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                        INGRAHAM ET AL. v. WRIGHT ET AL.
                                  No. 75-6527
                       SUPREME COURT OF THE UNITED STATES
  430 U.S. 651;  97 S. Ct. 1401;  51 L.Ed. 2d 711
Argued November 2-3, 1976    April 19, 1977;

PRIOR HISTORY:

   CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
SYLLABUS:   [***1]

   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. 664-671.

   (a) The history of the Eighth Amendment  [***2]   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. 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.
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. 672-682.
   (a) Liberty within the meaning of the Fourteenth Amendment is
implicated where public school authorities, acting under color of
state law, deliberately

PAGE   82   430 U.S. 651, *; 97 S. Ct. 1401, 51 L. Ed. 2d 711

punish a child for misconduct by restraint and infliction of
appreciable physical  [***3]   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. 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 schoolchildren.  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,"   [***4] United States v. Barnett, 376 U.S. 681, 692, the
case for administrative safeguards is significantly less compelling
than it would otherwise be.  Pp. 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. 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. 683. STEVENS, J., filed a dissenting
opinion, post, p. 700.



COUNSEL:   [***5]
   Bruce S. Rogow argued the cause for petitioners.  With him on
the briefs were Howard W. Dixon and Peter M. Siegel.

   Frank A. Howard, Jr., argued the cause and filed a brief for
respondents.  *
- - -Footnotes- - - - - - - - - - - - - - - - - -
   * Michael Nussbaum, Lucien Hilmer, Ronald G. Precup, and David
Rubin filed a brief for the National Education Assn. as amicus
curiae urging reversal.

PAGE   83    430 U.S. 651, *; 97 S. Ct. 1401,  51 L. Ed. 2d 711

   Briefs of amici curiae urging affirmance were filed by Leon
Fieldman for the National School Boards Assn.; and by Tobias Simon
and Elizabeth J. du Fresne for the United Teachers of Dade, Local
1974, AFT, AFL-CIO.

   Gertrude M. Bacon filed a brief for the American Psychological
Association Task Force on the Rights of Children and Youths as
amicus curiae.

 - - - -End Footnotes- - - - - - - - - - - - - - - - -
JUDGES:

   Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell,
Rehnquist, Stevens

OPINIONBY:

   POWELL

OPINION:   [*653]      [**1403]   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;
 [***6]   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.  n1 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
[*654]   injunctive relief filed on behalf of all students in the
Dade County schools.  n2 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 [***7]   L. Whigham
(superintendent   [**1404]   of the Dade County School System).  n3

 - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n1 As Ingraham and Andrews were minors, the complaint was filed
in the names of Eloise Ingraham, James' mother, and Willie Everett,
Roosevelt's father.

PAGE  84          430 U.S. 651, *654; 97 S. Ct. 1401, **1404;
                51 L. Ed. 2d 711

   n2 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.

   n3 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.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   Petitioners presented their evidence at a week-long trial before
the District Court.  At the close of petitioners' case, respondents
[***8]   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.  n4 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.


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n4 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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***9]

   [*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.  n5 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).  n6 The
regulation,  Dade County School Board Policy   [*656] 5144,
contained explicit directions and   [**1405]   limitations.  n7 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 [*657]   no
apparent physical injury to the student.  School authorities
    PAGE   85                   430 U.S. 651, *657; 97 S. Ct. 1401,
**1405;                                       1977 U.S. LEXIS 74,
***9; 51 L. Ed. 2d 711

viewed corporal punishment as a less drastic means of discipline
than suspension or expulsion.  Contrary to the procedural
requirements of the  [***10]   statute and regulation, teachers
often paddled students on their own authority without first
consulting the principal.  n8


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n5 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.

   n6 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
    PAGE   86                   430 U.S. 651, *657; 97 S. Ct. 1401,
**1405;                                      1977 U.S. LEXIS 74,
***10; 51 L. Ed. 2d 711

cruel and unusual punishment...." @ 232.275.

   n7 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.

   n8 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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***11]

   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 n9 requiring
medical attention and keeping him out of school for several days.
n10 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.n11

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n9 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."

PAGE   87       430 U.S. 651, *657; 97 S. Ct. 1401, **1405;
                1977 U.S. LEXIS 74, ***11; 51 L. Ed. 2d 711

   n10 App. 3-4, 18-20, 68-85, 129-136.

   n11 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 Appeas, 498 F. 2d, at 257-259.

