University of Kansas Law Review
The Supreme Court's refusal to resolve the conflict over corporal punishment in public schools perpetuates the uncertainty over children and parents' legal rights. The use of corporal punishment in public schools unconstitutionally abridges parents' right to direct the upbringing of their children because it forces parents to accept the emotional and physical marks that corporal punishment leaves on their children. In 1977, the Supreme Court addressed the constitutionality of corporal punishment in Ingraham v. Wright. The Court held that the cruel and unusual punishment clause of the Eighth Amendment applied only to criminal punishments and thus provided no protection against the imposition of corporal penalties by school authorities. The Court further held that the procedural due process guaranteed by the Fourteenth Amendment did not require schools to provide notice and a hearing before application of physical discipline.
Unlike the issues addressed in Ingraham, one can argue that the Ninth Amendment provides a constitutional challenge to corporal punishment in public schools. Specifically, that parental rights are a clear example of rights "retained by the people." Although Ingraham precluded federal constitutional challenges to corporal punishment based on the Eighth and Fourteenth Amendments, a federal cause of action based on the Ninth Amendment remains, and thus, the continuing legal battle against corporal punishment should be revisited under this approach.
David R. Hague, Comment: The Ninth Amendment: A Constitutional Challenge to Corporal Punishment in Public Schools, 55 U. Kᴀɴ. L. Rᴇᴠ. 429 (2007).