School discipline has been controversial for centuries, but there's a solution

As children return to the classroom this fall, many will be caught in dysfunctional and discriminatory systems of discipline. If history is any guide, Black children will be suspended, spanked and arrested at rates far higher than their peers. Students with autism will be locked in windowless rooms. Police officers will body-slam teenage girls and handcuff 10-year-olds. Authorities are unlikely to be held accountable in any of these cases.

One might reasonably ask, "By what right do schools punish students in the first place?"

Unfortunately, Americans have never really been able to answer that question. Indeed, many injustices persist in our schools precisely because punishment remains legally and morally incoherent.

School punishment was fairly straightforward at first. Education was overwhelmingly private and voluntary through the early 19th century. Under the common law, teachers acted in loco parentis ("in place of parents"), giving them wide latitude in punishing children. Parents vested this power when they chose the school, and if they were dissatisfied with a teacher's methods they could simply withdraw their child and choose another one.

The emergence of public education during the 1840s strained that logic. Parents did not have to enroll their children in public schools, but if they did they were supposed to accept community norms of punishment — usually whipping. Many did not. Some fathers took retribution into their own hands, punching teachers who hit their children, while other parents sued school districts for assault.

Yet, time and again, courts affirmed that teachers stood in loco parentis, whether their methods met the approval of any particular parent or not. Moral instruction was a cornerstone of public schooling, and imparting right and wrong seemed to require a free hand in the administration of discipline.

Public education reached its apex at the turn of the 20th century when legislatures passed compulsory attendance laws and tried to ban private schools. As more children were forced to attend public school, the notion that parents voluntarily consented to their punishment was increasingly untenable. After all, they could no longer easily withdraw their children from school if they disagreed with the disciplinary methods. In loco parentis seemed like a dead letter.

But in the early 1900s a new justification for punishment was emerging in urban schools: a formalistic approach — based on laws, bureaucratic rules and strict standards that left less room for discretion. This approach positioned the school as an arm of government rather than a surrogate parent.

These rules upheld the teacher's right to keep order in the classroom but narrowed the scope of "reasonable" methods. Many states banned or restricted the use of corporal punishment. Districts drafted sequential disciplinary procedures. Teachers referred troublemakers to the principal, who increasingly turned them over to police departments, welfare agencies and juvenile courts.

In some ways, formalizing school discipline opened new possibilities for civil liberties. If punishment was an act of government rather than the family, students could perhaps claim constitutional protections against it.

The Supreme Court edged in that direction between the 1940s and the 1970s. When children were suspended for refusing to salute the flag or for wearing armbands to protest the Vietnam War, the court found that their speech was protected by the First Amendment. When a school summarily suspended teenagers for a disruptive civil rights protest, the court ruled that administrators had to offer a basic explanation for their actions.

But the defense of these rights was qualified and short-lived.

For conservative justices, social unrest during the 1970s seemed to demand a return to in loco parentis. In subsequent decisions, the Supreme Court reiterated schools' "custodial and tutelary responsibility for children," using it as a reason to uphold warrantless searches, limit free expression in school newspapers and allow the suppression of vulgarity and drug references. On issues of student speech and decorum, educators can still enforce community norms in ways reminiscent of the 19th century, justifying punishment as a form of moral education undertaken on behalf of parents — at least while children are on school grounds.

Although formal procedures made no appeal to moral authority, they, too, were more likely to protect teachers than students. Disciplinarians could comply with vague standards of "reasonableness" even when their practices were nothing short of brutal. In 1971, a Texas boy was knocked unconscious for swearing at an administrator. Five years later, a teacher in Illinois shocked children with a cattle prod. In 1977, the Supreme Court upheld the legality of corporal punishment in a case where a Florida middle-schooler was struck 20 times with a paddle and had to be hospitalized. There are hundreds of similar cases, but unless school authorities acted with demonstrable malice or permanently injured a student, state and federal courts granted them legal immunity, making it difficult to secure convictions or even to bring charges. As recently as 2007, a circuit court ruled against a girl who was beaten bloody for missing the tardy bell.

Worst of all, formalism tended to equate inflexibility with fairness. During the 1990s, many school districts adopted "three strikes" or "zero tolerance" policies, in which minor infractions automatically triggered suspension or arrest. These policies were facially neutral but in practice swept students of color, students with disabilities and poor or working-class students into the principal's office and (increasingly) into the criminal justice system, forming the "school-to-prison pipeline." They also led to utterly ridiculous outcomes, such as the kindergartner suspended for holding his fingers in the shape of a gun, and prevented educators from redirecting or forgiving wrongdoers. Standardized punishment abandoned moral correction for a narrow defense of order and shielded educators from liability by relieving them of responsibility.

Where does all this leave us?

It is easy to see why courts and the public are hesitant to reinstate robust notions of in loco parentis. Consensus on anything but the most basic moral questions is unlikely, and allowing teachers to correct children as their parents would seems dangerous in light of pervasive prejudice and abuse. On the other hand, it is not clear that procedural approaches have worked any better. Overly punitive policies have criminalized rather than corrected children, while vague protocols shield schools not only from dissatisfied parents but also from meaningful democratic oversight.

That leaves a third alternative: finding a middle ground between the broad deference of in loco parentis and the narrow focus on legal rights. Doing so will require a working consensus on disciplinary methods, which in turn will depend on recognizing past injustices and developing trust, virtue and accountability in local communities.

These are lofty but hardly impossible goals. Schools are already experimenting with educative forms of punishment, particularly those that emphasize reciprocity and atonement. There is a growing recognition that practical judgment is intrinsic to teachers' professional practice. Numerous studies have demonstrated the benefits of community oversight and public deliberation.

Combining these elements can lead us to common-sense changes in school discipline, focused on flexibility and moral growth rather than reflexive condemnation. Rather than limiting schools' ability to punish children, families and educators would be better served working together to ensure discipline practices are equitable, beneficial and morally legitimate.

Campbell F. Scribner is an assistant professor of education at the University of Maryland, College Park, and the coauthor of "Spare the Rod: Punishment and the Moral Community of Schools."