deprivation of substantive rights as
long as the corporal punishment remains within the limits of that
privilege. The child nonetheless has a strong interest in
procedural safeguards that minimize the risk of wrongful punishment
and provide for the resolution of disputed questions of
justification. Pp. 675-676.

															(c) The Florida scheme, considered in light of the openness of
the school environment, affords significant protection against
unjustified corporal punishment of school children. The teacher and
principal must exercise prudence and restraint when they decide
that corporal punishment is necessary for disciplinary purposes. If
the punishment is later found to be excessive, they may be held
liable in damages or be subject to criminal penalties. Where the
State has thus preserved what "has always been the law of the
land," United States v. Barnett, 376 U.
S. 681 , 376 U. S. 692 ,
the case for administrative safeguards is significantly less
compelling than it would otherwise be. Pp. 430 U. S.
676 -680.

															(d) Imposing additional administrative safeguards as a
constitutional requirement would significantly intrude into the
area of educational responsibility that lies primarily with the
public school authorities. Prior procedural safeguards require a
diversion of educational resources, and school authorities may
abandon corporal punishment as a disciplinary measure rather than
incur the burdens of complying with procedural requirements. The
incremental benefit of invoking the Constitution to impose prior
notice and a hearing cannot justify the costs. Pp. 430 U. S.
680 -682.

															525 F.2d 909, affirmed.

															POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. WHITE, J.,
filed a dissenting opinion, in which BRENNAN, MARSHALL, and
STEVENS, JJ., joined, post, p. 430 U. S. 683 .
STEVENS, J., filed a dissenting opinion, post, p. 430 U. S.
700 . Page 430 U. S. 653 MR. JUSTICE POWELL delivered the opinion of the Court.

															This case presents questions concerning the use of corporal
punishment in public schools: first, whether the paddling of
students as a means of maintaining school discipline constitutes
cruel and unusual punishment in violation of the Eighth Amendment;
and, second, to the extent that paddling is constitutionally
permissible, whether the Due Process Clause of the Fourteenth
Amendment requires prior notice and an opportunity to be heard. I Petitioners James Ingraham and Roosevelt Andrews filed the
complaint in this case on January 7, 1971, in the United States
District Court for the Southern District of Florida. [ Footnote 1 ] At the time, both were enrolled
in the Charles R. Drew Junior High School in Dade County, Fla.,
Ingraham in the eighth grade and Andrews in the ninth. The
complaint contained three counts, each alleging a separate cause of
action for deprivation of constitutional rights under 42 U.S.C. §§
1981-1988. Counts one and two were individual actions for damages
by Ingraham and Andrews based on paddling incidents that allegedly
occurred in October, 1970, at Drew Junior High School. Count three
was a class action for declaratory and Page 430 U. S. 654 injunctive relief filed on behalf of all students in the Dade
County schools. [ Footnote 2 ]
Named as defendants in all counts were respondents Willie J. Wright
(principal at Drew Junior High School), Lemmie Deliford (an
assistant principal), Solomon Barnes (an assistant to the
principal), and Edward L. Whigham (superintendent of the Dade
County School System). [ Footnote
3 ]

															Petitioners presented their evidence at a week-long trial before
the District Court. At the close of petitioners' case, respondents
moved for dismissal of count three "on the ground that, upon the
facts and the law, the plaintiff has shown no right to relief,"
Fed.Rule Civ.Proc. 41(b), and for a ruling that the evidence would
be insufficient to go to a jury on counts one and two. [ Footnote 4 ] The District Court granted
the motion as to all three counts, and dismissed the complaint
without hearing evidence on behalf of the school authorities. App.
142-150. Page 430 U. S. 655 Petitioners' evidence may be summarized briefly. In the
1970-1971 school year, many of the 237 schools in Dade County used
corporal punishment as a means of maintaining discipline pursuant
to Florida legislation and a local School Board regulation.
[ Footnote 5 ] The statute then
in effect authorized limited corporal punishment by negative
inference, proscribing punishment which was "degrading or unduly
severe" or which was inflicted without prior consultation with the
principal or the teacher in charge of the school. Fla.Stat.Ann. §
232.27 (1961). [ Footnote 6 ] The
regulation, Dade County School Board Policy Page 430 U. S. 656 5144, contained explicit, directions and limitations. [ Footnote 7 ] The authorized punishment
consisted of paddling the recalcitrant student on the buttocks with
a flat wooden paddle measuring less than two feet long, three to
four inches wide, and about one-half inch thick. The normal
punishment was limited to one to five "licks" or blows with the
paddle, and resulted in Page 430 U. S. 657 no apparent physical injury to the student. School authorities
viewed corporal punishment as a less drastic means of discipline
than suspension or expulsion. Contrary to the procedural
requirements of the statute and regulation, teachers often paddled
students on their own authority without first consulting the
principal. [ Footnote 8 ]

															Petitioners focused on Drew Junior High School, the school in
which both Ingraham and Andrews were enrolled in the fall of 1970.
In an apparent reference to Drew, the District Court found that

															"[t]he instances of punishment which could be characterized as
severe, accepting the students' testimony as credible, took place
in one junior high school."

															App. 147. The evidence, consisting mainly of the testimony of 16
students, suggests that the regime at Drew was exceptionally harsh.
The testimony of Ingraham and Andrews, in support of their
individual claims for damages, is illustrative. Because he was slow
to respond to his teacher's instructions, Ingraham was subjected to
more than 20 licks with a paddle while being held over a table in
the principal's office. The paddling was so severe that he suffered
a hematoma [ Footnote 9 ]
requiring medical attention and keeping him out of school for
several days. [ Footnote 10 ]
Andrews was paddled several times for minor infractions. On two
occasions, he was struck on his arms, once depriving him of the
full use of his arm for a week. [ Footnote 11 ] Page 430 U. S. 658 The District Court made no findings on the credibility of the
students' testimony. Rather, assuming their testimony to be
credible, the court found no constitutional basis for relief. With
respect to count three, the class action, the court concluded that
the punishment authorized and practiced generally in the county
schools violated no constitutional right. Id. at 143, 149.
With respect to counts one and two, the individual damages actions,
the court concluded that, while corporal punishment could in some
cases violate the Eighth Amendment, in this case, a jury could not
lawfully find

															"the elements of severity, arbitrary infliction, unacceptability
in terms of contemporary standards, or gross disproportion which
are necessary to bring 'punishment' to the constitutional level of
'cruel and unusual punishment.'" Id. at 143.

															A panel of the Court of Appeals voted to reverse. 498 F.2d 248
(CA5 1974). The panel concluded that the punishment was so severe
and oppressive as to violate the Eighth and Fourteenth Amendments,
and that the procedures outlined in Policy 5144 failed to satisfy
the requirements of the Due Process Clause. Upon rehearing, the en
banc court rejected these conclusions and affirmed the judgment of
the District Court. 525 F.2d 909 (1976). The full court held that
the Due Process Clause did not require notice or an opportunity to
be heard:

															"In essence, we refuse to set forth, as constitutionally
mandated, procedural standards for an activity which is not
substantial enough, on a constitutional level, to justify the time
and effort which would have to be expended by the school in
adhering to those procedures or to justify further interference by
federal courts into the internal affairs of public schools." Id. at 919. The court also rejected the petitioners'
substantive contentions. The Eighth Amendment, in the court's view,
was simply inapplicable to corporal punishment in public Page 430 U. S. 659 schools. Stressing the likelihood of civil and criminal
liability in state law, if petitioners' evidence were believed, the
court held that

															"[t]he administration of corporal punishment in public schools,
whether or not excessively administered, does not come within the
scope of Eighth Amendment protection." Id. at 915. Nor was there any substantive violation of
the Due Process Clause. The court noted that

															"[p]addling of recalcitrant children has long been an accepted
method of promoting good behavior and instilling notions of
responsibility and decorum into the mischievous heads of school
children." Id. at 917. The court refused to examine instances of
punishment individually:

															"We think it a misuse of our judicial power to determine, for
example, whether a teacher has acted arbitrarily in paddling a
particular child for certain behavior or whether, in a particular
instance of misconduct, five licks would have been a more
appropriate punishment than ten licks. . . ." Ibid. We granted certiorari, limited to the questions of cruel and
unusual punishment and procedural due process. 425 U.S. 990.
[ Footnote 12 ] II In addressing the scope of the Eighth Amendment's prohibition on
cruel and unusual punishment, this Court has found it useful to
refer to "[t]raditional common law concepts," Powell v.
Texas, 392 U. S. 514 , 392 U. S. 535 (1968) (plurality opinion), and to the "attitude[s] which our
society has traditionally taken." Id. at 392 U. S. 531 .
So, too, in defining the requirements Page 430 U. S. 660 of procedural due process under the Fifth and Fourteenth
Amendments, the Court has been attuned to what "has always been the
law of the land," United States v. Barnett, 376 U.
S. 681 , 376 U. S. 692 (1964), and to "traditional ideas of fair procedure." Greene v.
McElroy, 360 U. S. 474 , 360 U. S. 508 (1959). We therefore begin by examining the way in which our
traditions and our laws have responded to the use of corporal
punishment in public schools.

															The use of corporal punishment in this country as a means of
disciplining schoolchildren dates back to the colonial period.
[ Footnote 13 ] It has
survived the transformation of primary and secondary education from
the colonials' reliance on optional private arrangements to our
present system of compulsory education and dependence on public
schools. [ Footnote 14 ]
Despite the general abandonment of corporal punishment as a means
of punishing criminal offenders, [ Footnote 15 ] the practice continues to play a role in the
public education of schoolchildren in most parts of the country.
[ Footnote 16 ] Professional
and public opinion is sharply divided on the practice, [ Footnote 17 ] and has been for more
than Page 430 U. S. 661 a century. [ Footnote 18 ]
Yet we can discern no trend toward its elimination.

															At common law, a single principle has governed the use of
corporal punishment since before the American Revolution: teachers
may impose reasonable but not excessive force to discipline a
child. [ Footnote 19 ]
Blackstone catalogued among the "absolute rights of individuals"
the right "to security from the corporal insults of menaces,
assaults, beating, and wounding," 1 W. Blackstone, Commentaries
*134, but he did not regard it a "corporal insult" for a teacher to
inflict "moderate correction" on a child in his care. To the extent
that force was "necessary to answer the purposes for which [the
teacher] is employed," Blackstone viewed it as "justifiable or
lawful." Id. at *453; 3 id. at *120. The basic
doctrine has not changed. The prevalent rule in this country today
privileges such force as a teacher or administrator "reasonably
believes to be necessary for [the child's] proper control,
training, or education." Restatement (Second) of Torts § 147(2)
(1965); see id. § 153(2). To the extent that the force is
excessive or unreasonable, the educator in virtually all States is
subject to possible civil and criminal liability. [ Footnote 20 ] Page 430 U. S. 662 Although the early cases viewed the authority of the teacher as
deriving from the parents, [ Footnote 21 ] the concept of parental delegation has been
replaced by the view -- more consonant with compulsory education
laws -- that the State itself may impose such corporal punishment
as is reasonably necessary "for the proper education of the child
and for the maintenance of group discipline." 1 F. Harper & F.
James, Law of Torts § 3.20, p. 292 (1956). [ Footnote 22 ] All of the circumstances are to be
taken into account in determining whether the punishment is
reasonable in a particular case. Among the most important
considerations are the seriousness of the offense, the attitude and
past behavior of the child, the nature and severity of the
punishment, the age and strength of the child, and the availability
of less severe but equally effective means of discipline. Id. at 290-291; Restatement (Second) of Torts § 150,
Comments c - e , p. 268 (1965).

															Of the 23 States that have addressed the problem through
legislation, 21 have authorized the moderate use of corporal
punishment in public schools. [ Footnote 23 ] Of these States, only a few Page 430 U. S. 663 have elaborated an the common law test of reasonableness,
typically providing for approval or notification of the child's
parents, [ Footnote 24 ] or
for infliction of punishment only by the principal [ Footnote 25 ] or in the presence of an adult
witness. [ Footnote 26 ] Only
two States, Massachusetts and New Jersey, have prohibited all
corporal punishment in heir public schools. [ Footnote 27 ] Where the legislatures have at
acted, the state courts have uniformly preserved the common law
rule permitting teachers to use reasonable force in disciplining
children in their charge. [ Footnote 28 ]

															Against this background of historical and contemporary approval
of reasonable corporal punishment, we turn to the constitutional
question before us. Page 430 U. S. 664 III The Eighth Amendment provides: "Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." Bail, fines, and punishment traditionally
have been associated with the criminal process, and, by subjecting
the three to parallel limitations, the text of the Amendment
suggests an intention to limit the power of those entrusted with
the criminal law function of government. An examination of the
history of the Amendment and the decisions of this Court construing
the proscription against cruel and unusual punishment confirms that
it was designed to protect those convicted of crimes. We adhere to
this longstanding limitation, and hold that the Eighth Amendment
does not apply to the paddling of children as a means of
maintaining discipline in public schools. A The history of the Eighth Amendment is well known. [ Footnote 29 ] The text was taken,
almost verbatim, from a provision of the Virginia Declaration of
Rights of 1776, which in turn derived from the English Bill of
Rights of 1689. The English version, adopted after the accession of
William and Mary, was intended to curb the excesses of English
judges under the reign of James II. Historians have viewed the
English provision as a reaction either to the "Bloody Assize," the
treason trials conducted by Chief Justice Jeffreys in 1685 after
the abortive rebellion of the Duke of Monmouth, [ Footnote 30 ] or to the perjury prosecution
of Titus Oates in the same year. [ Footnote 31 ] In Page 430 U. S. 665 either case, the exclusive concern of the English version was
the conduct of judges in enforcing the criminal law. The original
draft introduced in the House of Commons provided: [ Footnote 32 ]

															"The requiring excessive bail of persons committed in criminal
cases and imposing excessive fines, and illegal punishments, to be
prevented."

