In Ingraham v. Wright,1the Supreme Court cited Blackstone’s description of “moderate correction” to analyze a teacher’s paddling a student so severely that he was hospitalized.2 Over four decades after Ingraham, the nature of violence characterized as corporal punishment has changed, but its effects are no less brutal. Recently, in J.W. v. Paley,3 the Fifth Circuit affirmed the district court’s grant of summary judgment in a case where a school police officer4 repeatedly tased a dis-abled student to prevent him from exiting a school building.5 The Fifth Circuit declined to distinguish between punishment by school officials and excessive force at the hands of school police officers.6 But formalist considerations rooted in the Supreme Court’s and Fifth Circuit’s early cases on corporal punishment, as well as pragmatic considerations about the role of police in schools, warranted treating this officer differently from typical school officials.
In November 2016, seventeen-year-old Jevon Washington was enrolled at Mayde Creek High School in Texas’s Katy Independent School District.7 Washington had diagnosed “intellectual disabilities and emotional disturbance,” which impacted his daily functioning, communication, and emotional regulation.8 He therefore received accommodations, including access to a designated room (his “chill out” room) to regulate his emotions as needed.9On the day in question, another student allegedly ridiculed Washington during a card game.10 According to a school staffer’s unsworn statement, Washington became angry, punched the other student, and left the classroom.11 He then tried to go to his chill out room to calm down.12 Upon seeing the room in use, Washington became more agitated and headed toward the school exit.13 Several school officials intercepted him there.14
Elvin Paley, an officer in the school district’s police force, arrived at the exit soon thereafter, and his body camera captured the ensuing interaction.15 Washington told school staff that he wanted to walk home to calm down, and he attempted to open the door as a security guard blocked his exit.16 At this point, Paley “pushed up against” Washington and told him, “[y]ou are not going to get through this door, just relax.”17 Paley stepped aside while another school police officer and the security guard attempted to hold Washington inside the doorframe.18 Paley instructed the adults to “let [Washington] go.”19 As Washington walked through the door, Paley fired his taser.20 Washington fell to his knees, and Paley continued to tase him for approximately fifteen seconds, even as Washington “was lying facedown on the ground and not struggling.”21Following the tasing, Paley told Washington, “I did not want to tase you, but you do not run shit around here, you understand?”22
The altercation severely traumatized Washington. He urinated, defecated, and vomited on himself after being tased; was handcuffed while a school nurse and paramedics were summoned; and was later transported to a hospital.23 He thought he was under arrest, struggled to breathe, and “felt like he was going to die.”24 In the aftermath, Washington stayed home from school for several months and “suffer[ed] from intense anxiety and PTSD.”25
Washington26sued the school district and Paley in the U.S. District Court for the Southern District of Texas, asserting claims under the Americans with Disabilities Act of 199027 (ADA), section 504 of the Rehabilitation Act of 1973,28and 42 U.S.C. § 1983 (for use of excessive force in violation of the Fourth Amendment and for violations of his Fourteenth Amendment rights, including his substantive due process right to bodily integrity).29
The district court denied Paley’s motion for summary judgment on the Fourth Amendment claim.30 On interlocutory appeal, the Fifth Circuit ruled Paley had qualified immunity on that claim, and granted him summary judgment.31 The district court also granted the defendants’ motion for summary judgment on the ADA and section 504 claims, and the other constitutional claims.32 In evaluating the ADA and section 504 claims, the district court held that the Individuals with Disabilities Education Act33(IDEA) requires plaintiffs seeking relief that is also available under the IDEA to exhaust their administrative remedies under that statute prior to bringing those claims in court.34 Washington had filed a petition pursuant to the IDEA procedures with a state agency, but he had not exhausted those procedures, and the IDEA therefore precluded the district court from hearing the ADA and section 504 claims.35 Washington appealed the district court’s grants of summary judgment on the ADA, section 504, and Fourteenth Amendment substantive due process claims.36
The Fifth Circuit then affirmed. Writing for the majority,37 Judge Willett held that the IDEA exhaustion requirement was inapplicable38 but agreed with the district court that Washington’s claims failed on the merits.39 Section 504 and the ADA both prohibit discriminating against individuals with disabilities or otherwise excluding them from public programs, services, or activities.40 The Fifth Circuit’s liability standards are identical for both statutes and require a showing of intentional discrimination.41Washington argued two theories over the course of the litigation.42 First, he contended that Paley failed to accommodate his disability.43 Second, he posited that because of his disability, Paley refused to let him leave the school by using a taser, and that Paley would not have similarly restrained a nondisabled student.44 The majority rejected both theories, finding Washington had not “create[d] a genuine dispute on the issue of whether Officer Paley intentionally discriminated against [Washington] by reason of his disability” and had instead shown only differential treatment at most.45
Last, Judge Willett held that the Fifth Circuit’s precedent in Fee v. Herndon46 was controlling, and Washington therefore could not state a substantive due process claim for excessive corporal punishment.47 Under Fee, students may not state claims for excessive corporal punishment if the state offers alternative legal remedies.48 Whether an act constitutes corporal punishment turns on “whether the school official intended to discipline the student for the purpose of maintaining order and respect or to cause harm to the student for no legitimate pedagogical purpose.”49This standard makes the Fifth Circuit the only circuit that has weighed in on the issue to deny any constitutional remedy for excessive school corporal punishment.50While Washington had argued that the tasing was not corporal punishment because Paley was “not trying to punish or discipline [Washington] for an infraction,” the court held that Paley was “intend[ing] to assert order or control over [Washington] for a legitimate pedagogical purpose” of “maintaining order.”51 Because Texas provides adequate state law remedies,52the constitutional claim was precluded.