 - - -End Footnotes- - - - - - - - - - - - - - - - -[***12]

   [*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   [**1406]   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  [***13]   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: S

   "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.I

   The court also rejected the petitioners' substantive
contentions.  The Eighth Amendment, in the court's view, was simply
inapplicable to corporal punishment in public   [*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  [***14] 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

PAGE   88   430 U.S. 651, *659; 97 S. Ct. 1401, **1406;
            1977 U.S. LEXIS 74, ***14; 51 L. Ed. 2d 711

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. n12

 - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n12 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.

- - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   II   [***15]

   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, 535 (1968) (plurality opinion), and to the ["attitudes]
which our society has traditionally taken." Id., at 531. So, too,
in defining the requirements   [*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, 692 (1964), and to "traditionalideas of fair procedure." Greene v. McElroy, 360 U.S. 474, 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.  n13
It has survived the transformation of primary   [**1407]   and
secondary education from the colonials' reliance on optional
private arrangements to our present system of compulsory education
and dependence on public schools.  n14 Despite the general
abandonment of corporal punishment  [***16]   as a means of
punishing criminal offenders, n15 the practice continues to play a
role in the public education of schoolchildren in most parts of the
country.  n16 Professional and public opinion is sharply divided
on the practice, n17 and has been for more than [*661]   a century.
n18 Yet we can discern no trend toward its elimination.

- - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n13 See H. Falk, Corporal Punishment 11-48 (1941); N. Edwards &
H. Richey, The School in the American Social Order 115-116 (1947).

   n14 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

PAGE   89      430 U.S. 651, *661; 97 S. Ct. 1401, **1407;
               1977 U.S. LEXIS 74, ***16; 51 L. Ed. 2d 711

attendance laws were in force in all the States.  See Brown v.
Board of Education, 347 U.S. 483, 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, 226, and n. 15
(1972).

   n15 See Jackson v. Bishop, 404 F. 2d 571, 580 (CA8 1968); Falk,
supra, at 85-88.

   n16 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).

   n17 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.

   n18 See Falk, supra, 66-69; cf.  Cooper v. McJunkin, 4 Ind. 290
(1853).

- - - - -  -End Footnotes- - - - - - - - - - - - - - - - -[***17]

   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.  n19 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.  n20

- - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n19 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).

   n20 See cases cited n. 28, infra. The criminal codes of many
States include provisions explicitly recognizing the teacher's
common-law privilege to

    PAGE   90           430 U.S. 651, *661; 97 S. Ct. 1401, **1407;
                        1977 U.S. LEXIS 74, ***17; 51 L. Ed. 2d 711

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).

-End Footnotes- - - - - - - - - - - - - - - - -[***18]

   [*662]   Although the early cases viewed the authority of the
teacher as deriving from the parents, n21 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   [**1408]   Torts @
3.20, p. 292 (1956).  n22 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).

- - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n21 See Proehl, supra, at 726, and n. 13.

   n22 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).

- - - -End Footnotes- - - - - - - - - - - - - - - - -[***19]

   Of the 23 States that have addressed the problem through
legislation, 21 have authorized the moderate use of corporal
punishment in public schools.  n23 Of these States only a few
[*663]   have elaborated on the common-law test of reasonableness,
typically providing for approval or notification of the child's
parents, n24 or for infliction of punishment only by the principal
n25 or in the presence of an adult witness.  n26 Only two States,
Massachusetts and New Jersey, have prohibited all corporal
punishment in their public schools.  n27 Where the legislatures
have not acted, the state courts have uniformly preserved the
common-law rule permitting teachers to use reasonable force in
disciplining children in their charge.  n28

 - - -Footnotes- - - - - - - - - - - - - - - - - -
   n23 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.  @@

PAGE   91    430 U.S. 651, *663; 97 S. Ct. 1401, **1408;
              1977 U.S. LEXIS 74, ***19; 51 L. Ed. 2d 711

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.  @ 20-8.1-5-2 (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).
   n24 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).

   n25 Md. Ann. Code, Art. 77, @ 98B (1975).

   n26 Fla. Stat. Ann.  @ 232.27 (1977); Haw. Rev. Stats.  @ 298-16
(1975 Supp.); Mont. Rev. Codes Ann.  @ 75-6109 (1971).

   n27 Mass. Gen. Laws Ann., c. 71, @ 37G (Supp. 1976); N.J. Stat.
Ann.  @ 18A: 6-1 (1968).

   n28 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.