															Although the reference to "criminal cases" was eliminated from
the final draft, the preservation of a similar reference in the
preamble [ Footnote 33 ]
indicates that the deletion was without substantive significance.
Thus, Blackstone treated each of the provision's three prohibitions
as bearing only on criminal proceedings and judgments. [ Footnote 34 ]

															The Americans who adopted the language of this part of the
English Bill of Rights in framing their own State and Federal
Constitutions 100 years later feared the imposition of torture and
other cruel punishments not only by judges acting beyond their
lawful authority, but also by legislatures engaged in making the
laws by which judicial authority would be measured. Weems v.
United States, 217 U. S. 349 , 217 U. S.
371 -373 (1910). Indeed, the principal concern of the
American Framers appears to have been with the legislative
definition of crimes and punishments. In re Kemmler, 136 U. S. 436 , 136 U. S.
446 -447 (1890); Page 430 U. S. 666 Furman v. Georgia, 408 U. S. 238 , 408 U. S. 263 (1972) (BRENNAN, J., concurring). But if the American provision was
intended to restrain government more broadly than its English
model, the subject to which it was intended to apply -- the
criminal process -- was the same.

															At the time of its ratification, the original Constitution was
criticized in the Massachusetts and Virginia Conventions for its
failure to provide any protection for persons convicted of crimes.
[ Footnote 35 ] This criticism
provided the impetus for inclusion of the Eighth Amendment in the
Bill of Rights. When the Eighth Amendment was debated in the First
Congress, it was met by the objection that the Cruel and Unusual
Punishments Clause might have the effect of outlawing what were
then the common criminal punishments of hanging, whipping, and
earcropping. 1 Annals of Cong. 754 (1789). The objection was not
heeded, "precisely because the legislature would otherwise have had
the unfettered power to prescribe punishments for crimes." Furman v. Georgia, supra at 408 U. S.
263 . B In light of this history, it is not surprising to find that
every decision of this Court considering whether a punishment is
"cruel and unusual" within the meaning of the Eighth and Fourteenth
Amendments has dealt with a criminal punishment. Page 430 U. S. 667 See Estelle v. Gamble, 429 U. S.
97 (1976) (incarceration without medical care); Gregg v. Georgia, 428 U. S. 153 (1976) (execution for murder); Furman v. Georgia, supra, (execution for murder); Powell v. Texas, 392 U.
S. 514 (1968) (plurality opinion) ($20 fine for public
drunkenness); Robinson v. California, 370 U.
S. 660 (1962) (incarceration as a criminal for addiction
to narcotics); Trop v. Dulles, 356 U. S.
86 (1958) (plurality opinion) (expatriation for
desertion); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947) (execution by electrocution after a failed first attempt); Weems v. United States, supra, (15 years' imprisonment and
other penalties for falsifying an official document); Howard v.
Fleming, 191 U. S. 126 (1903) (10 years' imprisonment for conspiracy to defraud); In
re Kemmler, supra, (execution by electrocution); Wilkerson
v. Utah, 99 U. S. 130 (1879)
(execution by firing squad); Pervear v.
Commonwealth , 5 Wall. 475 (1867) (fine and
imprisonment at hard labor for bootlegging).

															These decisions recognize that the Cruel and Unusual Punishments
Clause circumscribes the criminal process in three ways: first, it
limits the kinds of punishment that can be imposed on those
convicted of crimes, e.g., Estelle v. Gamble, supra; Trop v.
Dulles, supra; second, it proscribes punishment grossly
disproportionate to the severity of the crime, e.g., Weems v.
United States, supra; and third, it imposes substantive limits
on what can be made criminal and punished as such, e.g.,
Robinson v. California, supra. We have recognized the last
limitation as one to be applied sparingly.

															"The primary purpose of [the Cruel and Unusual Punishments
Clause] has always been considered, and properly so, to be directed
at the method or kind of punishment imposed for the violation of
criminal statutes. . . ." Powell v. Texas, supra at 392 U. S.
531 -532 (plurality opinion).

															In the few cases where the Court has had occasion to confront
claims that impositions outside the criminal process constituted
cruel and unusual punishment, it has had no difficulty Page 430 U. S. 668 finding the Eighth Amendment inapplicable. Thus, in Fong Yue
Ting v. United States, 149 U. S. 698 (1893), the Court held the Eighth Amendment inapplicable to the
deportation of aliens on the ground that "deportation is not a
punishment for crime." Id. at 149 U. S. 730 ; see Mahler v. Eby, 264 U. S. 32 (1924); Bugajewitz v. Adams, 228
U. S. 685 (1913). And in Uphaus v. Wyman, 360 U. S. 72 (1959), the Court sustained a judgment of civil contempt, resulting
in incarceration pending compliance with a subpoena, against a
claim that the judgment imposed cruel and unusual punishment. It
was emphasized that the case involved " essentially a civil
remedy designed for the benefit of other parties . . . exercised
for centuries to secure compliance with judicial decrees.'" Id. at 360 U. S. 81 ,
quoting Green v. United States, 356 U.
S. 165 , 356 U. S. 197 (1958) (dissenting opinion). [ Footnote 36 ] C Petitioners acknowledge that the original design of the Cruel
and Unusual Punishments Clause was to limit criminal punishments,
but urge nonetheless that the prohibition should be extended to ban
the paddling of schoolchildren. Observing that the Framers of the
Eighth Amendment could not have envisioned our present system of
public and compulsory education, with its opportunities for
noncriminal punishments, petitioners contend that extension of the
prohibition against cruel punishments is necessary lest we afford
greater protection Page 430 U. S. 669 to criminals than to school children. It would be anomalous,
they say, if school children could be beaten without constitutional
redress, while hardened criminals suffering the same beatings at
the hands of their jailers might have a valid claim under the
Eighth Amendment. See Jackson v. Bishop, 404 F.2d 571 (CA8
1968); cf. Estelle v. Gamble, supra. Whatever force this
logic may have in other settings, [ Footnote 37 ] we find it an inadequate basis for wrenching
the Eighth Amendment from its historical context and extending it
to traditional disciplinary practices in the public schools.

															The prisoner and the school child stand in wholly different
circumstances, separated by the harsh facts of criminal conviction
and incarceration. The prisoner's conviction entitles the State to
classify him a a "criminal," and his incarceration deprives him of
the freedom "to be with family and friends and to form the other
enduring attachments of normal life." Morrissey v. Brewer, 408 U. S. 471 , 408 U. S. 482 (1972); see Meachum v. Fano, 427 U.
S. 215 , 427 U. S.
224 -225 (1976). Prison brutality, as the Court of
Appeals observed in this case, is

															"part of the total punishment to which the individual is being
subjected for his crime and, as such, is a proper subject for
Eighth Amendment scrutiny."

															525 F.2d at 915. [ Footnote
38 ] Even so, the protection afforded Page 430 U. S. 670 by the Eighth Amendment is limited. After incarceration, only
the " unnecessary and wanton infliction of pain,'" Estelle
v. Gamble, 429 U.S. at 429 U. S. 103 ,
quoting Gregg v. Georgia, 428 U.S. at 428 U. S. 173 ,
constitutes cruel and unusual punishment forbidden by the Eighth
Amendment. The school child has little need for the protection of the
Eighth Amendment. Though attendance may not always be voluntary,
the public school remains an open institution. Except perhaps when
very young, the child is not physically restrained from leaving
school during school hours; and at the end of the school day, the
child is invariably free to return home. Even while at school, the
child brings with him the support of family and friends, and is
rarely apart from teachers and other pupils who may witness and
protest any instances of mistreatment.

															The openness of the public school and its supervision by the
community afford significant safeguards against the kinds of abuses
from which the Eighth Amendment protects the prisoner. In virtually
every community where corporal punishment is permitted in the
schools, these safeguards are reinforced by the legal constraints
of the common law. Public school teachers and administrators are
privileged at common law to inflict only such corporal punishment
as is reasonably necessary for the proper education and discipline
of the child; any punishment going beyond the privilege may result
in both civil and criminal liability. See 430 U.
S. supra. As long as the schools are open to
public scrutiny, there is no reason to believe that the common law
constraints will not effectively remedy and deter excesses such as
those alleged in this case. [ Footnote 39 ] Page 430 U. S. 671 We conclude that, when public school teachers or administrators
impose disciplinary corporal punishment, the Eighth Amendment is
inapplicable. The pertinent constitutional question is whether the
imposition is consonant with the requirements of due process.
[ Footnote 40 ] Page 430 U. S. 672 IV The Fourteenth Amendment prohibits any state deprivation of
life, liberty, or property without due process of law. Application
of this prohibition requires the familiar two-stage analysis: we
must first ask whether the asserted individual interests are
encompassed within the Fourteenth Amendment's protection of "life,
liberty or property"; if protected interests are implicated, we
then must decide what procedures constitute "due process of law." Morrissey v. Brewer, 408 U.S. at 408 U. S. 481 ; Board of Regents v. Roth, 408 U.
S. 564 , 408 U. S.
569 -572 (1972). See Friendly, Some Kind of
Hearing, 123 U.Pa.L.Rev. 1267 (1975). Following that analysis here,
we find that corporal punishment in public schools implicates a
constitutionally protected liberty interest, but we hold that the
traditional common law remedies are fully adequate to afford due
process. A "[T]he range of interests protected by procedural due process is
not infinite." Board of Regents v. Roth, supra at 408 U. S. 570 .
We have repeatedly rejected "the notion that any grievous loss
visited upon a person by the State is sufficient to invoke the
procedural protections of the Due Process Clause." Meachum v.
Fano, 427 U.S. at 427 U. S. 224 .
Due process is required only when a decision of the State
implicates an interest within the protection of the Fourteenth
Amendment. And

															"to determine whether due process requirements apply in the
first place, we must look not to the 'weight,' but to the nature,
of the interest at stake." Roth, supra at 408 U. S. 570 -571.

															The Due Process Clause of the Fifth Amendment, later
incorporated into the Fourteenth, was intended to give
Americans Page 430 U. S. 673 at least the protection against governmental power that they had
enjoyed as Englishmen against the power of the Crown. The liberty
preserved from deprivation without due process included the right
"generally to enjoy those privileges long recognized at common law
as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 (1923); see Dent v. West Virginia, 129 U.
S. 114 , 129 U. S.
123 -124 (1889). Among the historic liberties so
protected was a right to be free from, and to obtain judicial
relief for, unjustified intrusions on personal security. [ Footnote 41 ]

															While the contours of this historic liberty interest in the
context of our federal system of government have not been defined
precisely, [ Footnote 42 ]
they always have been thought to encompass Page 430 U. S. 674 freedom from bodily restraint and punishment. See Rochin v.
California, 342 U. S. 165 (1952). It is fundamental that the state cannot hold and physically
punish an individual except in accordance with due process of
law.

															This constitutionally protected liberty interest is at stake in
this case. There is, of course, a de minimis level of
imposition with which the Constitution is not concerned. But at
least where school authorities, acting under color of state law,
deliberately decide to punish a child for misconduct by restraining
the child and inflicting appreciable physical pain, we hold that
Fourteenth Amendment liberty interests are implicated. [ Footnote 43 ] B "[T]he question remains what process is due." Morrissey v.
Brewer, supra at 408 U. S. 481 .
Were it not for the common law privilege permitting teachers to
inflict reasonable corporal punishment on children in their care,
and the availability of the traditional remedies for abuse, the
case for requiring advance procedural safeguards would be strong
indeed. [ Footnote 44 ] But
here we deal with a punishment -- paddling -- within that
tradition, Page 430 U. S. 675 and the question is whether the common law remedies are adequate
to afford due process.

