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Gaspersohn v. Harnett County Board of Education and Glenn Varney

Filed: June 4, 1985.

SHELLY S. GASPERSOHN, BY AND THROUGH ARNOLD GASPERSOHN, GUARDIAN AD LITEM
v.
HARNETT COUNTY BOARD OF EDUCATION AND GLENN VARNEY



Appeal by plaintiff from Bailey, Judge. Judgment entered 5 January 1984 in Superior Court, Harnett County.

John Webb, Judge, wrote the opinion. Chief Judge R. A. Hedrick concurs. Judge Willis P. Whichard concurs in the result.

Webb

This case brings to the Court questions arising from the administration of corporal punishment in the public schools of this state. Corporal punishment is allowed by G.S. 115C-390 which provides:

Principals, teachers, substitute teachers, voluntary teachers, teacher aides and assistants and student teachers in the public schools of this State may use reasonable force in the exercise of lawful authority to restrain or correct pupils and maintain order. No local board of education or district committee shall promulgate or continue in effect a rule, regulation or bylaw which prohibits the use of such force as is specified in this section.

Prior to the adoption of G.S. 115C-390 there have been two cases in our Supreme Court dealing with corporal punishment. See Drum v. Miller, 135 N.C. 205, 47 S.E. 421 (1904), and State v. pendergrass, 19 N.C. 365 (1837). In Pendergrass our Supreme Court reversed the conviction of a schoolteacher for assault and battery. The evidence showed that the teacher whipped a six or

seven year old girl so as to cause marks upon her body which disappeared within a few days. The Court said,

"The jury should have been further instructed, that however severe the pain inflicted, and however in their judgment it might seem disproportionate to the alleged negligence or offence of so young and tender a child, yet if it did not produce nor threaten lasting mischief, it was their duty to acquit the defendant; unless the facts testified induced a conviction in their minds, that the defendant did not act honestly in the performance of duty, according to her sense of right, but under the pretext of duty, was gratifying malice."

In Drum our Supreme Court granted a new trial for an error in the charge. In that case the defendant schoolteacher threw a pencil at the plaintiff who was a student in his class. The pencil struck the plaintiff in the eye, inflicting serious injury. The Superior Court instructed the jury that unless they found that a prudent man might have anticipated that the injury complained of would likely result from the defendant's act they should find against the plaintiff on the issue of wrongful injury. Our Supreme Court held that it was not necessary for the jury to find the defendant should have foreseen the particular injury which occurred. The Court said it was necessary for the jury to find only that a permanent injury would be the natural and probable consequences of his act. The Court cited Pendergrass and said, "It is undoubtedly true that a teacher is liable if, in correcting or disciplining a pupil, he acts maliciously or inflicts a permanent injury, but he has the authority to correct his pupil when he is disobedient and inattentive to his duties, and any act done in the exercise of this authority and not prompted by malice is not actionable, though it may cause permanent injury, unless a person of ordinary prudence could reasonably foresee that permanent injury of some kind would naturally or probably result from the act."

We believe the pre-G.S. 115C-390 rule from Pendergrass and Drum is that a teacher has the right to administer corporal punishment to students so long as it is done without malice and to further an educational goal. If a teacher inflicts serious injury on a student the teacher is liable although acting without malice and to further an educational goal if he should have reasonably foreseen

that a serious or permanent injury of some kind would naturally or probably result from the act. G.S. 115C-390 allows the administration of corporal punishment so long as reasonable force is used and proscribes local school boards from prohibiting it. See Kurtz v. Board of Education, 39 N.C. App. 412, 250 S.E.2d 718 (1979), in which we held that a school board may regulate the manner in which corporal punishment is administered.

In Baker v. Owen, 395 F. Supp. 294 (1975), a three judge court held that G.S. 115C-390 does not violate any substantive constitutional rights. The Court in that case prescribed certain procedures that must be followed to protect the procedural due process rights of students who are to receive corporal punishment. In Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977), the United States Supreme Court held that the Eighth Amendment to the United States Constitution which forbids cruel and unusual punishment does not apply to corporal punishment administered in our schools. The Supreme Court held that traditional common law remedies for excessive corporal punishment satisfied the due process requirement of the Fourteenth Amendment. The common law remedy which the Court said applied in most states is that a child could recover for excessive punishment but there can be no recovery if the punishment is reasonable in light of its purpose. We believe the law in North Carolina as to corporal punishment in public schools follows the common law rule as enunciated by the Supreme Court in Ingraham.

