Ninth Circuit Court of Appeals finds no clearly established parental right to use corporal punishment By: Professor Susan Bitensky, Detroit College School of Law at Michigan State University. An excellent legal reference for attorneys considering filing lawsuits in cases of school corporal punishment, written by a New Mexico attorney who succeeded despite appeals by the defendants all the way to the U.S. Supreme Court (which declined the case): Roesler, John, B., J.D. Public School Liability: Constitutional Tort Claims for Excessive Punishment and Failure to Supervise Students. American Jurisprudence, Trials, v. 48 (1993). In Sweaney v. Ada County, Idaho,1997 WL 393076 (no. 96-35156, July 15, 1997), the United States Court of Appeals for the Ninth Circuit ruled that parents do not have a clearly established right under the U.S. Constitution to corporally punish their children. The case arose from the following facts. When Brian Sweeney, a middle school student, failed to return home on time after basketball practice, his mother went to look for him at the school. Mrs. Sweaney found Brian in the gym dressed in basketball shorts and a shirt. She struck him three or four times with a belt. Brian responded by laughing at her and telling her that blows did not hurt him. Mrs. Sweaney hit him two or three more times. Subsequently, an investigating deputy observed a bruise on Brian's arm that was "red out-lined' and 'about 1-1/4 (inches) long and 1/4 inch wide." Brian told the deputy that the bruise could have come from the belt or something else. The deputy did not observe any other bruises on Brian's body. The deputy also interviewed Mrs. Sweaney. She explained that Brian's failure to return home on time had caused her concern for his safety since two months earlier another student had shot at Brian with a handgun while the latter was walking home from school. She added that she struck Brian with a belt after he had "smarted off" to her. An Ada County Prosecutor filed a misdemeanor complaint against Mrs. Sweaney for willfully causing her son to be injured in violation of Idaho law. A jury ultimately acquitted Mrs. Sweaney of the charge. The lower court was persuaded that the doctrine of qualified immunity compelled dismissal of the case against the deputy. (The suit was also dismissed as to the other defendants on other grounds.) The doctrine of qualified immunity protects government officials from civil liability insofar as their actions do not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Mrs. Sweaney appealed to the U.S. Court of Appeals for the Ninth Circuit on the theory that qualified immunity was not applicable because of the deputy's conduct violated an alleged parental right, under the U.S. Constitution's Court and Fourteenth Amendments, to inflict corporal punishment upon the parent's child. Mrs. Sweaney predicated her theory on federal court cases which deal with various aspects of parental rights under the Constitution but none of which specifically consider the right to strike a child without being the subject to criminal investigation and charges. The Court of Appeals refused to find that more general parental constitutional rights- such as the right to bring the children or a right to privacy- clearly establish a federal constitutional right in parents to corporally punish their children. The court of Appeals so held even though it noted "that a court could interpret these cases broadly to hold that a parent has a constitutional right to strike a child with a belt." That is, the Court did not repudiate that there is a basis in the precedents for possible future judicial recognition of a parental right to impose corporal punishment; the Court instead limited its ruling to finding that such a right has not been so clearly established as to alert a reasonable official to its existence. Note: Susan Bitensky's article Spare the Rod, Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children has been accepted for publication by the UNIVERSITY OF MICHIGAN JOURNAL OF LAW REFORM. Amicus Curiae brief by Center for Effective discipline Summary: AMICUS CURIAE BRIEF ON BEHALF OF THE CENTER FOR EFFECTIVE DISCIPLINE, END PHYSICAL PUNISHMENT OF CHILDREN (EPOCH-USA), AND THE NATIONAL COALITION TO ABOLISH CORPORAL PUNISHMENT IN SCHOOLS (NCACPS), IN SUPPORT OF DEFENDANT-APPELLANT TAMMY JO HUNTER "Amici file this brief in support of Appellant-Defendant Tammy Jo Hunter to provide the Court with additional information regarding the consideration of corporal punishment against children in custody disputes under Michigan's Child Custody Act.  Specifically, Amici have compiled the legislative facts pertinent and necessary for a proper interpretation of the Michigan law at stake, which demonstrate that the risks and effects of child corporal punishment are no different than the risks and effects of physical punishment on human beings generally, and are probably much worse, as children are still developing cognitively and emotionally.  Amici respectfully request this Court rule in favor of Defendant-Appellant." See legal argument: