5th Circuit deals with another case involving physical discipline….

I’m guessing that the lawyers who represented S.B. thought they had a strong case. In two separate incidents their client, an 11-year old girl with autism, was slapped on the hands by a school employee. The lawyers cited a Louisiana state law that provides that “no form of corporal punishment shall be administered to a student with an exceptionality.” The law specifically includes “slapping” a student and identifies autism as an “exceptionality.”

Did the school employees violate state law? It sounds like it. But the case was brought in federal court citing violations of Section 504, the ADA and the Constitution. The lower court dismissed all claims and the 5th Circuit has now affirmed that decision.

With regard to the constitutional claims the court cited its own previous rulings that have consistently dismissed cases like this. In fact, the court has dismissed cases involving far more severe physical punishment of a student. The rationale goes like this: if state law provides a remedy for this type of conduct, you have to bring your case in state court. Corporal punishment can violate a student’s constitutional rights if it is administered in a way that is “arbitrary, capricious, or wholly unrelated to the legitimate state goal of maintaining an atmosphere conducive to learning.” But as long as the injured student can obtain recourse in state court, there is no constitutional claim to be made.

The 504 and ADA claims were dismissed due to the absence of any indication that the school employees slapped the little girl’s hands because of her disability. The court concluded there was no indication that the student suffered discrimination because of her disability. Instead, the court described the two incidents as involving a student who “behaved violently toward her instructors, who in turn resorted to physical discipline.”

Incident One happened when the student refused to pick up puzzle pieces and kicked at the “behavioral technician” who was helping her. The technician “slapped S.B.’s wrists and scolded her for kicking, stating ‘No, ma’am! No kicking.’”

Incident Two was similar. The student pinched the neck of the “behavioral technician” who then “grabbed S.B.’s hand and slapped the top of it, saying, ‘We do not pinch our friends!’”

The court noted that there were no facts plead from which one could infer a discriminatory motive.

It’s S.B. v. Jefferson Parish School Board, decided by the 5th Circuit on May 30, 2023. The opinion is “unpublished” in the Federal Reporter but can be found at 2023 WL 3723625.


Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: just what does “sexually relevant” mean?