															"'[D]ue process,' unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place and
circumstances. . . . Representing a profound attitude of fairness .
. . , 'due process' is compounded of history, reason, the past
course of decisions, and stout confidence in the strength of the
democratic faith which we profess. . . ." Anti-Fascist Comm. v. McGrath, 341 U.
S. 123 , 341 U. S.
162 -163 (1951) (Frankfurter, J., concurring). Whether,
in this case, the common law remedies for excessive corporal
punishment constitute due process of law must turn on an analysis
of the competing interests at stake, viewed against the background
of "history, reason, [and] the past course of decisions." The
analysis requires consideration of three distinct factors:

															"first, the private interest that will be affected . . . ;
second, the risk of an erroneous deprivation of such interest . . .
and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the [state] interest, including
the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would
entail." Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 335 (1976). Cf. Arnett v. Kennedy, 416 U.
S. 134 , 416 U. S.
167 -168 (1974) (POWELL, J., concurring). 1 Because it is rooted in history, the child's liberty interest in
avoiding corporal punishment while in the care of public school
authorities is subject to historical limitations. Under the common
law, an invasion of personal security gave rise to a right to
recover damages in a subsequent judicial proceeding. 3 W.
Blackstone, Commentaries *120-121. But the right of recovery was
qualified by the concept of justification. Thus, there could be no
recovery against a teacher who gave only "moderate correction" to a
child. Id. at *120. To the Page 430 U. S. 676 extent that the force used was reasonable in light of its
purpose, it was not wrongful, but rather "justifiable or lawful." Ibid. The concept that reasonable corporal punishment in school is
justifiable continues to be recognized in the laws of most States. See 430 U. S. supra. It represents "the balance struck by this country," Poe v. Ullman, 367 U. S. 497 , 367 U. S. 542 (1961) (Harlan, J., dissenting), between the child's interest in
personal security and the traditional view that some limited
corporal punishment may be necessary in the course of a child's
education. Under that longstanding accommodation of interests,
there can be no deprivation of substantive rights as long as
disciplinary corporal punishment is within the limits of the common
law privilege.

															This is not to say that the child's interest in procedural
safeguards is insubstantial. The school disciplinary process is not
"a totally accurate, unerring process, never mistaken and never
unfair. . . ." Goss v. Lopez, 419 U.
S. 565 , 419 U. S.
579 -580 (1975). In any deliberate infliction of corporal
punishment on a child who is restrained for that purpose, there is
some risk that the intrusion on the child's liberty will be
unjustified, and therefore unlawful. In these circumstances, the
child has a strong interest in procedural safeguards that minimize
the risk of wrongful punishment and provide for the resolution of
disputed questions of justification.

															We turn now to a consideration of the safeguards that are
available under applicable Florida law. 2 Florida has continued to recognize, and indeed has strengthened
by statute, the common law right of a child not to be subjected to
excessive corporal punishment in school. Under Florida law, the
teacher and principal of the school decide in the first instance
whether corporal punishment is reasonably necessary under the
circumstances in order to discipline Page 430 U. S. 677 a child who.has misbehaved. But they must exercise prudence and
restraint. For Florida has preserved the traditional judicial
proceedings for determining whether the punishment was justified.
If the punishment inflicted is later found to have been excessive
-- not reasonably believed at the time to be necessary for the
child's discipline or training -- the school authorities inflicting
it may be held liable in damages to the child and, if malice is
shown, they may be subject to criminal penalties. [ Footnote 45 ]

															Although students have testified in this case to specific
instances of abuse, there is every reason to believe that such
mistreatment is an aberration. The uncontradicted evidence suggests
that corporal punishment in the Dade County schools was, "[w]ith
the exception of a few cases, . . . unremarkable in physical
severity." App. 147. Moreover, because paddlings are usually
inflicted in response to conduct directly Page 430 U. S. 678 observed by teachers in their presence, the risk that a child
will be paddled without cause is typically insignificant. In the
ordinary case, a disciplinary paddling neither threatens seriously
to violate any substantive rights nor condemns the child "to suffer
grievous loss of any kind." Anti-Fascist Comm. v. McGrath, 341 U.S. at 341 U. S. 168 (Frankfurter, J., concurring).

															In those cases where severe punishment is contemplated, the
available civil and criminal sanctions for abuse -- considered in
light of the openness of the school environment -- afford
significant protection against unjustified corporal punishment. See supra at 430 U. S. 670 .
Teachers and school authorities are unlikely to inflict corporal
punishment unnecessarily or excessively when a possible consequence
of doing so is the institution of civil or criminal proceedings
against them. [ Footnote
46 ]

															It still may be argued, of course, that the child's liberty
interest would be better protected if the common law remedies were
supplemented by the administrative safeguards of prior notice and a
hearing. We have found frequently that some kind of prior hearing
is necessary to guard against arbitrary impositions on interests
protected by the Fourteenth Amendment. Page 430 U. S. 679 See, e.g., Board of Regents v. Roth, 408 U.S. at 408 U. S.
569 -570; Wolff v. McDonnell, 418 U.
S. 539 , 418 U. S.
557 -558 (1974); cf. Friendly, 123 U.Pa.L.Rev.
at 1275-1277. But where the State has preserved what "has always
been the law of the land," United States v. Barnett, 376 U. S. 681 (1964), the case for administrative safeguards is significantly
less compelling. [ Footnote
47 ]

															There is a relevant analogy in the criminal law. Although the
Fourth Amendment specifically proscribes "seizure" of a person
without probable cause, the risk that police will act unreasonably
in arresting a suspect is not thought to require an advance
determination of the facts. In United States v. Watson, 423 U. S. 411 (1976), we reaffirmed the traditional common law rule that police
officers may make warrantless public arrests on probable cause.
Although we observed that an advance determination of probable
cause by a magistrate would be desirable, we declined

															"to transform this judicial preference into a constitutional
rule when the judgment of the Nation and Congress has for so long
been to authorize warrantless public arrests on probable cause. . .
." Id. at 423 U. S. 423 ; see id. at 423 U. S. 429 (POWELL, J., concurring). Despite the distinct possibility that a
police officer may improperly assess the facts and thus
unconstitutionally deprive an individual of Page 430 U. S. 680 liberty, we declined to depart from the traditional rule by
which the officer's perception is subjected to judicial scrutiny
only after the fact. [ Footnote
48 ] There is no more reason to depart from tradition and
require advance procedural safeguards for intrusions on personal
security to which the Fourth Amendment does not apply. 3 But even if the need for advance procedural safeguards were
clear, the question would remain whether the incremental benefit
could justify the cost. Acceptance of petitioners' claims would
work a transformation in the law governing corporal punishment in
Florida and most other States. Given the impracticability of
formulating a rule of procedural due process that varies with the
severity of the particular imposition, [ Footnote 49 ] the prior hearing petitioners seek would
have to precede any paddling, however moderate or trivial.

															Such a universal constitutional requirement would significantly
burden the use of corporal punishment as a disciplinary measure.
Hearings -- even informal hearings -- require time, personnel, and
a diversion of attention from normal school pursuits. School
authorities may well choose to abandon corporal punishment rather
than incur the burdens of complying with the procedural
requirements. Teachers, properly concerned with maintaining
authority in the classroom, may well prefer to rely on other
disciplinary measures -- which they may view as less effective --
rather than confront the Page 430 U. S. 681 possible disruption that prior notice and a hearing may entail.
[ Footnote 50 ] Paradoxically,
such an alteration of disciplinary policy is most likely to occur
in the ordinary case, where the contemplated punishment is well
within the common law privilege. [ Footnote 51 ]

															Elimination or curtailment of corporal punishment would be
welcomed by many as a societal advance. But when such a policy
choice may result from this Court's determination of an asserted
right to due process, rather than from the normal processes of
community debate and legislative action, the societal costs cannot
be dismissed as insubstantial. [ Footnote 52 ] We are reviewing here a legislative
judgment, rooted in history and reaffirmed in the laws of many
States, that corporal punishment serves important educational
interests. This judgment must be viewed in light of the
disciplinary problems commonplace in the schools. As noted in Goss v. Lopez, 419 U.S. at 419 U. S. 580 :
"Events calling for discipline are frequent occurrences, and
sometimes require immediate, effective action." [ Footnote 53 ] Assessment Page 430 U. S. 682 of the need for, and the appropriate means of maintaining,
school discipline is committed generally to the discretion of
school authorities subject to state law.

															"[T]he Court has repeatedly emphasized the need for affirming
the comprehensive authority of the States and of school officials,
consistent with fundamental constitutional safeguards, to prescribe
and control conduct in the schools." Tinker v. Des Moines School Dist., 393 U.
S. 503 , 393 U. S. 507 (1969). [ Footnote 54 ]

															"At some point, the benefit of an additional safeguard to the
individual affected . . . and to society in terms of increased
assurance that the action is just, may be outweighed by the
cost." Mathews v. Eldridge, 424 U.S. at 424 U. S. 348 .
We think that point has been reached in this case. In view of the
low incidence of abuse, the openness of our schools, and the common
law safeguards that already exist, the risk of error that may
result in violation of a school child's substantive rights can only
be regarded a minimal. Imposing additional administrative
safeguards as a constitutional requirement might reduce that risk
marginally, but would also entail a significant intrusion into an
area of primary educational responsibility. We conclude that the
Due Process Clause does not require notice and a hearing prior to
the imposition of corporal punishment in the public schools, as
that practice is authorized and limited by the common law.
[ Footnote 55 ] Page 430 U. S. 683 V Petitioners cannot prevail on either of the theories before us
in this case. The Eighth Amendment's prohibition against cruel and
unusual punishment is inapplicable to school paddlings, and the
Fourteenth Amendment's requirement of procedural due process is
satisfied by Florida's preservation of common law constraints and
remedies. We therefore agree with the Court of Appeals that
petitioners' evidence affords no basis for injunctive relief, and
that petitioners cannot recover damages on the basis of any Eighth
Amendment or procedural due process violation. Affirmed. [ Footnote 1 ]

															As Ingraham and Andrews were minors, the complaint was filed in
the names of Eloise Ingraham, James' mother, and Willie Everett,
Roosevelt's father.

															[ Footnote 2 ]

															The District Court certified the class, under Fed.Rules
Civ.Proc. 23(b)(2) and (c)(1), as follows:

															"'All students of the Dade County School system who are subject
to the corporal punishment policies issued by the Defendant, Dade
County School Board. . . .'"

															App. 17. One student was specifically excepted from the class by
request.

															[ Footnote 3 ]

															The complaint also named the Dade County School Board as a
defendant, but the Court of Appeals held that the Board was not
amenable to suit under 42 U.S.C. §§ 1981-1988, and dismissed the
suit against the Board for want of jurisdiction. 525 F.2d 909, 912
(CA5 1976). This aspect of the Court of Appeals' judgment is not
before us.

															[ Footnote 4 ]

															Petitioners had waived their right to jury trial on the claims
for damages in counts one and two, but respondents had not. The
District Court proceeded initially to hear evidence only on count
three, the claim for injunctive relief. At the close of
petitioners' case, however, the parties agreed that the evidence
offered on count three (together with certain stipulated testimony)
would be considered, for purposes of a motion for directed verdict,
as if it had also been offered on counts one and two. It was
understood that respondents could reassert a right to jury trial if
the motion were denied. App. 142.

															[ Footnote 5 ]

															The evidence does not show how many of the schools actually
employed corporal punishment as a means of maintaining discipline.
The authorization of the practice by the School Board extended to
231 of the schools in the 1970-1971 school year, but at least 10 of
those schools did not administer corporal punishment as a matter of
school policy. Id. at 137-139.

															[ Footnote 6 ]

															In the 1970-1971 school year, § 232.27 provided:

															"Each teacher or other member of the staff of any school shall
assume such authority for the control of pupils as may be assigned
to him by the principal and shall keep good order in the classroom
and in other places in which he is assigned to be in charge of
pupils, but he shall not inflict corporal punishment before
consulting the principal or teacher in charge of the school, and in
no case shall such punishment be degrading or unduly severe in its
nature. . . ."

															Effective July 1, 1976, the Florida Legislature amended the law
governing corporal punishment. Section 232.27 now reads:

															"Subject to law and to the rules of the district school board,
each teacher or other member of the staff of any school shall have
such authority for the control and discipline of students as may be
assigned to him by the principal or his designated representative
and shall keep good order in the classroom and in other places in
which he is assigned to be in charge of students. If a teacher
feels that corporal punishment is necessary, at least the following
procedures shall be followed:"

															"(1) The use of corporal punishment shall be approved in
principle by the principal before it is used, but approval is not
necessary for each specific instance in which it is used."

															"(2) A teacher or principal may administer corporal punishment
only in the presence of another adult who is informed beforehand,
and in the student's presence, of the reason for the
punishment."

															"(3) A teacher or principal who has administered punishment
shall, upon request, provide the pupil's parent or guardian with a
written explanation of the reason for the punishment and the name
of the other [adult] who was present."