  - - -End Footnotes- - - - - - - - - - - - - - - - -[***20]

    Against this background of historical and contemporary approval
of reasonable corporal punishment, we turn to the constitutional
questions before us.

   [*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
[**1409]   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

PAGE   92     430 U.S. 651, *664; 97 S. Ct. 1401, **1409;
              1977 U.S. LEXIS 74, ***20; 51 L. Ed. 2d 711

as a means of maintaining discipline in public schools.

   A

   The history of the Eighth Amendment is well known.n29 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.   [***21]   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, n30 or to the perjury prosecution of Titus Oates in
the same year.  n31 In   [*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: n32 S

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

- - - - -- - -Footnotes- - - - - - - - - - - - - - - - - -
   n29 See Gregg v. Georgia, 428 U.S. 153, 168-173 (1976) (joint
opinion of STEWART, POWELL, and STEVENS, JJ.) (hereinafter joint
opinion); Furman v. Georgia, 408 U.S. 238, 316-328 (1972)
(MARSHALL, J., concurring); Granucci, "Nor Cruel and Unusual
Punishments Inflicted:" The Original Meaning, 57 Calif. L. Rev. 839
(1969).

   n30 See I. Brant, The Bill of Rights 155 (1965).

   n31 See Granucci, supra, at 852-860.

   n32 Id., at 855.

  - - -End Footnotes- - - - - - - - - - - - - - - - -[***22]

   Although the reference to "criminal cases" was eliminated from
the final draft, the preservation of a similar reference in the
preamble n33 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.  n34


-- - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n33 The preamble reads in part:

   "WHEREAS the late King James the Second, by the assistance of
divers evil counsellors, judges, and ministers employed by him, did
endeavor to subvert and extirpate... the laws and liberties of this
kingdom.
 PAGE   93    430 U.S. 651, *665; 97 S. Ct. 1401, **1409;
              1977 U.S. LEXIS 74, ***22; 51 L. Ed. 2d 711

   "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).

   n34 4 W. Blackstone, Commentaries * 297 (bail), * 379 (fines and
other punishments).


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   The Americans who adopted the language  [***23]   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, 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, 446-447 (1890);   [*666]   Furman v.
Georgia, 408 U.S. 238, 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.
n35 This criticism   [**1410] 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 [***24]   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 263.


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n35 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
    PAGE   94                   430 U.S. 651, *666; 97 S. Ct. 1401,
**1410;                                      1977 U.S. LEXIS 74,
***24; 51 L. Ed. 2d 711

let them loose; you do more - you depart from the genius of your
country...." 3 id., at 447.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***25]

   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.    [*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.   [***26]   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 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   [*668]
finding the Eighth Amendment inapplicable.  Thus, in Fong Yue Tingv. United  [***27]   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 730; see Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v. Adams,
228 U.S. 585 [**1411]   (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 81,
quoting Green v. United States, 356 U.S. 165, 197 (1958)
(dissenting opinion).  n36
    PAGE   95                   430 U.S. 651, *668; 97 S. Ct. 1401,
**1411;                                      1977 U.S. LEXIS 74,
***27; 51 L. Ed. 2d 711



- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n36 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 171 (joint opinion); see,
e.g., Trop v. Dulles, 356 U.S. 86, 100-101 (1958) (plurality
opinion); Weems v. United States, 217 U.S. 349, 373, 378 (1910).
This reliance is misplaced.Our Eighth Amendment decisions have
referred to "evolving standards of decency", Trop v. Dulles, supra,
at 101, only in determining whether criminal punishments are "cruel
and unusual" under the Amendment.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***28]

   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 [*669]   to criminals than to schoolchildren.It
would be anomalous, they say, if schoolchildren 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, n37 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.


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n37 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.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***29]

   The prisoner and the schoolchild stand in wholly different
circumstances, separated by the harsh facts of criminal conviction
and incarceration.  The
    PAGE   96                   430 U.S. 651, *669; 97 S. Ct. 1401,
**1411;                                      1977 U.S. LEXIS 74,
***29; 51 L. Ed. 2d 711

prisoner's conviction entitles the State to classify him as 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, 482
(1972); see Meachum v. Fano, 427 U.S. 215, 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. n38 Even so, the protection
 [**1412]   afforded   [*670]   by the Eighth Amendment is limited.
After incarceration, only the "'unnecessary and wanton infliction
of pain,'" Estelle v. Gamble, 429 U.S., at 103, quoting Gregg v.
Georgia, 428 U.S., at 173, constitutes cruel and unusual punishment
forbidden by the Eighth Amendment.