Judge Graves dissented in part. He agreed with the majority that Washington’s IDEA claims were not subject to an exhaustion requirement.53 But he argued that the ADA and section 504 claims were viable on the merits and that a sufficient dispute of material fact existed to overcome a motion for summary judgment.54
J.W. v. Paley is the first binding Fifth Circuit case to analyze a school police officer’s use of force as corporal punishment55 — and therefore the first to accord school police the circuit’s generous legal treatment of corporal punishment. In its decision, the panel did not distinguish between the constitutionality of corporal punishment by school officials and excessive force at the hands of school police officers. As a result, school police officers can find cover under the court’s relaxed definition of what constitutes a legitimate pedagogical or educational goal,56when the Fifth Circuit’s justifications for that deference do not apply equally to law enforcement and school officials.
Constitutional justifications for corporal punishment are rooted in historical recognition of a unique relationship between teachers and students. In Ingraham, the Supreme Court looked to the common law privilege justifying teacher-inflicted corporal punishment in both its Eighth Amendment57 and procedural due process58analyses. The Court referenced Blackstone, who wrote that, at common law, a parent could “lawfully correct his child” and therefore “delegate part of his parental authority . . . to the tutor or schoolmaster of his child; who is then in loco parentis.”59 The cases establishing the Fifth Circuit’s corporal punishment substantive due process test echoed the Supreme Court’s acknowledgment that schools’ right to use corporal punishment was a “common law principle” that “predate[d] the American Revolution.”60 Even as courts have shifted toward a view of public education “more consonant with compulsory education laws,”61 they have retained a vision of school officials and students’ unique relationship and afforded corresponding flexibility in constitutional norms.62
The Paley court failed to explain how this reasoning could apply to school police officers, and whether any comparable, historically recognized relationship exists between them and students.63 Given that police officers have been stationed in schools only since the mid-twentieth century at the earliest,64 they cannot rely on centuries of recognized and legally protected practices to justify their uses of force against students.65 The Paley opinion contrasts with other courts’ decisions, which examined objective indicators of the relationship between school police officers and students.66 Without analogous justifications, whether from history, the common law, or other sources, extending the corporal punishment privilege to school police officers cuts the rule loose from its doctrinal mooring.
Beyond these distinctions, the pragmatic considerations underlying corporal punishment jurisprudence and the more deferential approach toward school officials’ actions do not extend to police officers’ conduct. In carving out constitutional exceptions for school officials, the Supreme Court has expressed concern about burdening overextended school officials with formal legal tests. In the Fourth Amendment context, for example, the Supreme Court declined to require that school officials have probable cause to search a student’s items in part because of concerns that the legal test was unduly complex.67 School police officers are law enforcement officers, and therefore trained on use of force68 and the probable cause standard,69and required to apply some legal tests.70 The concern and deference offered to school officials does not apply to sworn law enforcement officers.
Another consideration, invoked by the Supreme Court in Ingraham71 and echoed in Fifth Circuit opinions,72 counsels against judicial involvement in routine school discipline. When considering Ingraham v. Wright73 prior to the Supreme Court’s review of the case, the en banc Fifth Circuit held: “We think it a misuse of our judicial power to determine . . . whether in a particular instance of misconduct five licks would have been a more appropriate punishment than ten licks.”74 This rationale does not logically extend to school police officers. Granting remedies for unconstitutional conduct by police outside of schools is emphatically within the ambit of federal courts.75 Other circuits’ decisions demonstrate it is both workable and a proper judicial function to hear such cases. Federal courts regularly evaluate claims against school police officers, either on excessive corporal punishment or excessive force grounds76 — including for the very act in this case, tasing.77 And in the nonschool context, a police officer’s tasing of a disabled individual would be straightforward grounds for a § 1983 federal lawsuit against that officer.78
The distinction between school police officers and other school officials is not a bright line, a fact recognized by the muddled lower court splits on other constitutional issues regarding law enforcement actions in schools.79 The Fifth Circuit’s corporal punishment cases demonstrate that police and school official violence toward students often look remarkably similar.80 But the Fifth Circuit’s own test is rooted in deference toward specific actors, school officials, afforded particular discretion because of their status. The panel failed to address these considerations in Paley.81
Paley represents a missed opportunity to draw a line in the sand differentiating school police officers from other school officials when evaluating corporal punishment. The number of police officers in schools has risen dramatically since the Supreme Court’s Ingraham decision,82and that surge is associated with an increase in disciplinary measures like suspensions, expulsions, and arrests in schools.83 As police presence in schools becomes more pervasive, Paley signals that students cannot seek legal protection from the Fifth Circuit.