Endrew F. v. Douglas County School District RE-1: Supreme Court Rejects 10th Circuit's More Than De Minimis IEP Benefits Interpretation

Whether a child has been integrated fully into a classroom setting or not, the Supreme Court has recently determined that a child under an Individualized Education Plan (IEP) required under the Individuals with Disabilities Education Act of 1990 (IDEA) must receive a education that is tailored to a child’s unique needs and seeks to enable the child to make educational progress appropriate in light of the child’s particular circumstances. The Court's opinion in Endrew F. v. Douglas County School District RE-1, 580 U.S. __ (2017), clarifies  an earlier decision by the High Court in Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley,  458 U. S. 176 (1982), held that an IEP need only be "reasonably calculated to enable the child to receive educational benefits." This Rowley standard lent itself to a great deal of uncertainty as evidenced by the earlier decision, where the 10th Circuits held that the Rowley standard, when applied to a child not integrated fully in a classroom, could be satisfied by a demonstration of merely more than de minimis educational progress. See Endrew F. v. Douglas County School District RE-1, 798 F. 3d 1329, 1336 (CA10 2015). Vacating and remanding the 10th Circuit's decision, the Supreme Court emphasized that while the IDEA cannot promise any particular educational outcome, it must nevertheless enable the child to achieve a higher educational outcome that is appropriate to the child's particular life circumstances. Concretely, this means that a disabled child under an IEP who is integrated in a classroom should be equipped to progress through the curriculum just like other children in the classroom. For a child who is not able to be integrated into the classroom, the child's IEP need not aim for grade-level advancement but must nonetheless provide an  educational program must "appropriately ambitious in light of [the child's] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."

In re J.T: Court Reports Alone Are Not Substantive Evidence

If it has been said before, it has been said over a two or more times by the North Carolina Court of Appeals: DSS and GAL court reports can do a lot of things but without more, they cannot be the principle basis by which a court acts, whether it is conducting an adjudication, a disposition, a review or permanency planning hearing. Back in 2004, the Court of Appeals reviewed a disastrous case, In re D.L., which in principal consisted of a district court judge engaging in a protracted argument with a Respondent Mother In re D.L., 166 N.C. App. 574, 603 S.E.2d 376 (2004).


As arguments with judges typically do, this one ended badly for the respondent: the judge ended the hearing by receiving the DSS report into evidence and then proceeded to enter an order, without affording the DSS to supplement the report with additional testimony. The Court of Appeals reversed, noting that the trial court's findings of fact were based only on court reports, prior orders and the argument of counsel, none of which qualified standing alone as competent substantive evidence. A largely indistinguishable situation again resulted in the reversal in 2010 with the case of  In re D.Y., 202 N.C. App. 140, 688 S.E.2d 91 (2010).


The most recent incarnation of these facts has arisen out of Orange County (In re. J.T. COA 16-774) (February 21, 2017) where, as before, no oral testimony was received, not even a social worker to take the stand and adopt the DSS report into testimony, nor stipulations of all the parties that might have provided a basis for the court to receive the report as substantive evidence. In addition, the district court, which sought to terminate reunification efforts, failed to follow the statutory requirements found at N.C. Gen. Stat. §§ 7B-906.1 and 906.2 (2015) cease such reunification efforts. As a result, the district court's order was vacated and remanded.


The moral of the story remains the same: in every hearing where all parties do not stipulate to set and necessary facts, there must be oral testimony to support the court's adoption of particular facts (which coincidentally happen to appear in a DSS and/or GAL court report). This standard is satisfied even when a competent witness (i.e. social worker or GAL volunteer) takes the stand, and merely adopts the contents of their court report in full into their testimony. To do otherwise is to court reversal or in the alternative, the Court of Appeals vacating the order of the district court and remanding the same.

NAACP Request to Ban Confederate Flag in Orange County Schools at Variance with Constitutional Standards

The Raleigh News and Observer has recently reported that the Northern Orange County NAACP has again asked the Orange County (North Carolina) Schools Board of Education to ban the Confederate flag. According to the article (http://bit.ly/2lMFgMe)) NAACP President Patricia Clayton recently sent a letter to both the Orange County school board as well as Superintendent Todd Wirt, requesting that the school district ban the flag on school grounds.  According to the article, Clayton rationalized the NAACP’s request on the basis that the “. . . flag is a racially inflammatory symbol, which is undeniably rooted in slavery and racism" and further added that "[g]iven OCS’ commitment to serve all students, the district should not allow the Confederate flag on its campuses.”

This is the second time the Northern Orange County NAACP has made such a request.  On the previous occasion, school officials demurred to the request, citing instead district policies already in place which prohibit  student appearance or clothing that is “. . . deemed disruptive, provocative, indecent, vulgar, or obscene, or if it endangers the health or safety of the student or others.”

Notwithstanding the strong symbolic content of images of the Confederate Battle Flag which may be unsetting to some, First Amendment issues clearly complicate the manner of response made to the NAACP by the Orange County School system.  While it is true that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings," Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986), it is also true that students do not "shed their constitutional rights to the freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988); Barr v. Lafon, 538 F.3d 554, 562 (6th Cir. 2008). Generally, school campuses are not public forums where the full protection of the First Amendment applies. Instead, schools are able to limit students' rights to free speech due to the special characteristics of the school environment where an appropriate learning environment must be maintained. It is important to note, however, that student speech may only be limited when on balance, the student interest in free speech is outweighed by a compelling governmental interest in maintaining discipline and preserving the learning environment necessary to accomplish the school's educational mission." Barr at 562. Usually this burden of proof requires a tangible demonstration that a particular form of speech is actually impeding discipline or disrupting the learning environment or would reasonably lead to such a situation. See DeFoe v. Spiva, 650 F. Supp. 2d 811, 819 (E.D. Tenn. 2009).

At present, the Northern Orange County NAACP has not made such an evidentiary showing. Moreover, it believes it does not have to do so. According to the News and Observer report, the organization is opposed to having to demonstrate that the flag disrupts the learning environment in as much as it “sidesteps” community concerns about the Confederate flag. As quoted in the article, the NAACP has taken the position that the Confederate Flag is “ . . .symptomatic of racial and cultural bias in the district, which is inextricably tied to the persistent underperformance of African American children.”

The NAACP's position in seeking to ban the Confederate Flag without evidence of its presence being either disruptive or a hindrance to Orange County Schools educational mission ignores the importance our Constitution places on the toleration of divergent viewpoints, whether those viewpoints be religious or political, high philosophy or just plain non-sense. Upholding this core value, our courts have consistently placed the strictest scrutiny on government actions which seeks abridge free speech, even when that speech was most unpopular. Applied to the school room, this scrutiny has upheld a student's right to do a great many unpopular things, including the right to protest the Vietnam War which the NAACP no doubt would have supported at the time.

The NAACP’s position,  while certainly raising some worthy points, nonetheless should be reconsidered by not only Patricia Clayton but by the NAACP as a whole. Does the NAACP really wish to suspend particular speech because it betrays attitudes that may be viewed as hostile? If so, the NAACP is asking the Orange County School Board to impose a policy that is analogous to an Orwellian ban on thought crime, where it matters not what the speech does as much as whether  that expression betrays an impurity of thought which might lead to otherwise undesirable consequences.

 

New Extended Foster Care Judicial Review Legislation Fails to Extend Subject Matter Jurisdiction to District Courts

 

While any effort to extend resources to young adults who have been in foster care is welcome, it seems that North Carolina's efforts to extend foster care to 18-21 year olds has run into a bit of a snag. The problem is that North Carolina General Statute §7B-910.1, which provides for judicial review of such foster care agreements, cannot be implemented by county departments of social services because judicial review is not authorized pursuant to North Carolina General Statutes §7B-200 and §7B-201.

The subject matter jurisdiction of the North Carolina District Courts to hear matters pertaining to juveniles is set forth in North Carolina General Statute §7B-200. The statute sets forth generally subject matter authority “. . . over any case involving a juvenile who is alleged to be abused, neglected, or dependent.” N.C. Gen. Stat. §7B-200.  A juvenile is defined by the North Carolina Juvenile Code as “. . .a person who has not reached the person’s eighteenth birthday and who is not married, emancipated, or a member of the Armed Forces of the United States. N.C. Gen Stat. §7B-101(14).  In addition to the authority generally conferred upon the district courts in North Carolina over juvenile, North Carolina General Statute §7B-200 also provides for subject matter jurisdiction in the following circumstances:

1. Proceedings under the Interstate Compact on the Placement of Children ;
2. Proceedings involving judicial consent for emergency surgical or medical treatment of a juvenile in the absence of parental or guardian granted authority;
3. Emancipation proceedings;
4. Proceedings to terminate parental rights;
5. Proceedings for the reinstatement of parental rights;
6. Proceedings to review the placement of a juvenile in foster care pursuant to an agreement between the juvenile’s parents or guardian and a county department of social services;
7. Obstruction petitions;
8. Proceedings involving consent for an abortion on an un-emancipated minor;
9. Proceedings by an underage party seeking judicial authority to marry;
10. Petitions for judicial review of a director’s determination that an individual should be named to the Responsible Individual List.

The North Carolina Department of Health and Services has authorized, effective January 1, 2017, county departments of social services to “extend foster care services to an individual who has reached age 18 and desires to remain in foster care. Memorandum, North Carolina Administrative Office of the Courts, Extended Foster Care for Young Adults Ages 18-21 (January 19, 2017).  For those who fall within the age parameters, this authorization allows a county department of social services to allow foster care placement until the age of 21 years of age provided that the individual is (1) completing secondary education or a program leading to an equivalent credential; (2) enrolled in an institution that provides postsecondary or vocational education; (3) participating in a program or activity designed to promote, or remove barriers to employment; (4)  employed for at least 80 hours per month; or (5) incapable of completing the afore-mentioned educational or employment requirements due to a medical condition or disability . Id.  As part of the process of extending foster care for individuals who meet the requirements of participation, the North Carolina Legislature has implemented North Carolina General Statute 7B-910.1 which requires the district court to review placement agreements extending foster care services to young adults. N.C. Gen. Stat. §7B-910.1. The procedure for judicial review consists of requiring the county department of social services that is extending foster care to a young adult to calendar a hearing before the district court not more than 90 days from the date the agreement was executed. Id. At the judicial review hearing, the district court is tasked with making the following determinations:

1. Whether the placement is in the best interests of the young adult in foster care;
2. The services that have ben or should be provided to the young adult in foster care to improve the placement;
3. The services that have been or should be provided to the young adult in foster care to further the young adult’s educational or vocational ambitions, if relevant.N.C. Gen. Stat. §7B-910.1 (a)(1-3). Further review hearings are authorized by statute upon the written request of either the county department of social services or the young adult to allow the court to “. . . monitor the placement and progress toward the young adult’s educational or vocational ambitions.” N.C. Gen. Stat. §7B-910.1(b).

North Carolina General Statute §7B-200 specifically enumerates those actions involving juveniles that the legislature has authorized the North Carolina district courts to hear. While there is an abundance of matters that the legislature has authorized the district courts to hear, the legislature has specifically not authorized any judicial oversight in matters pertaining to young adults who have reached the age of 18 years of age. Id. In addition, the North Carolina Legislature has specifically limited judicial authority in abuse, neglect, and dependency actions to individuals who have not yet reached the age of 18 years of age. See N.C. Gen. Stat. §7B-201; In re K.C.G., 171 N.C. App. 488 (N.C. Ct. App. 2005). Where there is no legislative authorization provided to a court to exercise subject matter jurisdiction, the court is powerless to act and any order rendered in such a matter is null and void on its face. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005); In re Ivey, 156 N.C. App. 398 (N.C. Ct. App. 2003).

 

As the North Carolina District Courts lack subject matter jurisdiction to review extended foster care placements, a county agency, while permitted to extend to young adults such agreements, have no basis for requesting judicial review at this time. County departments of social services should therefore refrain from calendaring review of extended foster care placements until such time as the North Carolina Legislature amends North Carolina General Statute §7B-910.1 to permit review of extended foster care agreements of individuals 18-21 years of age, and amends North Carolina General Statute §7B-201 to extend the court’s jurisdiction in extended foster care matters to the age of 21.

 

In re J.A.M.: Prior Child Protective Services History Standing Alone is not Enough to Adjudicate Neglect

To support an adjudication of neglect, a trial court’s findings of fact must show “some physical, mental or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide proper care, supervision, or discipline.”  In re Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258 (2003). Absent such a nexus between the child's condition and either actually neglectful acts of commission or acts of omission which will most certainly lead to a child being neglected, an insufficient factual basis exists to adjudicate a child. The recent case of In re J.A.M., __N.C.App__,__S.E.2d__( COA16-563, December 20, 2016) illustrates this principle.

In J.A.M., the Mecklenburg County Department of Social Services, Youth and Family Services Division (“YFS”) received a report concerning the new-born minor child on the date of February 24, 2016. An assigned social worker went to Respondent-mother’s home where the worker found the Respondent-mother’s home appropriate and that J.A.M. seemed to be healthy and well cared for. Notwithstanding this, the worker was advised of a long history of child protective services involvement between social services and the family. Based solely upon the parents’ prior histories with YFS (which included, among other things, reports of domestic violence between the parents), the social worker developed a Safety Assessment in an attempt to determine whether previous issues and concerns about the family had been addressed. Predictably, the parents refused to sign the safety plan which then led YFS to file a juvenile petition and seek non-secure custody over the minor child. The efforts of YSF were initially fruitful, even to the point to which the minor child was adjudicated neglected. effort in which they were successful.

Several interesting facts were noted by the Court of Appeals. First, the Respondent-Mother denied any on-going domestic violence in the home and YFS never provided any proof to the contrary. Second, at the time of the adjudication, the Respondent-mother and the father of the child were not only not living together but were also no longer in a relationship.

Predictably, the Court of Appeals reversed the adjudication of neglect. While history is very often a solid basis for predicting future behavior, it is not a fool-proof prognosticator: people can change. Thus while history may be important in establishing that more recent acts of neglect are not simply a one-time occurrence, without evidence of neglect in the hear and now of the juvenile petition time frame, whether it is by creating conditions likely to actually to lead to neglect or the perpetuation of an act of neglect upon a child, the Petitioner simply fails to meet the evidentiary burden.This is what happened in this case and this should be a clear warning to social services agencies across North Carolina that routinely take new-born children into custody based on prior child protective services involvement with the new-born child's sibling or siblings.

Family First Prevention Services Act of 2016 opposed by Prominent Senators, Social Services Organizations

The Families First Prevention Services Act of 2016 (H. R. 5456) is currently before the United States Senate where it is has remained on hold from debate on the Senate floor. The legislation, touted by advocates as being the "most substantial piece of child welfare legislation in the last 10 year", provides federal funding for up to twelve months to families providing care for a child in a child welfare case involving a county department of social services. According to a memorandum from the U.S. House Ways and Means Committee, these compensated services, aimed at preventing a child from entering foster care, include mental health services, substance abuse services, and in-home parent "skill-based programs which contemplate parent training, home visits and individual and family therapy so long as they classify as "promising", "supported", or "well-supported" as defined by the California Evidence Based Clearinghouse and as codified in the proposed legislation.


The legislation passed without opposition in the House of Representatives and was being co-sponsored in the Senate by Senators Orrin Hatch (R-Utah) and Ron Wyden (D-Oregon), initially as part of the 21st Century Cures Act, a mental health funding bill which would provide money to extend health insurance coverage. Unlike the situation in the House, however, significant opposition has materialized in the Senate lead by opposition groups in California, North Carolina and New York. In an letter addressed to Senators Charles Schumer (D-New York) and Kirsten Gillibrand (D-New York), the New York Public Welfare Association  indicated that it ". . . STRONGLY OPPOSES H.R. 5456, as it will greatly impact the ability of New York State and its 58 county-run, local departments of social services (DSS) to best serve foster children,” Furthermore, the letter states that the legislation ". . . represents a major unfunded mandate on state and local child welfare systems which must absorb the loss of federal Title IV-E funding — as well as the costs associated with the bill’s added administrative requirements."


Currently, the bill, which had been stripped from the 21st Century Cures Act, remains in jeopardy, perhaps a good thing given its implications for Federal IV-E funding as written.