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n38 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 may 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).


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***30]

   The schoolchild 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
Part   [***31]   II, 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.  n39


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - -
    PAGE   97                   430 U.S. 651, *670; 97 S. Ct. 1401,
**1412;                                      1977 U.S. LEXIS 74,
***31; 51 L. Ed. 2d 711

   n39 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 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 169-173 (joint opinion); Furman v. Georgia, 408 U.S.,
at 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 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
schoolchildren.  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, 547-548 (1968) (opinion
of Black, J.).


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***32]

   [*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.  n40


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n40 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, 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 162-167, 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
    PAGE   98                   430 U.S. 651, *671; 97 S. Ct. 1401,
**1412;                                      1977 U.S. LEXIS 74,
***32; 51 L. Ed. 2d 711

punishment without such an adjudication, the pertinent
constitutional guarantee is the Due Process Clause of the
Fourteenth Amendment.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***33]

   [*672]     [**1413]   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 481; Board of Regents v. Roth,
408 U.S. 564, 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

   "[The] range of interests protected by procedural due process is
not infinite." Board of Regents v. Roth, supra, at 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   [***34]   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 570-571.

   The Due Process Clause of the Fifth Amendment, later
incorporated into the Fourteenth, was intended to give Americans
[*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, 399 (1923); see Dent v. West
Virginia, 129 U.S. 114, 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.
n41


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n41 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,"
PAGE   99     430 U.S. 651, *673; 97 S. Ct. 1401, **1413;
            1977 U.S. LEXIS 74, ***34; 51 L. Ed. 2d 711

4 Harv. L. Rev. 365, 372-373 (1891).
- - - - -End Footnotes- - - - - - - - - - - - - - - - -[***35]

   While the contours of this historic liberty interest in the
context of our federal system of government have not been defined
precisely, n42 they always have been  thought   [**1414]   to
encompass   [*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.


 - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n42 See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)
(sterilization); Jacobson v. Massachusetts, 197 U.S. 11 (1905)
(vaccination); Union Pacific R. Co. v. Botsford, 141 U.S. 250,
251-252 (1891) (physical examinations); cf. ICC v. Brimson, 154
U.S. 447, 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, 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, 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, 604 n. 32 (1977). Petitioners do not contend that the Fourth
Amendment applies, according to its terms, to corporal punishment
in public school.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***36]

   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.  n43

- - - - -  -Footnotes- - - - - - - - - - - - - - - - - -
   n43 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

 PAGE  100       430 U.S. 651, *674; 97 S. Ct. 1401, **1414;
                 1977 U.S. LEXIS 74, ***36; 51 L. Ed. 2d 711

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, 225-227 (1976).

- - - -End Footnotes- - - - - - - - - - - - - - - - -[***37]

   B

   "[The] question remains what process is due." Morrissey v.
Brewer, supra, at 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.  n44 But here we deal with a
punishment -paddling - within that tradition,   [*675]   and the
question is whether the common-law remedies are adequate to afford
due process.  S

   "'[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, 162-163 (1951) (Frankfurter, J., concurring).

- - -Footnotes- - - - - - - - - - - - - - - - - -
   n44 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 317-318; cf. Breed v. Jones, 421 U.S. 519, 528-529 (1975).


- - - - -End Footnotes- - - - - - - - - - - - - - - - -[***38]

   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, 335 (1976). Cf. Arnett
v. Kennedy, 416 U.S. 134, 167-168 (1974) (POWELL, J., concurring).
PAGE  101       430 U.S. 651, *675; 97 S. Ct. 1401, **1414;
              1977 U.S. LEXIS 74, ***38; 51 L. Ed. 2d 711

   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  [***39]   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   [*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 Part II, supra. It represents "the balance struck by this
country," Poe v. Ullman, 367 U.S. 497, 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, 579-580  [***40]   (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   [*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  [***41] 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.n45

  - - - -Footnotes- - - - - - - - - - - - - - - - -
 PAGE  102      430 U.S. 651, *677; 97 S. Ct. 1401, **1414;
             1977 U.S. LEXIS 74, ***41; 51 L. Ed. 2d 711

   n45 See supra, at 655-657, 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 694 n. 11, 700.  But the absence of
reported Florida decisions hardly suggests that no remedy is
available.  Rather, it merely confirms the commonsense judgment
that excessive corporal punishment is exceedingly rare in the
public schools.