The appellant's first assignment of error is to the charge. The appellant requested that the Court charge the jury that in determining whether reasonable force had been used that "reasonableness embodies the concept that the use of force is limited to that necessary under the circumstances for the child's discipline and training, and that in evaluating reasonableness you may take into consideration plaintiff's age, sex, physical and mental condition, seriousness of the offense, the attitude and past behavior of plaintiff, the severity of the punishment, the probability of any physical or mental harm, the availability of less severe but equally effective means of discipline, the defendant's anger or malice, the instrument used, and the defendant's tolerance of pain." The appellant also requested that the Court instruct the jury that in relation to Mr. Varney's authority to use corporal

punishment they could consider the regulations of the Harnett County Board of Education. The appellant requested further that the jury be instructed that except for "acts of misconduct which are so antisocial or disruptive in nature as to shock the conscience, corporal punishment should never be employed as a first line of punishment for misbehavior."

The Court charged the jury that a teacher may use reasonable force in the exercise of lawful authority to restrain or correct pupils and maintain order. He explained to them that this included corporal punishment and said, "A teacher may therefore legally inflict temporary pain but may not seriously endanger life, limb, health or disfigure the child or cause any other permanent injury. He cannot lawfully beat the child, even moderately, to gratify his own evil passion. The chastisement must be honestly inflicted in punishment for some dereliction which the pupil understands. If the teacher keeps himself within these limits and his lawful jurisdiction, he must decide the question of the expediency or necessity of the punishment and its degree." The Court charged the jury further that if Mr. Varney failed to exercise ordinary care and inflicted permanent or long lasting injury which was the natural and probable result he would be liable to the plaintiff. We believe this is a correct statement of the law as applied to the facts of this case. It appears that Judge Bailey relied on Pendergrass and Drum in defining reasonableness as used in the statute. In this we find no error.

While it would not have been error to include some of the plaintiff's requested instructions in the charge we do not believe it was necessary. We believe for example, the law of this state is in compliance with the law in most of our states as outlined in Ingraham and Judge Bailey adequately instructed the jury as to the law. We have a statute governing the administration of corporal punishment. If we were to hold that a judge had to charge in accordance with some of the plaintiff's requests for instructions we believe we would be overruling the legislature which we do not have the power to do. We believe that an instruction that corporal punishment should never be employed as a first line of punishment except in cases in which the act of the student is so antisocial or disruptive in nature as to shock the conscience is contrary to the statute. The appellant's first assignment of error is overruled.

In her second assignment of error the appellant contends the Court erred in excluding certain testimony. The appellant concedes it was not error to exclude this testimony if the proper standard was applied by the Court in determining the appropriateness of the corporal punishment administered to the plaintiff. We hold the proper standard was applied. This assignment of error is overruled.

In her third assignment of error the appellant contends the Court expressed an opinion on the evidence while stating the contentions of the parties. In charging the jury as to the in-school suspension which was first imposed on the plaintiff the Court stated "No other alternative was offered at that time." The defendant asked the Court to charge that boys were given the alternative of raking leaves, which alternative was not offered to the girls. The Court refused to give this instruction. The appellant contends that this gave the jury the impression that only the defendants' offered alternative of corporal punishment or outright suspension "were legitimate considerations." We do not believe the court should have given this requested charge. The question in this case is not what alternative punishment should have been offered in addition to corporal punishment. The defendant Varney was authorized by statute to administer corporal punishment. When the plaintiff chose this form of punishment as an alternative to in-school suspension the question is whether a reasonable amount of force was used and not whether some other form of punishment should have been used.

In recapitulating the evidence as to how corporal punishment was administered the Court said "nobody held anybody." The appellant contends that this implies there was no compulsion on her to accept corporal punishment. We do not believe that is the implication from this statement. The evidence shows that no one held the plaintiff. The jury should have been well aware, however, that she requested corporal punishment in order to be relieved of in-school suspension which was a form of compulsion. The Court in recapitulating the evidence stated that the plaintiff seemed anxious to take corporal punishment. The appellant argues that nowhere in the evidence is there anything which would support this ...


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