While certainly no one is opposed to having fewer children in foster care, the bill seeks to accomplish this by denying compensation of what sponsors deem "inappropriate group home placements." The proposed legislation targets child[ren] who [are] a candidate for foster care, meaning that they are at imminent risk of entering foster care but who can remain safely in their home or kinship placement as long as appropriate services or programs that are necessary to prevent the entry of the child into foster care are provided. The crux of the problem is that many children fit this definition who are initially placed in family or kinship placements. Due to a number of factors, including intra-family dynamics, the patience and skill set of the placement providers, and the behavior of the children in the home, a placement will disrupt because the collective tensions between the children and the provider get the better of the situation. While assistance and support from outside agencies can help, these measures are not a cure-all. County social services agencies could likely confront the horns of a dilemma: under this legislation, an agency may be forced to choose between receiving federal funding for ineffective programs and services or placing the child in a group home, which, while more conducive toward a child's welfare, nevertheless must be done without the prospect of receiving any federal IV-E funding.


Secondarily, while it certainly is a good idea to provide the best services to families in order to prevent children from entering foster care, the question arises as to whether smaller communities with few mental health and substance abuse prevention providers are going to be able to satisfy the stringent threshold requirements for federal compensation by being  able to access a "promising", supported" or "well-supported".


Finally, the legislation, as currently written, requires each State to have non-family settings assessed on a continuing basis as a prerequisite to continued federal funding. Current child welfare legislation, such as that in the State of North Carolina, require a judicial official to be advised of the placement of a child in foster care and the court is charged with evaluating the appropriateness of the same. However, if the Family First Prevention Services Act of 2016 were to pass, it would create another level of bureaucracy which independently would determine whether a placement is meeting a child's needs. This dual assessment could lead to conflict between the State and its county departments of social services when funding is declined. More significantly, it could escalate to an even more egregious problem if the State's decision is at odds with a judge in authority over a juvenile's case.

Obama Administration; National Women's Law Center setting up Civil Rights Fight on Corporal Punishment

     As reported in the Huffington Post (http://www.huffingtonpost.com/entry/corporal-punishment_us_58337528e4b030997bc0efad) , an open letter targeting corporal punishment in schools was recently sent to local and state educational agencies and policymakers by the National Women’s Law Center (NWLC). The organization, along with a host of other organizations and individuals, urged local, state, and federal policymakers "to address the damaging use of corporal punishment against our nation’s schoolchildren." The letter further made the claim that "it [was] important to eliminate the use of corporal punishment in both public schools and private schools, which serve students receiving federal services, as well as assist in creating a safer learning environment for every child."


    This letter, following a November 2016 effort by the Obama administration to end corporal punishment, is no doubt the opening round of yet another attempt to deconstruct a traditional institution using federal law as a bludgeon.


    Schools exercise their authority based on the power that is given by local school boards and state and federal legislative bodies, as well as the authority provided by parents. Nineteen states, including North Carolina, have provided express legislative approval for corporal punishment in schools. Even where the legislature has specifically authorized a school to administer corporal punishment, a number of school administrators ultimately give parents the opportunity to "opt out" of in-school corporal punishment by submitting a letter or signing a form to that effect, an option not always exercised by parents. Despite this authority, the use of corporal punishment in schools has declined nationally with 109,000 students being subjected to corporal punishment in public schools in the 2013-14 school year, a  67% decrease from 2011-2012.  —down from 163,333 in the 2011-12 school year.


     So what accounts for the sudden interest in banning corporal punishment when it seems that in a few short years, the practice might be eliminated through disuse on its own? The answer can be found in the NWLC letter where corporal punishment is singled out as allegedly affecting "minor offenders" who disproportionately tend to be "[b]lack children" and the "disabled". The significance of both of these identifications is notable where no mention is made of the number of Caucasian students, or students of any particularized ethnicity who are affected by corporal punishment. This suggests strongly that the National Women's Law Center and the Obama Administration are attempting to develop a class of affected persons who are the subject of discrimination in violation of the Civil Rights Act and the Americans with Disabilities Act. Once such a class is developed, litigation and possible criminalization suddenly become a real possibility. 