 - - - -End Footnotes- - - - - - - - - - - - - - - - -[***42]

   [**1416]   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   [*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 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 670.  Teachers and school authorities are unlikely to
inflict corporal punishment unnecessarily or excessively when a
possible consequence  [***43]   of doing so is the institution of
civil or criminal proceedings against them.  n46

 - -Footnotes- - - - - - - - - - - - - - - - - -
   n46 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

 PAGE  103     430 U.S. 651, *678; 97 S. Ct. 1401, **1416;
                1977 U.S. LEXIS 74, ***43; 51 L. Ed. 2d 711

suspensions." Id., at 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
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
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.  - - -End Footnotes- - - - - - - - - - - - - - - - -[***44]

    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   [*679] Amendment.  See,
e.g., Board of Regents v. Roth, 408 U.S., at 569-570; Wolff v.
McDonnell, 418 U.S. 539, 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.  n47

-- - - -Footnotes- - - - - - - - - - - - - - - - - -
   n47 "[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 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.


- - - - -End Footnotes- - - - - - - - - - - - - - - - -[***45]

   There is a relevant analogy in the criminal law.  Although the
Fourth Amendment   [**1417]   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

  PAGE  104     430 U.S. 651, *679; 97 S. Ct. 1401, **1417;
             1977 U.S. LEXIS 74, ***45; 51 L. Ed. 2d 711

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; see id., at 429 (POWELL, J.,concurring). Despite the distinct possibility that a police officer
may improperly assess the facts and thus unconstitutionally deprive
an individual of   [*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.  n48 There is no more
reason to depart from tradition and require advance procedural
[***46]   safeguards for intrusions on personal security to which
the Fourth Amendment does not apply.

 - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n48 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.

- - - -End Footnotes- - - - - - - - - - - - - - - - -
   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, n49 the prior hearing
petitioners seek would have to precede any paddling, however
moderate or trivial.

 - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n49 "[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, 344 (1976).

 - -End Footnotes- - - - - - - - - - - - - - - - -[***47]

   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

 PAGE  105      430 U.S. 651, *680; 97 S. Ct. 1401, **1417;
               1977 U.S. LEXIS 74, ***47; 51 L. Ed. 2d 711

classroom, may well prefer to rely on other disciplinary measures - which they may view as less effective - rather than confront the
 [*681]   possible disruption that prior notice and a hearing may
entail.  n50 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.
n51

 - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n50 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.

   n51 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. 48-49.

- - - - -End Footnotes- - - - - - - - - - - - - - - - -[***48]

   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   [**1418]   insubstantial.  n52 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 580: "Events calling for discipline are
frequent occurrences and sometimes require immediate, effective
action." n53 Assessment   [*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."   [***49]   Tinker v. Des
Moines School Dist., 393 U.S. 503, 507 (1969). n54

 - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n52 "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.

 PAGE  106      430 U.S. 651, *682; 97 S. Ct. 1401, **1418;
                1977 U.S. LEXIS 74, ***49; 51 L. Ed. 2d 711

   n53 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).

   n54 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, 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, 513-515 (1974); cf. Muniz v. Hoffman, 422 U.S. 454,
475-476 (1975).

 - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***50]

   "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 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
schoolchild's substantive rights can only be regarded as 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.  n55


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n55 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 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 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 700, quoting Goss, 419 U.S., at 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
    PAGE  107                   430 U.S. 651, *682; 97 S. Ct. 1401,
**1418;                                      1977 U.S. LEXIS 74,
***50; 51 L. Ed. 2d 711

suggests no such beneficial result and, indeed, invites a lowering
of existing constitutional standards.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***51]

   [*683]     [**1419]   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.