															Fla.Stat.Ann. § 232.27 (1977) (codifier's notation omitted).
Corporal punishment is now defined as

															"the moderate use of physical force or physical contact by a
teacher or principal as may be necessary to maintain discipline or
to enforce school rules."

															§ 228.041(28). The local school boards are expressly authorized
to adopt rules governing student conduct and discipline, and are
directed to make available codes of student conduct. § 230.23(6).
Teachers and principals are given immunity from civil and criminal
liability for enforcing disciplinary rules, "[e]xcept in the case
of excessive force or cruel and unusual punishment. . . ." §
232.275.

															[ Footnote 7 ]

															In the 1970-1971 school year, Policy 5144 authorized corporal
punishment where the failure of other means of seeking cooperation
from the student made its use necessary. The regulation specified
that the principal should determine the necessity for corporal
punishment, that the student should understand the seriousness of
the offense and the reason for the punishment, and that the
punishment should be administered in the presence of another adult
in circumstances not calculated to hold the student up to shame or
ridicule. The regulation cautioned against using corporal
punishment against a student under psychological or medical
treatment, and warned that the person administering the punishment
"must realize his own personal liabilities" in any case of physical
injury. App. 15.

															While this litigation was pending in the District Court, the
Dade County School Board amended Policy 5144 to standardize the
size of the paddles used in accordance with the description in the
text, to proscribe striking a child with a paddle elsewhere than on
the buttocks, to limit the permissible number of "licks" (five for
elementary and intermediate grades and seven for junior and senior
grades), and to require a contemporaneous explanation of the need
for the punishment to the student and a subsequent notification to
the parents. App. 126-128.

															[ Footnote 8 ]

															498 F.2d 248, 255, and n. 7 (1974) (original panel opinion), vacated on rehearing, 525 F.2d 909 (1976); App. 48, 138,
146; Exhibits 14, 15.

															[ Footnote 9 ]

															Stedman's Medical Dictionary (23d ed.1976) defines "hematoma"
as

															"[a] localized mass of extravasated blood that is relatively or
completely confined within an organ or tissue . . . ; the blood is
usually clotted (or partly clotted), and, depending on how long it
has been there, may manifest various degrees of organization and
decolorization."

															[ Footnote 10 ]

															App. 3-4, 18-20, 68-85, 129-136.

															[ Footnote 11 ] Id. at 4-5, 104-113. The similar experiences of several
other students at Drew, to which they individually testified in the
District Court, are summarized in the original panel opinion in the
Court of Appeals, 498 F.2d at 257-259.

															[ Footnote 12 ]

															We denied review of a third question presented in the petition
for certiorari:

															"Is the infliction of severe corporal punishment upon public
school students arbitrary, capricious and unrelated to achieving
any legitimate educational purpose, and therefore violative of the
Due Process Clause of the Fourteenth Amendment?"

															Pet. for Cert. 2.

															[ Footnote 13 ] See I. Falk, Corporal Punishment 11-48 (1941); N.
Edwards & H. Richey, The School in the American Social Order
115-116 (1947).

															[ Footnote 14 ]

															Public and compulsory education existed in New England before
the Revolution, see id. at 50-68, 78-81, 97-113, but the
demand for free public schools as we now know them did not gain
momentum in the country as a whole until the mid-1800's, and it was
not until 1918 that compulsory school attendance laws were in force
in all the States. See Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 489 n. 4 (1954), citing Cubberley, Public Education in the United
States 408-423, 563-565 (1934 ed.); cf. Wisconsin v.
Yoder, 406 U. S. 205 , 406 U. S. 226 ,
and n. 15 (1972).

															[ Footnote 15 ] See Jackson v. Bishop, 404 F.2d 571, 580 (CA8 1968);
Falk, supra at 85-88.

															[ Footnote 16 ] See K. Larson & M. Karpas, Effective Secondary
School Discipline 146 (1963); A. Reitman, J. Follman, & E.
Ladd, Corporal Punishment in the Public Schools 2-5 (ACLU Report
1972).

															[ Footnote 17 ]

															For samplings of scholarly opinion on the use of corporal
punishment in the schools, see F. Reardon & R.
Reynolds, Corporal Punishment in Pennsylvania 1-2, 34 (1975);
National Education Association, Report of the Task Force on
Corporal Punishment (1972); K. James, Corporal Punishment in the
Public Schools 8-16 (1963). Opinion surveys taken since 1970 have
consistently shown a majority of teachers and of the general public
favoring moderate use of corporal punishment in the lower grades. See Reardon & Reynolds, supra at 2, 23-26;
Delaware Department of Public Instruction, Report on the Corporal
Punishment Survey 48 (1974); Reitman, Follman, & Ladd, supra at 34-35; National Education Association, supra at 7.

															[ Footnote 18 ] See Falk, supra, 66-69; cf. Cooper v.
McJunkin, 4 Ind. 290 (1853).

															[ Footnote 19 ] See 1 F. Harper & F. James, Law of Torts § 3.20,
pp. 288-292 (1956); Proehl, Tort Liability of Teachers, 12
Vand.L.Rev. 723, 734-738 (1959); W. Prosser, Law of Torts 136-137
(4th ed.1971).

															[ Footnote 20 ] See cases cited n 28, infra. The criminal codes of many States
include provisions explicitly recognizing the teacher's common law
privilege to inflict reasonable corporal punishment. E.g., Ariz.Rev.Stat.Ann. § 13-246(A)(1) (1956); Conn.Gen.Stat. § 53a-18
(1977); Neb.Rev.Stat. § 28-840(2) (1975); N.Y. Penal Law § 35.10
(McKinney 1975 and Supp. 1976); Ore.Rev.Stat. § 161.205(1)
(1975).

															[ Footnote 21 ] See Proehl, supra at 726, and n. 13.

															[ Footnote 22 ]

															Today, corporal punishment in school is conditioned on parental
approval only in California. Cal.Educ.Code § 49001 (West Supp.
1977). Cf. Morrow v. Wood, 35 Wis. 59 (1874). This Court
has held in a summary affirmance that parental approval of corporal
punishment is not constitutionally required. Baker v.
Owen, 423 U.S. 907 (1975), aff'g 395 F.
Supp. 294 (MDNC).

															[ Footnote 23 ]

															Cal.Educ.Code §§ 49000-49001 (West Supp. 1977); Del.Code Ann.,
Tit 14, § 701 (Supp. 1976); Fla.Stat.Ann. § 232.27 (1977); Ga.Code
Ann. §§ 32-835, 32-836 (1976); Haw.Rev.Stat. §§ 298-16 (1975
Supp.), 703-309(2) (Spec. Pamphlet 1975); Ill.Ann.Stat., c. 122, §§
24-24, 34-84a (1977 Supp.); Ind.Code Ann. § 28.1-5-2 (1975);
Md.Ann.Code, Art. 77, § 98B (1975) (in specified counties);
Mich.Comp.Laws Ann., § 340.756 (1970); Mont.Rev.Codes Ann. §
75-6109 (1971); Nev.Rev.Stat. § 392.465 (1973); N.C.Gen.Stat. §
115-146 (1975); Ohio Rev.Code Ann. § 3319.41 (1972);
Okla.Stat.Ann., Tit. 70, § 6-114 (1972); Pa.Stat.Ann., Tit. 24, §
13-1317 (Supp. 1976); S.C.Code § 59-63-260 (1977); S.D. Compiled
Laws Ann. § 13-32-2 (1975); Vt.Stat.Ann., Tit. 16, § 1161 (Supp.
1976); Va.Code Ann. § 22-231.1 (1973); W.Va.Code, § 18A-5-1 (1977);
Wyo.Stat. § 21.1-64 (Supp. 1975).

															[ Footnote 24 ]

															Cal.Educ.Code § 49001 (West Supp. 1977) (requiring prior
parental approval in writing); Fla.Stat.Ann. § 232.27(3) (1977)
(requiring a written explanation on request); Mont.Rev.Codes Ann. §
75-6109 (1971) (requiring prior parental notification).

															[ Footnote 25 ]

															Md.Ann.Code, Art. 77, § 98B (1975).

															[ Footnote 26 ]

															Fla.Stat.Ann. § 232.27 (1977); Haw.Rev. Stats. § 298-16 (1975
Supp.); Mont.Rev.Codes Ann. § 75-6109 (1971).

															[ Footnote 27 ]

															Mass.Gen.Laws Ann., c. 71, § 37G (Supp. 1976); N.J.Stat.Ann. §
18A:6-1 (1968).

															[ Footnote 28 ] E.g., Suits v. Glover, 260 Ala. 449, 71 So. 2d
49 (1954); La Frentz v. Gallagher, 105 Ariz. 255, 462 P.2d 804 (1969); Berry v. Arnold School Dist., 199 Ark. 1118, 137
S.W.2d 256 (1940); Andreozzi v. Rubano, 145 Conn.280, 141
A.2d 639 (1958); Tinkham v. Kole, 252 Iowa 1303, 110 N.W.2d 258 (1961); Carr v. Wright, 423
S.W.2d 521 (Ky.1968); Christman v. Hickman, 225
Mo.App. 828, 37 S.W.2d 672 (1931); Simms v. School Dist. No.
1, 13 Ore.App. 119, 508 P.2d
236 (1973); Marlar v. Bill, 181 Tenn. 100, 178 S.W.2d
634 (1944); Prendergast v. Masterson, 196 S.W. 246
(Tex.Civ.App. 1917). See generally sources cited n 19, supra. [ Footnote 29 ] See Gregg v. Georgia, 428 U. S. 153 , 428 U. S.
168 -173 (1976) (joint opinion of STEWART, POWELL, and
STEVENS, JJ.) (hereinafter joint opinion); Furman v.
Georgia, 408 U. S. 238 , 408 U. S.
316 -328 (1972) (MARSHALL, J., concurring); Granucci,
"Nor Cruel and Unusual Punishments Inflicted:" The Original
Meaning, 57 Calif.L.Rev. 839 (1969).

															[ Footnote 30 ] See I. Brant, The Bill of Rights 155 (1965).

															[ Footnote 31 ] See Granucci, supra, at 852-860.

															[ Footnote 32 ] Id. at 855.

															[ Footnote 33 ]

															The preamble reads in part:

															"WHEREAS the late King James the Second, by the assistance of
divers evil counselors, judges, and ministers employed by him, did
endeavor to subvert and extirpate . . . the laws and liberties of
this kingdom."

															" * * * *" "10. And excessive bail hath been required of persons committed
in criminal cases, to elude the benefit of the laws made for the
liberty of the subjects."

															"11. And excessive fines have been imposed; and illegal and
cruel punishments inflicted. . . ."

															R. Perry & J. Cooper, Sources of Our Liberties 245-246
(1959).

															[ Footnote 34 ]

															4 W. Blackstone, Commentaries *297 (bail), *379 (fines and other
punishments).

															[ Footnote 35 ]

															Abraham Holmes of Massachusetts complained specifically of the
absence of a provision restraining Congress in its power to
determine "what kind of punishments shall be inflicted on persons
convicted of crimes." 2 J. Elliot, Debates on the Federal
Constitution 111 (1876). Patrick Henry was of the same mind:

															"What says our [Virginia] bill of rights? -- 'that excessive
bail ought not to be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.' Are you not, therefore,
now calling on those gentlemen who are to compose Congress, to
prescribe trials and define punishments without this control? Will
they find sentiments there similar to this bill of rights? You let
them loose; you do more -- you depart from the genius of your
country. . . ."

															3 id. at 47.

															[ Footnote 36 ]

															In urging us to extend the Eighth Amendment to ban school
paddlings, petitioners rely on the many decisions in which this
Court has held that the prohibition against "cruel and unusual"
punishments is not " fastened to the obsolete, but may acquire
meaning as public opinion becomes enlightened by a humane
justice.'" Gregg v. Georgia, 428 U.S. at 428 U. S. 171 (joint opinion); see, e.g., Trop v. Dulles, 356 U. S.
86 , 356 U. S.
100 -101 (1958) (plurality opinion); Weems v. United
States, 217 U. S. 349 , 217 U. S. 373 , 217 U. S. 378 (1910). This reliance is misplaced. Our Eighth Amendment decisions
have referred to "evolving standards of decency," Trop v.
Dulles, supra at 356 U. S. 101 ,
only in determining whether criminal punishments are "cruel and
unusual" under the Amendment. [ Footnote 37 ]

															Some punishments, though not labeled "criminal" by the State,
may be sufficiently analogous to criminal punishments in the
circumstances in which they are administered to justify application
of the Eighth Amendment. Cf. In re Gault, 387 U. S.
1 (1967). We have no occasion in this case, for example,
to consider whether or under what circumstances persons
involuntarily confined in mental or juvenile institutions can claim
the protection of the Eighth Amendment.

