Abstract
Tens of thousands of children, including disproportionate numbers of Black children, are hit in school every year. More than 50 percent of these students live in the Fifth Circuit states of Mississippi, Louisiana, and Texas. Decades of government data, including the Department of Education’s most recent reports, reveal that Black students receive alarmingly inequitable rates of corporal punishment, demonstrating this education practice to be a legal form of institutionalized racism.
This Article uniquely focuses on the archaic discipline practice’s effects on Black students in Fifth Circuit states. Fifth Circuit law addressing students’ rights in corporal punishment cases has developed into a constitutional wasteland. This creates a perfect storm for children, and particularly Black children, who live in a region where, statistically, they are the most likely to receive physical school punishment and the least likely to receive constitutional protection or any post-punishment relief when excessive abuse results in injuries. The court has taken the isolated position that students are not entitled to constitutional protection for excessive physical discipline if they can pursue alternative remedies in state court—an endeavor that usually fails due to layers of protective shields afforded to schools and educators under state laws. Fifth Circuit jurisprudence misconstrues Supreme Court precedent and sharply deviates from the nine other circuit courts that have found that excessive corporal punishment can violate children’s constitutional rights.
It is time for the United States Supreme Court and Congress to catch up with the rest of the industrialized world. It is time to follow the recommendations of virtually every major medical, psychological, educational, and child advocacy group to recognize a child’s basic human rights—most fundamentally, the right to go to school without fear of being hit. It is time to repudiate this harsh discipline practice administered to children based largely on their skin color and where they live. The future will not look kindly on this practice. We have a responsibility to abandon fidelity to outdated judicial decisions and antiquated laws. We must treat children according to the principles of “liberty and justice for all” they are taught to recite in school.
Recommended Citation
Shelley Ward Bennett, The Misfortune of Attending School While Black in a Fifth Circuit State, 82 Wash. & Lee L. Rev. 625 (2025).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol82/iss2/5
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