DISSENTBY:

   WHITE; STEVENS

DISSENT: 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
[*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  [***52]   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, 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.n1 Although there were no  ears cut off in this case, the
[*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.   [***53]
    PAGE  108                   430 U.S. 651, *685; 97 S. Ct. 1401,
**1419;                                      1977 U.S. LEXIS 74,
***53; 51 L. Ed. 2d 711



- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n1 There is little reason to fear that if the Eighth Amendment
is held to apply at all to corporal punishment of schoolchildren,
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 schoolchild, 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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***54]

   Nevertheless, the majority holds that the Eighth Amendment "was
designed to protect   [**1420]   [only] those convicted of crimes,"
ante, at 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 schoolchildren 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 schoolchildren involves an institutionalized response
to the violation of some official rule or regulation proscribing
certain conduct and is imposed   [*686]   for the purpose of
rehabilitating the offender, deterring the offender and others like
him from  [***55]   committing the violation in the future, and
inflicting some measure of social retribution for the harm that has
been done.
    PAGE  109                   430 U.S. 651, *686; 97 S. Ct. 1401,
**1420;                                      1977 U.S. LEXIS 74,
***55; 51 L. Ed. 2d 711

   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.
n2 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 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, 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  [***56]
[*687]   with punishment, such as retribution, rehabilitation, or
deterrence.n3 Id., at 96.   [**1421]   Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n2 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 Part II, infra. Ordinarily,
the conduct for which schoolchildren 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 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.

   n3 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.
    PAGE  110                   430 U.S. 651, *687; 97 S. Ct. 1401,
**1421;                                      1977 U.S. LEXIS 74,
***56; 51 L. Ed. 2d 711

   "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 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.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***57]

   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   [*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.  @ 365.16 (Supp.
1977) and there can be little doubt that if that same "punishment"
 [***58]   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.  n4 Nevertheless, the
majority adheres to its view that any protections afforded by the
Eighth Amendment must have something to do with   [*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
schoolchild who commits the same breach of discipline and is
similarly beaten is simply not covered.


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - -
    PAGE  111                   430 U.S. 651, *689; 97 S. Ct. 1401,
**1421;                                      1977 U.S. LEXIS 74,
***58; 51 L. Ed. 2d 711

   n4 Ante, at 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, 1240-1241 (CA7 1972)
(Stevens, J.) (Eighth Amendment protects runaway children against
cruel and inhumane treatment, regardless of whether such treatment
is labeled "rehabilitation" or "punishment").


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***59]

   The purported explanation of this anomaly is the assertion that
schoolchildren 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; n5 and that prisoners suffer [**1422]   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.  n6


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n5 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 659 n. 12, butconsideration of that question was foreclosed by our limited grant
of certiorari.  If it is probable that schoolchildren 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.

   n6 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.

    PAGE  112                   430 U.S. 651, *689; 97 S. Ct. 1401,
**1422;                                      1977 U.S. LEXIS 74,
***59; 51 L. Ed. 2d 711


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***60]

   [*690]   The essence of the majority's argument is that
schoolchildren 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.  n7 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.


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n7 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.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***61]

   Nor is it an adequate answer that schoolchildren 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, n8 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   [*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 107 n. 15.


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - -
    PAGE  113                   430 U.S. 651, *691; 97 S. Ct. 1401,
**1422;                                      1977 U.S. LEXIS 74,
***61; 51 L. Ed. 2d 711

   n8 There is some doubt that the state-law remedies available to
public schoolchildren are adequate.  See n. 11, infra.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***62]

    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   [**1423]   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.  n9 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.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n9 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, 173 (1976) (joint
opinion of STEWART, POWELL, and STEVENS, JJ.).


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***63]

   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   [*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
674.  The question remaining, as the majority recognizes, is what
process is due.
    PAGE  114                   430 U.S. 651, *692; 97 S. Ct. 1401,
**1423;                                      1977 U.S. LEXIS 74,
***63; 51 L. Ed. 2d 711

   The reason that the Constitution requires a State to provide
"due  [***64] 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, 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.  S

   "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   [*693]   with the educational process." Id.,
at 580.  (Emphasis added.)I

   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   [***65]   his version of the facts." Id., at 580, 582,
584.

   The Court now holds that these "rudimentary precautions against
unfair or mistaken findings of misconduct," id., at 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   [**1424]
 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.  n10 First,
under Florida law, a student punished for an act he did not commit
cannot recover damages from a teacher "proceeding   [*694]   in
utmost good faith... on the reports and advice of others," supra,
at 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 [***66]   hearing.  n11 The " traditional   [*695]
 [**1425]   common-law remedies" on which the majority relies,
ante, at 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.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n10 Here, as in Goss v. Lopez, 419 U.S. 565, 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
    PAGE  115                   430 U.S. 651, *695; 97 S. Ct. 1401,
**1425;                                      1977 U.S. LEXIS 74,
***66; 51 L. Ed. 2d 711

"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.

   n11 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 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 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, 318 (1975) (adopting this rule for @ 1983 suits involving
school discipline) (footnote omitted); see id., at 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
    PAGE  116                   430 U.S. 651, *695; 97 S. Ct. 1401,
**1425;                                      1977 U.S. LEXIS 74,
***66; 51 L. Ed. 2d 711

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).