															[ Footnote 38 ]

															Judge Friendly similarly has observed that the Cruel and Unusual
Punishments Clause

															"can fairly be deemed to be applicable to the manner in which an
otherwise constitutional sentence . . . is carried out by an
executioner, see Louisiana ex rel. Francis v. Resweber, 329 U. S.
459 . . . (1947), or to cover conditions of confinement
which my make intolerable an otherwise constitutional term of
imprisonment." Johnson v. Glick, 481 F.2d 1028, 1032 (CA2), cert.
denied, 414 U.S. 1033 (1973) (citation omitted).

															[ Footnote 39 ]

															Putting history aside as irrelevant, the dissenting opinion of
MR. JUSTICE WHITE argues that a "purposive analysis" should control
the reach of the Eighth Amendment. Post at 430 U. S.
686 -688. There is no support whatever for this approach
in the decisions of this Court. Although an imposition must be
"punishment" for the Cruel and Unusual Punishments Clause to apply,
the Court has never held that all punishments are subject
to Eighth Amendment scrutiny. See n 40, infra. The applicability of the
Eighth Amendment always has turned on its original meaning, as
demonstrated by its historical derivation. See Gregg v.
Georgia, 428 U.S. at 428 U. S.
169 -173 (joint opinion); Furman v. Georgia, 408
U.S. at 408 U. S.
315 -328 (MARSHALL, J., concurring).

															The dissenting opinion warns that, as a consequence of our
decision today, teachers may "cut off a child's ear for being late
to class." Post at 430 U. S. 684 .
This rhetoric bears no relation to reality or to the issues
presented in this case. The laws of virtually every State forbid
the excessive physical punishment of school children. Yet the logic
of the dissent would make the judgment of which disciplinary
punishments are reasonable and which are excessive a matter of
constitutional principle in every case, to be decided ultimately by
this Court. The hazards of such a broad reading of the Eighth
Amendment are clear.

															"It is always time to say that this Nation is too large, too
complex and composed of too great a diversity of peoples for any
one of us to have the wisdom to establish the rules by which local
Americans must govern their local affairs. The constitutional rule
we are urged to adopt is not merely revolutionary -- it departs
from the ancient faith based on the premise that experience in
making local laws by local people themselves is by far the safest
guide for a nation like ours to follow." Powell v. Texas, 392 U. S. 514 , 392 U. S.
547 -548 (1968) (opinion of Black, J.).

															[ Footnote 40 ]

															Eighth Amendment scrutiny is appropriate only after the State
has complied with the constitutional guarantees traditionally
associated with criminal prosecutions. See United States v.
Lovett, 328 U. S. 303 , 328 U. S.
317 -318 (1946). Thus, in Trop v. Dulles, 356 U. S. 86 (1958), the plurality appropriately took the view that
denationalization was an impermissible punishment for wartime
desertion under the Eighth Amendment, because desertion already had
been established at a criminal trial. But in Kennedy v.
Mendoza-Martinez, 372 U. S. 144 (1963), where the Court considered denationalization as a
punishment for evading the draft, the Court refused to reach the
Eighth Amendment issue, holding instead that the punishment could
be imposed only through the criminal process. Id. at 372 U. S.
162 -167, 372 U. S. 186 ,
and n. 43. As these cases demonstrate, the State does not acquire
the power to punish with which the Eighth Amendment is concerned
until after it has secured a formal adjudication of guilt in
accordance with due process of law. Where the State seeks to impose
punishment without such an adjudication, the pertinent
constitutional guarantee is the Due Process Clause of the
Fourteenth Amendment.

															[ Footnote 41 ] See 1 W. Blackstone, Commentaries *134. Under the 39th
Article of the Magna Carta, an individual could not be deprived of
this right of personal security "except by the legal judgment of
his peers or by the law of the land." Perry & Cooper, supra, n 33, at 17.
By subsequent enactments of Parliament during the time of Edward
III, the right was protected from deprivation except "by due
process of law." See Shattuck, The True Meaning of the
Term "Liberty," 4 Harv.L.Rev. 365, 372-373 (1891).

															[ Footnote 42 ] See, e.g., Skinner v. Oklahoma, 316 U.
S. 535 , 316 U. S. 541 (1942) (sterilization); Jacobson v. Massachusetts, 197 U. S. 11 (1905)
(vaccination); Union Pacific R. Co. v. Botsford, 141 U. S. 250 , 141 U. S.
251 -252 (1891) (physical examinations); cf. ICC v.
Brimson, 154 U. S. 447 , 154 U. S. 479 (1894).

															The right of personal security is also protected by the Fourth
Amendment, which was made applicable to the States through the
Fourteenth because its protection was viewed as "implicit in the concept of ordered liberty' . . . enshrined in the history
and the basic constitutional documents of English-speaking
peoples." Wolf v. Colorado, 338 U. S.
25 , 338 U. S. 27 -28
(1949). It has been said of the Fourth Amendment that its
"overriding function . . . is to protect personal privacy and
dignity against unwarranted intrusion by the State." Schmerber
v. California, 384 U. S. 757 , 384 U. S. 767 (1966). But the principal concern of that Amendment's prohibition
against unreasonable searches and seizures is with intrusions on
privacy in the course of criminal investigations. See Whalen v.
Roe, 429 U. S. 589 , 429 U. S. 604 n. 32 (1977). Petitioners do not contend that the Fourth Amendment
applies, according to its terms, to corporal punishment in public
school. [ Footnote 43 ]

															Unlike Goss v. Lopez, 419 U. S. 565 (1975), this case does not involve the state-created property
interest in public education. The purpose of corporal punishment is
to correct a child's behavior without interrupting his education.
That corporal punishment may, in a rare case, have the unintended
effect of temporarily removing a child from school affords no basis
for concluding that the practice itself deprives students of
property protected by the Fourteenth Amendment.

															Nor does this case involve any state-created interest in liberty
going beyond the Fourteenth Amendment's protection of freedom from
bodily restraint and corporal punishment. Cf. Meachum v.
Fano, 427 U. S. 215 , 427 U. S.
225 -227 (1976).

															[ Footnote 44 ]

															If the common law privilege to inflict reasonable corporal
punishment in school were inapplicable, it is doubtful whether any
procedure short of a trial in a criminal or juvenile court could
satisfy the requirements of procedural due process for the
imposition of such punishment. See United States v.
Lovett, 328 U.S. at 328 U. S.
317 -318; cf. Breed v. Jones, 421 U.
S. 519 , 421 U. S.
528 -529 (1975).

															[ Footnote 45 ] See supra at 430 U. S.
655 -657, 430 U. S. 661 .
The statutory prohibition against "degrading" or unnecessarily
"severe" corporal punishment in former § 232.27 has been construed
as a statement of the common law principle. See 1937
Op.Fla.Atty.Gen., Biennial Report of the Atty.Gen. 169 (1937-1938); cf. 1957 Op.Fla.Atty.Gen., Biennial Report of the
Atty.Gen. 7, 8 (1957-1958). Florida Stat.Ann. § 827.03(3) (1976)
makes malicious punishment of a child a felony. Both the District
Court, App. 144, and the Court of Appeals, 525 F.2d at 915,
expressed the view that the common law tort remedy was available to
the petitioners in this case. And petitioners conceded in this
Court that a teacher who inflicts excessive punishment on a child
may be held both civilly and criminally liable under Florida law.
Brief for Petitioners 33 n. 11, 34; Tr. of Oral Arg. 17, 52-53.

															In view of the statutory adoption of the common law rule, and
the unanimity of the parties and the courts below, the doubts
expressed in MR. JUSTICE WHITE's dissenting opinion as to the
availability of tort remedies in Florida can only be viewed as
chimerical. The dissent makes much of the fact that no Florida
court has ever "recognized" a damages remedy for unreasonable
corporal punishment. Post at 430 U. S. 694 n. 11, 430 U. S. 700 .
But the absence of reported Florida decisions hardly suggests that
no remedy is available. Rather, it merely confirms the common sense
judgment that excessive corporal punishment is exceedingly rare in
the public schools.

															[ Footnote 46 ]

															The low incidence of abuse, and the availability of established
judicial remedies in the event of abuse, distinguish this case from Goss v. Lopez, 419 U. S. 565 (1975). The Ohio law struck down in Goss provided for
suspensions from public school of up to 10 days without "any
written procedure applicable to suspensions." Id. at 419 U. S. 567 .
Although Ohio law provided generally for administrative review,
Ohio Rev.Code Ann. § 2506.01 (Supp. 1973), the Court assumed that
the short suspensions would not be stayed pending review, with the
result that the review proceeding could serve neither a deterrent
nor a remedial function. 419 U.S. at 419 U. S. 581 n. 10. In these circumstances, the Court held the law authorizing
suspensions unconstitutional for failure to require "that there be
at least an informal give-and-take between student and
disciplinarian, preferably prior to the suspension. . . ." Id. at 419 U. S. 584 .
The subsequent civil and criminal proceedings available in this
case may be viewed as affording substantially greater protection to
the child than the informal conference mandated by Goss. [ Footnote 47 ]

															"[P]rior hearings might well be dispensed with in many
circumstances in which the state's conduct, if not adequately
justified, would constitute a common law tort. This would leave the
injured plaintiff in precisely the same posture as a common law
plaintiff, and this procedural consequence would be quite
harmonious with the substantive view that the fourteenth amendment
encompasses the same liberties as those protected by the common
law."

															Monaghan, Of "Liberty" and "Property," 62 Cornell L.Rev. 405,
431 (1977) (footnote omitted). See Bonner v. Coughlin, 517
F.2d 1311, 1319 (CA7 1975), modified en banc, 545 F.2d 565
(1976), cert. pending, No. 76-6204.

															We have no occasion in this case, see supra at 430 U. S. 659 ,
and n. 12, to decide whether or under what circumstances corporal
punishment of a public school child may give rise to an independent
federal cause of action to vindicate substantive rights under the
Due Process Clause.

															[ Footnote 48 ] See also Terry v. Ohio, 392 U. S.
1 (1968). The reasonableness of a warrantless public
arrest may be subjected to subsequent judicial scrutiny in a civil
action against the law enforcement officer or in a suppression
hearing to determine whether any evidence seized in the arrest may
be used in a criminal trial.

															[ Footnote 49 ]

															"[P]rocedural due process rules are shaped by the risk of error
inherent in the truthfinding process as applied to the generality
of cases, not the rare exceptions. . . ." Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 344 (1976).

															[ Footnote 50 ]

															If a prior hearing, with the inevitable attendant publicity
within the school, resulted in rejection of the teacher's
recommendation, the consequent impairment of the teacher's ability
to maintain discipline in the classroom would not be
insubstantial.

															[ Footnote 51 ]

															The effect of interposing prior procedural safeguards may well
be to make the punishment more severe by increasing the anxiety of
the child. For this reason, the school authorities in Dade County
found it desirable that the punishment be inflicted as soon as
possible after the infraction. App. 449.

															[ Footnote 52 ]

															"It may be true that procedural regularity in disciplinary
proceedings promotes a sense of institutional rapport and open
communication, a perception of fair treatment, and provides the
offender and his fellow students a showcase of democracy at work.
But . . . [r]espect for democratic institutions will equally
dissipate if they are thought too ineffectual to provide their
students an environment of order in which the educational process
may go forward. . . ."

															Wilkinson, Goss v. Lopez: The Supreme Court as School
Superintendent, 1975 Sup.Ct.Rev. 25, 71-72.

															[ Footnote 53 ]

															The seriousness of the disciplinary problems in the Nation's
public schools has been documented in a recent congressional
report, Senate Committee on the Judiciary, Subcommittee to
Investigate Juvenile Delinquency, Challenge for the Third Century:
Education in a Safe Environment -- Final Report on the Nature and
Prevention of School Violence and Vandalism, 95th Cong., 1st Sess.
(Comm.Print 1977).

															[ Footnote 54 ]

															The need to maintain order in a trial courtroom raises similar
problems. In that context, this Court has recognized the power of
the trial judge "to punish summarily and without notice or hearing
contemptuous conduct committed in his presence and observed by
him." Taylor v. Hayes, 418 U. S. 488 , 418 U. S. 497 (1974), citing Ex parte Terry, 128 U.
S. 289 (1888). The punishment so imposed may be as
severe as six months in prison. See Codispoti v.
Pennsylvania, 418 U. S. 506 , 418 U. S.
513 -515 (1974); cf. Muniz v. Hoffman, 422 U. S. 454 , 422 U. S.
475 -476 (1975).