     To draw such a conclusion is hardly an exercise in fear mongering. To the contrary, the evidence for such motives is poorly disguised when the language used in the NWLC letter makes corporal punishment analogous to animal cruelty. Moreover, the NWLC goes to lengths to discredit corporal punishment, stating that "h]arsh physical punishments do not improve students’ in-school behavior or academic performance" and citing one unnamed study which allegedly found that ". . .schools in states where corporal punishment is used perform worse on national academic assessments than schools in states that prohibit corporal punishment." Rather than engage in a mere academic debate, the evidence is clear that neither the President of the United States nor the National Women's Law Center are open to the idea that corporal punishment should be allowed in schools under any circumstance and that both are prepared to take whatever measures are available to bring about corporal punishment's demise.


     If corporal punishment should not be allowed in schools under any circumstances, if it becomes the source of litigation and criminalization, how long will it be before corporal punishment in the home itself becomes litigated and eventually criminalized? According to the Global Initiative to End All Corporal Punishment, 51 sovereign states have already banned the practice. http://www.endcorporalpunishment.org/progress/prohibiting-states/). Noteworthy is the fact that the ban doesn't just stop with corporal punishment in schools but extends to the home as well. While the momentum for such total bans on corporal punishment has waned in recent years, even in 2016 there were three new sovereign states who banned the practice entirely. The possibility for forward momentum in the United States is not altogether out of the question.


    But why not ban corporal punishment, at least in schools? After all, corporal punishment has been soundly indicted by such luminaries of the ancient world as Martial, Quintillian and Plutarch, who railed against the trauma such practices inflict upon children. The 16th Century political philosopher John Locke also condemned the practice in education where it held a central role in English society. Moreover, as the NWLC letter states, there are a host of pediatric, mental health and human rights organizations that also view the practice as barbaric and contrary to children's rights. Surely such authority should carry some weight, shouldn't it?


    One of the best answers is to be found in the fact that schools, like other social institutions, are effective only to the extent that discipline, as a form of social justice, can be maintained and the overriding mission of the institution can be accomplished. Without discipline enforced through the potential or practice of corporal punishment, the mission of the school to effectively educate all students is seriously compromised. The importance of discipline begins with Plato who in his Republic defines justice as it exists in the polis as that where each part has and does that which is assigned to it and where each person gives "every man his due.” Justice in the classroom is no different: the teacher must discharge his responsibility in a manner which respects and appreciates the roles of the student which in turn requires them to respect and appreciate the role of the teacher. Corporal punishment, when administered in the spirit of justice, with all the moderation that Plato would require, aids in the maintenance of justice in the classroom which enhances the potential for education to be received by the group as a whole.


    The condemnation of Quintillian, of Plutarch, of Locke, though critical of the effectiveness of corporal punishment as a tool to maintain discipline, nevertheless did not question the very idea that discipline was an essential requirement of an educational setting. Rather, their criticism  was aimed at irradicating injustice--excessive cruelty and shame that was commonly inflicted upon students in violation of the teacher's proper roll. But as Grotius or Hobbes would remind us, the use of force is a necessary tool in a world where others would transgress justice for their own advantage.


    Maintaining discipline in an academic setting is far from easy, as any teacher of children will tell you. Moreover, polite persuasion, whatever its many virtues, at times remains ineffective against the recalcitrant student whose parents often overlook or excuse misbehavior as either not being their problem or the fault of the teacher. With such a child, even the threat of suspension is of no consequence, since in large part it gives the recalcitrant student exactly what he wants-to be free of the school setting for a time if not once and for all. Where compulsory education makes suspension at best an ineffective tool against the misbehavior and misadventures of a recalcitrant student, stronger measures are required which can only be realized through corporal punishment. Without the availability of corporal punishment as a last-resort-tool for the educator (among a number of other tools that should be deployed first) the  minority of students, who are misbehaving and disrupting the classroom, act as a tyrant over the majority, depriving the majority of a disciplined classroom and the educational opportunity that comes with it. For this reason, corporal punishment, in a form that respects and appreciates the student and works toward the ultimate goal of justice, must be preserved no matter what the individual consequences that might accrue to the disciplined individual. The good of the whole more than adequately trumps the right of the individual when the individual comes to the table of justice with unclean hands. Forceful but appropriate correction of a child will not cause the child to die but may very well deliver the child and his classmates from a Hobbesian educational hell that proper public policy could have prevented.