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***67]

   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"   [*696]   as a
"meaningful hedge" against the erroneous infliction of irreparable
injury.  419 U.S., at 583-584. n12


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n12 Cf. G. M. Leasing Corp. v. United States, 429 U.S. 338,
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.
 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***68]

   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.
    PAGE  117                   430 U.S. 651, *696; 97 S. Ct. 1401,
**1425;                                      1977 U.S. LEXIS 74,
***68; 51 L. Ed. 2d 711

n13 Similarly, the State could finally take away a prisoner's good-time credits for alleged disciplinary infractions and require him
to bring a damage suit after he was eventually released.  There is
no authority for this theory, nor does the majority purport to find
any, n14 in the procedural due process [*697]   decisions
[**1426]   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,
557-558 (1974). (Emphasis added.)


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n13 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 679-680 (and see infra, at
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.

   n14 For the proposition that the need for a prior hearing is
"significantly less compelling" where the State has preserved
"common-law remedies," ante, at 679, 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, 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.

 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***69]

   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 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
    PAGE  118                   430 U.S. 651, *697; 97 S. Ct. 1401,
**1426;                                      1977 U.S. LEXIS 74,
***69; 51 L. Ed. 2d 711

POWELL, rejected the argument that procedural protections required
in Goss  and other due process   [*698]   cases should be afforded
to a criminal suspect arrested without a warrant.  S

   "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   [***70]   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 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 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  [***71]   is that they are the "first
stage of an elaborate system" of procedural protections, Gerstein
v. Pugh, supra, at 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
[*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 114, 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 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.   [**1427]   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
[***72]   protection to the child than the informal conference
mandated by Goss." n15 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'"; n16 it recognizes, as did Goss, the risk of error in
the school disciplinary process n17 and concedes that "the child
has a strong interest in procedural safeguards that minimize the
risk of wrongful punishment...," ante, at 676;   [*700]   but it
somehow concludes that this risk is adequately reduced by a damages
remedy
    PAGE  119                   430 U.S. 651, *700; 97 S. Ct. 1401,
**1427;                                      1977 U.S. LEXIS 74,
***72; 51 L. Ed. 2d 711

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.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n15 Ante, at 678 n. 46.

   n16 Ante, at 675, quoting Mathews v. Eldridge, 424 U.S. 319, 335
(1976).

   n17 Ante, at 676, quoting Goss, 419 U.S., at 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 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 655 n. 6, 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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***73]

   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 682 (cf. Goss, supra, at 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 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.  n18 Id.,
at 583.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n18 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 583-584. A similar caveat is appropriate here.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***74]
    PAGE  120                   430 U.S. 651, *700; 97 S. Ct. 1401,
**1427;                                      1977 U.S. LEXIS 74,
***74; 51 L. Ed. 2d 711

   I would reverse the judgment below.

   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   [*701]   on the latter
question, my respect for MR. JUSTICE POWELL'S reasoning in Part IV-B  of his opinion for the Court prompts these comments.

   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   [**1428]   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
postdeprivation remedy is sometimes constitutionally  [***75]
sufficient.  n1


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n1 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663;
Fuentes v. Shevin, 407 U.S. 67, 82, 90-92; Ewing v. Mytinger &
Casselberry, 339 U.S. 594, 598-600; Phillips v. Commissioner, 283
U.S. 589, 595-599; Lawton v. Steele, 152 U.S. 133, 140-142; cf.
Gerstein v. Pugh, 420 U.S. 103, 113-114.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   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 postdeprivation 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
[***76]   v. Davis, 424 U.S. 693, may have been correctly decided
on an incorrect rationale.  Perhaps the Court will one day   [*702]agree with MR. JUSTICE BRENNAN'S appraisal of the importance of the
constitutional interest at stake in id., at 720-723, 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. n2

    PAGE  121                   430 U.S. 651, *702; 97 S. Ct. 1401,
**1428;                                      1977 U.S. LEXIS 74,
***76; 51 L. Ed. 2d 711

   n2 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.