															[ Footnote 55 ]

															MR. JUSTICE WHITE's dissenting opinion offers no manageable
standards for determining what process is due in any particular
case. The dissent apparently would require, as a general rule, only
"an informal give-and-take between student and disciplinarian." Post at 430 U. S. 693 .
But the dissent would depart from these "minimal procedures" --
requiring even witnesses, counsel, and cross-examination -- in
cases where the punishment reaches some undefined level of
severity. Post at 430 U. S. 700 n. 18. School authorities are left to
guess at the degree of punishment that will require more than an
"informal give-and-take" and at the additional process that may be
constitutionally required. The impracticality of such an approach
is self-evident, and illustrates the hazards of ignoring the
traditional solution of the common law.

															We agree with the dissent that the Goss procedures will
often be, "if anything, less than a fair-minded school principal
would impose upon himself." Post at 430 U. S. 700 ,
quoting Goss, 419 U.S. at 419 U. S. 583 .
But before this Court invokes the Constitution to impose a
procedural requirement, it should be reasonably certain that the
effect will be to afford protection appropriate to the
constitutional interests at stake. The dissenting opinion's reading
of the Constitution suggests no such beneficial result and, indeed,
invites a lowering of existing constitutional standards.

															MR. JUSTICE WHITE, with whom MR JUSTICE BRENNAN, MR. JUSTICE
MARSHALL, and MR. JUSTICE STEVENS join, dissenting.

															Today the Court holds that corporal punishment in public
schools, no matter how severe, can never be the subject of the
protections afforded by the Eighth Amendment. It also holds Page 430 U. S. 684 that students in the public school systems are not
constitutionally entitled to a hearing of any sort before beatings
can be inflicted on them. Because I believe that these holdings are
inconsistent with the prior decisions of this Court and are
contrary to a reasoned analysis of the constitutional provisions
involved, I respectfully dissent. I A The Eighth Amendment places a flat prohibition against the
infliction of "cruel and unusual punishments." This reflects a
societal judgment that there are some punishments that are so
barbaric and inhumane that we will not permit them to be imposed on
anyone, no matter how opprobrious the offense. See Robinson v.
California, 370 U. S. 660 , 370 U. S. 676 (1962) (Douglas, J., concurring). If there are some punishments
that are so barbaric that they may not be imposed for the
commission of crimes, designated by our social system as the most
thoroughly reprehensible acts an individual can commit, then, a
fortiori, similar punishments may not be imposed on persons
for less culpable acts, such as breaches of school discipline.
Thus, if it is constitutionally impermissible to cut off someone's
ear for the commission of murder, it must be unconstitutional to
cut off a child's ear for being late to class. [ Footnote 2/1 ] Although there were no ears cut off
in this case, the Page 430 U. S. 685 record reveals beatings so severe that, if they were inflicted
on a hardened criminal for the commission of a serious crime, they
might not pass constitutional muster.

															Nevertheless, the majority holds that the Eighth Amendment "was
designed to protect [only] those convicted of crimes," ante at 430 U. S. 664 ,
relying on a vague and inconclusive recitation of the history of
the Amendment. Yet the constitutional prohibition is against cruel
and unusual punishments; nowhere is that prohibition limited or
modified by the language of the Constitution. Certainly, the fact
that the Framers did not choose to insert the word "criminal" into
the language of the Eighth Amendment is strong evidence that the
Amendment was designed to prohibit all inhumane or barbaric
punishments, no matter what the nature of the offense for which the
punishment is imposed.

															No one can deny that spanking of school children is "punishment"
under any reasonable reading of the word, for the similarities
between spanking in public schools and other forms of punishment
are too obvious to ignore. Like other forms of punishment, spanking
of school children involves an institutionalized response to the
violation of some official rule or regulation proscribing certain
conduct and is imposed Page 430 U. S. 686 for the purpose of rehabilitating the offender, deterring the
offender and others like him from committing the violation in the
future, and inflicting some measure of social retribution for the
harm that has been done. B We are fortunate that, in our society, punishments that are
severe enough to raise a doubt as to their constitutional validity
are ordinarily not imposed without first affording the accused the
full panoply of procedural safeguards provided by the criminal
process. [ Footnote 2/2 ] The effect
has been that

															"every decision of this Court considering whether a punishment
is 'cruel and unusual' within the meaning of the Eighth and
Fourteenth Amendments has dealt with a criminal punishment." Ante at 430 U. S. 666 .
The Court would have us believe from this fact that there is a
recognized distinction between criminal and noncriminal punishment
for purposes of the Eighth Amendment. This is plainly wrong.
"[E]ven a clear legislative classification of a statute as non-penal' would not alter the fundamental nature of a plainly
penal statute." Trop v. Dulles, 356 U. S.
86 , 356 U. S. 95 (1958) (plurality opinion). The relevant inquiry is not whether the
offense for which a punishment is inflicted has been labeled as
criminal, but whether the purpose of the deprivation is among those
ordinarily associated Page 430 U. S. 687 with punishment, such as retribution, rehabilitation, or
deterrence. [ Footnote 2/3 ] Id. at 356 U. S. 96 . Cf. Kennedy v. Mendoza-Martinez, 372 U.
S. 144 (1963)

															If this purposive approach were followed in the present case, it
would be clear that spanking in the Florida public schools is
punishment within the meaning of the Eighth Amendment. The District
Court found that

															"[c]orporal punishment is one of a variety of measures employed
in the school system for the correction of pupil behavior and the
preservation of order."

															App 146. Behavior correction and Page 430 U. S. 688 preservation of order are purposes ordinarily associated with
punishment.

															Without even mentioning the purposive analysis applied in the
prior decisions of this Court, the majority adopts a rule that
turns on the label given to the offense for which the punishment is
inflicted. Thus, the record in this case reveals that one student
at Drew Junior High School received 50 licks with a paddle for
allegedly making an obscene telephone call. Brief for Petitioners
13. The majority holds that the Eighth Amendment does not prohibit
such punishment, since it was only inflicted for a breach of school
discipline. However, that same conduct is punishable as a
misdemeanor under Florida law, Fla.Stat.Ann. § 365.18 (Supp. 177),
and there can be little doubt that, if that same "punishment" had
been inflicted by an officer of the state courts for violation of §
365.16, it would have had to satisfy the requirements of the Eighth
Amendment. C In fact, as the Court recognizes, the Eighth Amendment has never
been confined to criminal punishments. [ Footnote 2/4 ] Nevertheless, the majority adheres to its
view that any protections afforded by the Eighth Amendment must
have something to do with Page 430 U. S. 689 criminals, and it would therefore confine any exceptions to its
general rule that only criminal punishments are covered by the
Eighth Amendment to abuses inflicted on prisoners. Thus, if a
prisoner is beaten mercilessly for a breach of discipline, he is
entitled to the protection of the Eighth Amendment, while a school
child who commits the same breach of discipline and is similarly
beaten is simply not covered.

															The purported explanation of this anomaly is the assertion that
school children have no need for the Eighth Amendment. We are told
that schools are open institutions, subject to constant public
scrutiny; that school children have adequate remedies under state
law; [ Footnote 2/5 ] and that
prisoners suffer the social stigma of being labeled as criminals.
How any of these policy considerations got into the Constitution is
difficult to discern, for the Court has never considered any of
these factors in determining the scope of the Eighth Amendment.
[ Footnote 2/6 ] Page 430 U. S. 690 The essence of the majority's argument is that school children
do not need Eighth Amendment protection, because corporal
punishment is less subject to abuse in the public schools than it
is in the prison system. [ Footnote
2/7 ] However, it cannot be reasonably suggested that, just
because cruel and unusual punishments may occur less frequently
under public scrutiny, they will not occur at all. The mere fact
that a public flogging or a public execution would be available for
all to see would not render the punishment constitutional if it
were otherwise impermissible. Similarly, the majority would not
suggest that a prisoner who is placed in a minimum security prison
and permitted to go home to his family on the weekends should be
any less entitled to Eighth Amendment protections than his
counterpart in a maximum security prison. In short, if a punishment
is so barbaric and inhumane that it goes beyond the tolerance of a
civilized society, its openness to public scrutiny should have
nothing to do with its constitutional validity.

															Nor is it an adequate answer that school children may have other
state and constitutional remedies available to them. Even assuming
that the remedies available to public school students are adequate
under Florida law, [ Footnote 2/8 ]
the availability of state remedies has never been determinative of
the coverage or of the protections afforded by the Eighth
Amendment. The reason is obvious. The fact that a person may have
a Page 430 U. S. 691 state law cause of action against a public official who tortures
him with a thumbscrew for the commission of an antisocial act has
nothing to do with the fact that such official conduct is cruel and
unusual punishment prohibited by the Eighth Amendment. Indeed, the
majority's view was implicitly rejected this Term in Estelle v.
Gamble, 429 U. S. 97 (1976), when the Court held that failure to provide for the medical
needs of prisoners could constitute cruel and unusual punishment
even though a medical malpractice remedy in tort was available to
prisoners under state law. Id. at 429 U. S. 107 n. 15. D By holding that the Eighth Amendment protects only criminals,
the majority adopts the view that one is entitled to the
protections afforded by the Eighth Amendment only if he is punished
for acts that are sufficiently opprobrious for society to make them
"criminal." This is a curious holding in view of the fact that the
more culpable the offender, the more likely it is that the
punishment will not be disproportionate to the offense, and
consequently, the less likely it is that the punishment will be
cruel and unusual. [ Footnote 2/9 ]
Conversely, a public school student who is spanked for a mere
breach of discipline may sometimes have a strong argument that the
punishment does not fit the offense, depending upon the severity of
the beating, and therefore that it is cruel and unusual. Yet the
majority would afford the student no protection no matter how
inhumane and barbaric the punishment inflicted on him might be.

															The issue presented in this phase of the case is limited to
whether corporal punishment in public schools can ever be
prohibited by the Eighth Amendment. I am therefore not Page 430 U. S. 692 suggesting that spanking in the public schools is, in every
instance, prohibited by the Eighth Amendment. My own view is that
it is not. I only take issue with the extreme view of the majority
that corporal punishment in public schools, no matter how barbaric,
inhumane, or severe, is never limited by the Eighth Amendment.
Where corporal punishment becomes so severe as to be unacceptable
in a civilized society, I can see no reason that it should become
any more acceptable just because it is inflicted on children in the
public schools. II The majority concedes that corporal punishment in the public
schools implicates an interest protected by the Due Process Clause
-- the liberty interest of the student to be free from "bodily
restraint and punishment" involving "appreciable physical pain"
inflicted by persons acting under color of state law. Ante at 430 U. S. 674 .
The question remaining, as the majority recognizes, is what process
is due.

															The reason that the Constitution requires a State to provide
"due process of law" when it punishes an individual for misconduct
is to protect the individual from erroneous or mistaken punishment
that the State would not have inflicted had it found the facts in a
more reliable way. See, e.g., Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 335 ,
344 (1976). In Goss v. Lopez, 419 U.
S. 565 (1975), the Court applied this principle to the
school disciplinary process, holding that a student must be given
an informal opportunity to be heard before he is finally suspended
from public school.

															" Disciplinarians, although proceeding in utmost good faith,
frequently act on the reports and advice of others, and the
controlling facts and the nature of the conduct under challenge are
often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without
prohibitive cost or interference Page 430 U. S. 693 with the educational process." Id. at 419 U. S. 580 .
(Emphasis added.) To guard against this risk of punishing an
innocent child, the Due Process Clause requires not an "elaborate
hearing" before a neutral party, but simply "an informal
give-and-take between student and disciplinarian" which gives the
student "an opportunity to explain his version of the facts." Id. at 419 U. S. 580 , 419 U. S. 582 , 419 U. S.
584 .

															The Court now holds that these "rudimentary precautions against
unfair or mistaken findings of misconduct," id. at 419 U. S. 581 ,
are not required if the student is punished with "appreciable
physical pain," rather than with a suspension, even though both
punishments deprive the student of a constitutionally protected
interest. Although the respondent school authorities provide
absolutely no process to the student before the punishment is
finally inflicted, the majority concludes that the student is
nonetheless given due process because he can later sue the teacher
and recover damages if the punishment was "excessive."

															This tort action is utterly inadequate to protect against
erroneous infliction of punishment for two reasons. [ Footnote 2/10 ] First, under Florida law,
a student punished for an act he did not commit cannot recover
damages from a teacher "proceeding Page 430 U. S. 694 in utmost good faith . . . on the reports and advice of others," supra at 430 U. S. 692 ;
the student has no remedy at all for punishment imposed on the
basis of mistaken facts, at least as long as the punishment was
reasonable from the point of view of the disciplinarian, uninformed
by any prior hearing. [ Footnote
2/11 ] The "traditional Page 430 U. S. 695 common law remedies" on which the majority relies, ante at 430 U. S. 672 ,
thus do nothing to protect the student from the danger that
concerned the Court in Goss -- the risk of reasonable,
good faith mistake in the school disciplinary process.

