Yesterday the Dawg addressed the biennial effort by a legislator to ban corporal punishment in our public schools, and I offered the safe prediction that the bill will not pass. Then I noticed that I had an email request from a Loyal Daily Dawg Reader to address liability issues that might arise in the use of corporal punishment. I’m happy to do so, as it gives me the opportunity to remind y’all that I welcome your requests. I don’t have a tip jar for you to drop in a buck or two, but I welcome a request or suggestion from any LDDR—Loyal Daily Dawg Reader.
Are there liability issues with the use of corporal punishment? Absolutely. This is one reason why some districts have chosen to prohibit it. Professional educators in Texas have extensive legal protection from personal liability. Section 22.0511 grants educators immunity from liability for any act arising from the use of judgment or discretion within the scope of employment. However, there is an exception. There is no immunity “in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.”
That “negligence” exception has been interpreted by the Texas Supreme Court to apply only when the actor is negligent in the use of force in a disciplinary situation. Bottom line: an educator does risk personal liability when using force to discipline a student. Thus there can be personal liability if the educator is 1) negligent in using force; or 2) excessive in the use of force.
Many believe that the rules are different for students with disabilities. They are not. However, when dealing with students with disabilities there is an increased likelihood that actions may be construed as negligent or excessive.
Corporal punishment is on the way out. It’s been banned in most states and in many Texas districts. Our state law on the subject does not by itself authorize corporal punishment. Instead it permits it “If the board of trustees…adopts a policy…under which corporal punishment is permitted.” Furthermore, parents have the right to opt their child out of this practice by giving written notice to this effect. T.E.C. 37.0011(b). I’ve always thought that a better approach is to require that parents opt in before using corporal punishment.
The best way to avoid liability over corporal punishment is to not do it. The second best way is to limit corporal punishment to situations where parents have opted in by giving written consent. Then scrupulously follow policy and document the incident accurately and thoroughly. Lots of bad things can happen to an educator who paddles a student. They can be charged with child abuse or criminal assault. A civil suit is possible and could be successful since there is no immunity when physical force is used. On top of all that, there is plenty of research telling us that this ancient practice is not good for students either.
But it remains legal here in the Lone Star State, if your board policy permits it.
DAWG BONE: BEST WAY TO AVOID LIABILTY OVER THIS IS NOT TO DO IT.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: fixing HB 4545