															Second, and more important, 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 in a subsequent proceeding. There is every reason to
require, as the Court did in Goss, a few minutes of
"informal give-and-take between student and disciplinarian" Page 430 U. S. 696 as a "meaningful hedge" against the erroneous infliction of
irreparable injury. 419 U.S. at 419 U. S.
583 -584. [ Footnote
2/12 ]

															The majority's conclusion that a damages remedy for excessive
corporal punishment affords adequate process rests on the novel
theory that the State may punish an individual without giving him
any opportunity to present his side of the story, as long as he can
later recover damages from a state official if he is innocent. The
logic of this theory would permit a State that punished speeding
with a one-day jail sentence to make a driver serve his sentence
first without a trial and then sue to recover damages for wrongful
imprisonment. [ Footnote 2/13 ]
Similarly, the State could finally take away a prisoner's good-time
credits for alleged disciplinary infractions and require him to
bring a damages suit after he was eventually released. There is no
authority for this theory, nor does the majority purport to find
any, [ Footnote 2/14 ] in the
procedural due process Page 430 U. S. 697 decisions of this Court. Those cases have

															"consistently held that some kind of hearing is required at
some time before a person is finally deprived of his property
interests . . . , [and that] a person's liberty is equally
protected. . . ." Wolff v. McDonnell, 418 U. S. 539 , 418 U. S.
557 -558 (1974). (Emphasis added.)

															The majority attempts to support its novel theory by drawing an
analogy to warrantless arrests on probable cause, which the Court
has held reasonable under the Fourth Amendment. United States
v. Watson, 423 U. S. 411 (1976). This analogy fails for two reasons. First, the particular
requirements of the Fourth Amendment, rooted in the "ancient common
law rule[s]" regulating police practices, id. at 423 U. S. 418 ,
must be understood in the context of the criminal justice system
for which that Amendment was explicitly tailored. Thus, in Gerstein v. Pugh, 420 U. S. 103 (1975), the Court, speaking through MR. JUSTICE POWELL, rejected
the argument that procedural protections required in Goss and other due process Page 430 U. S. 698 cases should be afforded to a criminal suspect arrested without
a warrant.

															"The Fourth Amendment was tailored explicitly for the criminal
justice system, and its balance between individual and public
interests always has been thought to define the 'process that is
due' for seizures of person or property in criminal cases,
including the detention of suspects pending trial. . . . Moreover,
the Fourth Amendment probable cause determination is, in fact, only
the first stage of an elaborate system, unique in jurisprudence,
designed to safeguard the rights of those accused of criminal
conduct. The relatively simple civil procedures (e.g., prior
interview with school principal before suspension) presented in the
[procedural due process] cases cited in the concurring opinion are
inapposite and irrelevant in the wholly different context of the
criminal justice system. " Id. at 420 U. S. 125 n. 27. (Emphasis in last sentence added.) While a case dealing with
warrantless arrests is perhaps not altogether "inapposite and
irrelevant in the wholly different context" of the school
disciplinary process, such a case is far weaker authority than
procedural due process cases such as Goss v. Lopez, 419 U. S. 565 (1975), that deal with deprivations of liberty outside the criminal
context.

															Second, contrary to the majority's suggestion, ante at 430 U. S. 680 n. 48, the reason that the Court has upheld warrantless arrests on
probable cause is not because the police officer's assessment of
the facts "may be subjected to subsequent judicial scrutiny in a
civil action against the law enforcement officer or in a
suppression hearing. . . ." The reason that the Court has upheld
arrests without warrants is that they are the "first stage of an
elaborate system" of procedural protections, Gerstein v. Pugh,
supra at 420 U. S. 125 n. 27, and that the State is not free to continue the deprivation
beyond this first stage without procedures. The Constitution
requires the State to provide Page 430 U. S. 699 "a fair and reliable determination of probable cause" by a
judicial officer prior to the imposition of " any significant
pretrial restraint of liberty " other than "a brief period of
detention to take the administrative steps incident to [a
warrantless] arrest." Id. at 420 U. S. 114 , 420 U. S. 125 .
(Footnote omitted; emphasis added.) This "practical compromise" is
made necessary because

															"requiring a magistrate's review of the factual justification
prior to any arrest . . . would constitute an intolerable handicap
for legitimate law enforcement," id. at 420 U. S. 113 ;
but it is the probable cause determination prior to any significant
period of pretrial incarceration, rather than a damages action or
suppression hearing, that affords the suspect due process.

															There is, in short, no basis in logic or authority for the
majority's suggestion that an action to recover damages for
excessive corporal punishment "afford[s] substantially greater
protection to the child than the informal conference mandated by Goss. " [ Footnote 2/15 ]
The majority purports to follow the settled principle that what
process is due depends on

															"'the risk of an erroneous deprivation of [the protected]
interest . . . and the probable value, if any, of additional or
substitute procedural safeguards;' [ Footnote 2/16 ]"

															it recognizes, as did Goss, the risk of error in the
school disciplinary process [ Footnote
2/17 ] and concedes that "the child has a strong interest in
procedural safeguards that minimize the risk of wrongful punishment
. . . ," ante at 430 U. S.
676 ; Page 430 U. S. 700 but it somehow concludes that this risk is adequately reduced by
a damages remedy that never has been recognized by a Florida court,
that leaves unprotected the innocent student punished by mistake,
and that allows the State to punish first and hear the student's
version of events later. I cannot agree.

															The majority emphasizes, as did the dissenters in Goss, that even the "rudimentary precautions" required by that decision
would impose some burden on the school disciplinary process. But
those costs are no greater if the student is paddled, rather than
suspended; the risk of error in the punishment is no smaller; and
the fear of "a significant intrusion" into the disciplinary
process, ante at 430 U. S. 682 ( cf. Goss, supra at 419 U. S. 585 (POWELL, J., dissenting)), is just as exaggerated. The
disciplinarian need only take a few minutes to give the student

															"notice of the charges against him and, if he denies them, an
explanation of the evidence the authorities have and an opportunity
to present his side of the story."

															419 U.S. at 419 U. S. 581 .
In this context, the Constitution requires, "if anything, less than
a fair-minded school principal would impose upon himself" in order
to avoid injustice. [ Footnote
2/18 ] Id. at 419 U. S.
583 .

															I would reverse the judgment below.

															[ Footnote 2/1 ]

															There is little reason to fear that, if the Eighth Amendment is
held to apply at all to corporal punishment of school children, all
paddlings, however moderate, would be prohibited. Jackson v.
Bishop, 404 F.2d 571 (CA8 1968), held that any paddling or
flogging of prisoners, convicted of crime and serving prison terms,
violated the cruel and unusual punishment ban of the Eighth
Amendment. But aside from the fact that Bishop has never
been embraced by this Court, the theory of that case was not that
bodily punishments are intrinsically barbaric or excessively
severe, but that paddling of prisoners is "degrading to the
punisher and to the punished alike." Id. at 580. That
approach may be acceptable in the criminal justice system, but it
has little if any relevance to corporal punishment in the schools,
for it can hardly be said that the use of moderate paddlings in the
discipline of children is inconsistent with the country's evolving
standards of decency.

															On the other hand, when punishment involves a cruel, severe
beating or chopping off an ear, something more than merely the
dignity of the individual is involved. Whenever a given criminal
punishment is "cruel and unusual" because it is inhumane or
barbaric, I can think of no reason why it would be any less
inhumane or barbaric when inflicted on a school child, as
punishment for classroom misconduct.

															The issue in this case is whether spankings inflicted on public
school children for breaking school rules is "punishment," not
whether such punishment is "cruel and unusual." If the Eighth
Amendment does not bar moderate spanking in public schools, it is
because moderate spanking is not "cruel and unusual," not because
it is not "punishment" as the majority suggests.

															[ Footnote 2/2 ]

															By no means is it suggested that just because spanking of school
children is "punishment" within the meaning of the Cruel and
Unusual Punishments Clause, the school disciplinary process is in
any way "criminal," and therefore subject to the full panoply of
criminal procedural guarantees. See 430 U.
S. infra. Ordinarily, the conduct for which
school children are punished is not sufficiently opprobrious to be
called "criminal" in our society, and even violations of school
disciplinary rules that might also constitute a crime, see
infra at 430 U. S. 688 ,
are not subject to the criminal process. See Baxter v.
Palmigiano, 425 U. S. 308 (1976), where the Court held that persons who violate prison
disciplinary rules are not entitled to the full panoply of criminal
procedural safeguards, even if the rule violation might also
constitute a crime.

															[ Footnote 2/3 ]

															The majority cites Trop as one of the cases that "dealt
with a criminal punishment," but neglects to follow the analysis
mandated by that decision. In Trop, the petitioner was
convicted of desertion by a military court-martial and sentenced to
three years at hard labor, forfeiture of all pay and allowances,
and a dishonorable discharge. After he was punished for the offense
he committed, petitioner's application for a passport was turned
down. Petitioner was told that he had been deprived of the "rights
of citizenship" under § 401(g) of the Nationality Act of 1940
because he had been dishonorably discharged from the Armed Forces.
The plurality took the view that denationalization in this context
was cruel and unusual punishment prohibited by the Eighth
Amendment.

															The majority would have us believe that the determinative factor
in Trop was that the petitioner had been convicted of
desertion; yet there is no suggestion in Trop that the
disposition of the military court-martial had anything to do with
the decision in that case. Instead, while recognizing that the
Eighth Amendment extends only to punishments that are penal in
nature, the plurality adopted a purposive approach for determining
when punishment is penal.

															"In deciding whether or not a law is penal, this Court has
generally based its determination upon the purpose of the statute.
If the statute imposes a disability for the purposes of punishment
-- that is, to reprimand the wrongdoer, to deter others, etc. -- it
has been considered penal. But a statute has been considered
nonpenal if it imposes a disability not to punish, but to
accomplish some other legitimate governmental purpose."

															356 U.S. at 356 U. S. 96 (footnotes omitted). Although the quoted passage is taken from the
plurality opinion of Mr Chief Justice Warren, joined by three other
Justices, MR. JUSTICE BRENNAN, in a concurring opinion, adopted a
similar approach in concluding that § 401(g) was beyond the power
of Congress to enact.

															[ Footnote 2/4 ] Ante at 430 U. S. 669 .
In Estelle v. Gamble, 429 U. S. 97 (1976), a case decided this Term, the Court held that "deliberate
indifference to the medical needs of prisoners" by prison officials
constitutes cruel and unusual punishment prohibited by the Eighth
Amendment. Such deliberate indifference to a prisoner's medical
needs clearly is not punishment inflicted for the commission of a
crime; it is merely misconduct by a prison official. Similarly, the
Eighth Circuit has held that whipping a prisoner with a strap in
order to maintain discipline is prohibited by the Eighth Amendment. Jackson v. Bishop, 404 F.2d 571 (1968) (Blackmun, J.). See also Knecht v. Gillman, 488 F.2d 1136, 1139-1140 (CA8
1973) (injection of vomit-inducing drugs as part of aversion
therapy held to be cruel and unusual); Vann v. Scott, 467
F.2d 1235, 1241241 (CA7 1972) (Stevens, J.) (Eighth Amendment
protects runaway children against cruel and inhumane treatment,
regardless of whether such treatment is labeled "rehabilitation" or
"punishment").

															[ Footnote 2/5 ]

															By finding that bodily punishment invades a constitutionally
protected liberty interest within the meaning of the Due Process
Clause, the majority suggests that the Clause might also afford a
remedy for excessive spanking independently of the Eighth
Amendment. If this were the case, the Court's present thesis would
have little practical significance. If, rather than holding that
the Due Process Clause affords a remedy by way of the express
commands of the Eighth Amendment, the majority would recognize a
cause of action under 42 U.S.C. § 1983 for a deprivation of
"liberty" flowing from an excessive paddling, the Court's opinion
is merely a lengthy word of advice with respect to the drafting of
civil complaints.

															Petitioners in this case did raise the substantive due process
issue in their petition for certiorari, ante at 430 U. S. 659 n. 12, but consideration of that question was foreclosed by our
limited grant of certiorari. If it is probable that school children
would be entitled to protection under some theory of substantive
due process, the Court should not now affirm the judgment below,
but should amend the grant of certiorari and set this case for
reargument.

															[ Footnote 2/6 ]

															In support of its policy considerations, the only cases from
this Court cited by the majority are Morrissey v. Brewer, 408 U. S. 471 (1972), and Meachum v. Fano, 427 U.
S. 215 (1976), both cases involving prisoners' rights to
procedural due process.

															[ Footnote 2/7 ]

															There is no evidence in the record that corporal punishment has
been abused in the prison systems more often than in the public
schools. Indeed, corporal punishment is seldom authorized in state
prisons. See Jackson v. Bishop, supra at 580, where MR.
JUSTICE (then Judge) BLACKMUN noted: "[O]nly two states still
permit the use of the strap [in prisons]. Thus almost uniformly has
it been abolished." By relying on its own view of the nature of
these two public institutions, without any evidence being heard on
the question below, the majority today predicates a constitutional
principle on mere armchair speculation.

															[ Footnote 2/8 ]

															There is some doubt that the state law remedies available to
public school children are adequate. See 430
U.S. 651 fn2/11|>n. 11, infra. [ Footnote 2/9 ]

															For a penalty to be consistent with the Eighth Amendment "the
punishment must not be grossly out of proportion to the severity of
the crime." Gregg v. Georgia, 428 U.
S. 153 , 428 U. S. 173 (1976) (joint opinion of STEWART, POWELL, and STEVENS, JJ.).

															[ Footnote 2/10 ]

															Here, as in Goss v. Lopez, 419 U.
S. 565 , 419 U. S.
580 -581, n. 9 (1975), the record suggests that there may
be a substantial risk of error in the discipline administered by
respondent school authorities. Respondents concede that some of the
petitioners who were punished "denied misconduct," and that, "in
some cases, the punishments may have been mistaken. . . ." Brief
for Respondents 60-61. The Court of Appeals panel below noted
numerous instances of students punished despite claims of
innocence, 498 F.2d 248, 256-258 (CA5 1974), and was "particularly
disturbed by the testimony that whole classes of students were
corporally punished for the misconduct of a few." Id. at
268 n. 36. To the extent that the majority focuses on the incidence
of and remedies for unduly severe punishments, it fails to address
petitioners' claim that procedural safeguards are required to
reduce the risk of punishments that are simply mistaken.

															[ Footnote 2/11 ]

															The majority's assurances to the contrary, it is unclear to me
whether and to what extent Florida law provides a damages action
against school officials for excessive corporal punishment. Giving
the majority the benefit of every doubt, I think it is fair to say
that the most a student punished on the basis of mistaken
allegations of misconduct can hope for in Florida is a recovery for
unreasonable or bad faith error. But I strongly suspect that even
this remedy is not available.

															Although the majority does not cite a single case decided under
Florida law that recognizes a student's right to sue a school
official to recover damages for excessive punishment, I am willing
to assume that such a tort action does exist in Florida. I
nevertheless have serious doubts about whether it would ever
provide a recovery to a student simply because he was punished for
an offense he did not commit. All the cases in other jurisdictions
cited by the majority, ante at 430 U. S. 663 n. 28, involved allegations of punishment disproportionate to the
misconduct with which the student was charged; none of the
decisions even suggest that a student could recover by showing that
the teacher incorrectly imposed punishment for something the
student had not done. The majority appears to agree that the
damages remedy is available only in cases of punishment
unreasonable in light of the misconduct charged. It states:

															" In those cases where severe punishment is
contemplated, the available civil and criminal sanctions for
abuse . . . afford significant protection against unjustified
corporal punishment." Ante at 430 U. S. 678 .
(Emphasis added.)

															Even if the common law remedy for excessive punishment extends
to punishment that is "excessive" only in the sense that it is
imposed on the basis of mistaken facts, the school authorities are
still protected from personal liability by common law immunity.
(They are protected by statutory immunity for liability for
enforcing disciplinary rules "[e]xcept in the case of excessive
force or cruel and unusual punishment." Fla.Stat.Ann. § 232.275
(1976).) At a minimum, this immunity would protect school officials
from damages liability for reasonable mistakes made in good
faith.

															"Although there have been differing emphases and formulations of
the common law immunity of public school officials in cases of
student expulsion or suspension, state courts have generally
recognized that such officers should be protected from tort
liability under state law for all good faith, nonmalicious action
taken to fulfill their official duties." Wood v. Strickland, 420 U. S. 308 , 420 U. S. 318 (1975) (adopting this rule for § 1983 suits involving school
discipline) (footnote omitted); see id. at 420 U. S. 318 n. 9 (citing state cases). Florida has applied this rule to a
police officer's determination of probable cause to arrest; the
officer is not liable in damages for an arrest not based on
probable cause if the officer reasonably believed that probable
cause existed. Miami v. Albro, 120 So. 2d 23, 26
(Fla.Dist.Ct.App. 1960); cf. Middleton v. Fort Walton
Beach, 113 So. 2d 431 (Fla.Dist.Ct.App. 1959) (police officer
would be personally liable for intentional tort of making an arrest
pursuant to warrant he knew to be void); Wilson v. O'Neal, 118 So. 2d 101 (Fla.Dist.Ct.App. 1960) (law enforcement officer not
liable in damages for obtaining an arrest warrant on the basis of
an incorrect identification). There is every reason to think that
the Florida courts would apply a similar immunity standard in a
hypothetical damages suit against a school disciplinarian.

															A final limitation on the student's damages remedy under Florida
law is that the student can recover only from the personal assets
of the official; the school board's treasury is absolutely
protected by sovereign immunity from damages for the torts of its
agents. Buck v. McLean, 115 So. 2d 764 (Fla.Dist.Ct.App.
1959). A teacher's limited resources may deter the jury from
awarding, or prevent the student from collecting, the full amount
of damages to which he is entitled. Cf. Bonner v.
Coughlin, 517 F.2d 1311, 1319 n. 23 (CA7 1975), modified
en banc, 545 F.2d 565 (1976), cert pending, No.
76-6204 (state law remedy affords due process where no sovereign or
official immunity bars tort suit for negligence by prison
guard).

															[ Footnote 2/12 ] Cf. G. M. Leasing Corp. v. United States, 429 U.
S. 338 , 429 U. S.
351 -359 (1977). The Court there held that, in levying on
a taxpayer's assets pursuant to a jeopardy assessment, revenue
agents must obtain a warrant before searching the taxpayer's
office, but not before seizing his property in a manner that
involves no invasion of privacy. G. M. Leasing thus
reflects the principle that the case for advance procedural
safeguards (such as a magistrate's determination of probable cause)
is more compelling when the Government finally inflicts an injury
that cannot be repaired in a subsequent judicial proceeding
(invasion of privacy) than when it inflicts a temporary injury
which can be undone (seizure of property). The infliction of bodily
punishment, like the invasion of privacy, presents this most
compelling case for advance procedural safeguards

															[ Footnote 2/13 ]

															To the extent that the majority attempts to find "a relevant
analogy in the criminal law" -- warrantless arrests on probable
cause -- to its holding here, ante at 430 U. S.
679 -680 (and see infra at 430 U. S.
697 -699), it has chosen the wrong analogy. If the
majority forthrightly applied its present due process analysis to
the area of criminal prosecutions, the police officer not only
could arrest a suspect without a warrant, but also could convict
the suspect without a trial and sentence him to a short jail term.
The accused would get his due process in a tort suit for false
imprisonment.

															[ Footnote 2/14 ]

															For the proposition that the need for a prior hearing is
"significantly less compelling" where the State has preserved
"common law remedies," ante at 430 U. S. 679 , 430 U. S. 678 ,
the majority cites only one case, Bonner v. Coughlin,
supra, dismissing an allegation by a prisoner that prison
guards acting under color of state law had deprived him of property
without due process of law by negligently failing to close the door
of his cell after a search, with the foreseeable consequence that
his trial transcript was stolen. The panel held that the right to
recover under state law for the negligence of state employees
provided the prisoner with due process of law. The decision is
distinguishable from the instant case on two grounds. First,
recovery was not barred by sovereign or official immunity, and the
state remedy ensured that the prisoner would be "made whole for any
loss of property." 517 F.2d at 1319, and n. 23. Cf. Regional
Rail Reorganization Act Cases, 419 U.
S. 102 , 419 U. S. 156 (1974). The point here, of course, is that the student cannot be
made whole for the infliction of wrongful punishment. Second, the
State cannot hold a pre-deprivation hearing where it does not
intend to inflict the deprivation; the best it can do to protect
the individual from an unauthorized and inadvertent act is to
provide a damages remedy. 517 F.2d at 1319 n. 25. Here, the
deprivation is intentional, and a prior hearing altogether
feasible.

															[ Footnote 2/15 ] Ante at 430 U. S. 678 n. 46.

															[ Footnote 2/16 ] Ante at 430 U. S. 675 ,
quoting Mathews v. Eldridge, 424 U.
S. 319 , 424 U. S. 335 (1976).

															[ Footnote 2/17 ] Ante at 430 U. S. 676 ,
quoting Goss, 419 U.S. at 419 U. S.
579 -580. Elsewhere in its opinion the majority asserts
that the risk of error is "typically insignificant" because
"paddlings are usually inflicted in response to conduct directly
observed by teachers in their presence." Ante at 430 U. S.
677 -678. But it cites no finding or evidence in the
record for this assertion, and there is no such restriction in the
statute or regulations authorizing corporal punishment. See
ante at 430 U. S. 655 n. 6, 430 U. S. 656 n. 7. Indeed, the panel below noted specific instances in which
students were punished by an assistant to the principal who was not
present when the alleged offenses were committed. 498 F.2d at 257,
259.

															[ Footnote 2/18 ]

															My view here expressed that the minimal procedures of Goss are required for any corporal punishment implicating
the student's liberty interest is, of course, not meant to imply
that this minimum would be constitutionally sufficient no matter
how severe the punishment inflicted. The Court made this
reservation explicit in Goss by suggesting that more
elaborate procedures such as witnesses, counsel, and
cross-examination might well be required for suspensions longer
than the 10-day maximum involved in that case. 419 U.S. at 419 U. S.
583 -584. A similar caveat is appropriate here.

															MR. JUSTICE STEVENS, dissenting.

															MR. JUSTICE WHITE's analysis of the Eighth Amendment issue is, I
believe, unanswerable. I am also persuaded that his analysis of the
procedural due process issue is correct. Notwithstanding my
disagreement with the Court's holding Page 430 U. S. 701 on the latter question, my respect for MR. JUSTICE POWELL's
reasoning in 430 U. S. The constitutional prohibition of state deprivations of life,
liberty, or property without due process of law does not, by its
express language, require that a hearing be provided before any
deprivation may occur. To be sure, the timing of the process may be
a critical element in determining its adequacy -- that is, in
deciding what process is due in a particular context. Generally,
adequate notice and a fair opportunity to be heard in advance of
any deprivation of a constitutionally protected interest are
essential. The Court has recognized, however, that the wording of
the command that there shall be no deprivation "without" due
process of law is consistent with the conclusion that a
post-deprivation remedy is sometimes constitutionally sufficient.
[ Footnote 3/1 ]

															When only an invasion of a property interest is involved, there
is a greater likelihood that a damages award will make a person
completely whole than when an invasion of the individual's interest
in freedom from bodily restraint and punishment has occurred. In
the property context, therefore, frequently a post-deprivation
state remedy may be all the process that the Fourteenth Amendment
requires. It may also be true -- although I do not express an
opinion on the point -- that an adequate state remedy for
defamation may satisfy the due process requirement when a State has
impaired an individual's interest in his reputation. On that
hypothesis, the Court's analysis today gives rise to the thought
that Paul v. Davis, 424 U. S. 693 , may
have been correctly decided on an incorrect rationale. Perhaps the
Court will one day Page 430 U. S. 702 agree with MR. JUSTICE BRENNAN s appraisal of the importance of
the constitutional interest at stake in id. at 424 U. S.
720 -723, 424 U. S. 734 (dissenting opinion), and nevertheless conclude that an adequate
state remedy may prevent every state-inflicted injury to a person's
reputation from violating 42 U.S.C. § 1983. [ Footnote 3/2 ]

															[ Footnote 3/1 ] Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 ; Fuentes v. Shevin, 407 U. S. 67 , 407 U. S. 82 , 407 U. S. 90 -92; Ewing v. Mytinger & Casselberry, 339 U.
S. 594 , 339 U. S.
598 -600; Phillips v. Commissioner, 283 U.
S. 589 , 283 U. S.
595 -599; Lawton v. Steele, 152 U.
S. 133 , 152 U. S.
140 -142; cf. Gerstein v. Pugh, 420 U.
S. 103 , 420 U. S.
113 -114.

															[ Footnote 3/2 ] Cf. Bonner v. Coughlin, 517 F.2d 1311, 1318-1320 (CA7
1975), modified en banc, 545 F.2d 565 (1976), cert.
pending, No. 76-6204; see also Judge Swygert's
thoughtful opinion, id. at 569-578.

Summary:
Here is a summary of the Ingraham v. Wright case:

The U.S. Supreme Court ruled that the Cruel and Unusual Punishments Clause of the Eighth Amendment does not apply to disciplinary corporal punishment in public schools. The Court also held that prior notice and hearing are not required before imposing corporal punishment, as authorized and limited by common law. The case involved pupils in a Florida junior high school who filed a lawsuit against school officials, alleging that they were subjected to excessively harsh disciplinary corporal punishment. The Court's decision considered the historical context of the Eighth Amendment and the safeguards provided by public school settings and common law constraints.