The killing of George Floyd by the Minneapolis police and the heavy-handed dispersal of Black Lives Matter protests by police in other cities have provoked calls to end “qualified immunity” for law enforcement in the United States. Qualified immunity is the legal doctrine that protects government employees from being sued for carrying out their duties. In Pierson v. Ray (1967) and a string of subsequent cases, U.S. federal courts have ruled that unless police knowingly violated established constitutional or statutory rights—and usually, violated them in ways specifically outlined in previous cases—lawsuits against them should be summarily dismissed.

Immunity allows government employees to do their jobs without exposure to personal liability or frivolous lawsuits, but it also presupposes that government agencies abide by clearly delineated protocols, established through democratic deliberation and subject both to public scrutiny and constitutional scrutiny by the courts. It goes without saying that when police officers falsify paperwork, engage in criminal conspiracies, or seal their disciplinary records, they undermine these premises, making qualified immunity one more ostensibly neutral policy that in fact obstructs accountability and justice.

One might argue that the solution in this case is not to end qualified immunity as such, but to reform the policies that it sanctions, and that the venue for doing so is not the courts but local government. While we are certainly amenable to local democratic participation, in our forthcoming book, Spare the Rod: Punishment and the Moral Community of Schools, Bryan Warnick and I contend that these are false choices, implicitly denying courts a role in public dialogue and, by imposing inflexible limitations on judicial review, stripping them of the responsibilities of judgment. It is in that context that we challenge the application of qualified immunity in U.S. schools.Even when one omits the troubling record of unchecked police violence in classrooms, qualified immunity bears heavily on school punishment. Teachers and administrators have been granted immunity for punishing student speech and conducting unconstitutional strip searches, but its effects on political deliberation are clearest in cases of corporal punishment.

The U.S. Supreme Court established due process rights for student suspensions during the 1960s, but in Ingraham v. Wright (1977), it did not extend the same standards to beating children with paddles. The majority offered four broad reasons:

• Whipping was a traditional remedy. Because schoolteachers had been striking children for centuries, apparently with public approval, the constitutional framers could not have considered the practice a “cruel and unusual punishment” prohibited under the Eighth Amendment.

• Schools are open institutions. They are governed by democratically elected boards and allow students to return home at night, necessitating fewer safeguards against “cruel and unusual” punishment for children than for incarcerated prisoners.

• Corporal punishment is regulated. Florida had general statutes requiring that corporal punishment be administered calmly by the principal, and in response to the Ingraham incident (in which a principal viciously struck a child more than twenty times, raising a hematoma that kept him out of school for a week) the state established even more specific boundaries, standardizing the size of paddles, prohibiting blows anywhere but the buttocks, and limiting the number of strikes to seven.

• State statutes already prohibited excessive punishment. Thus, teachers would be liable for abuse without implicating new constitutional protections.

Our book focuses on the tenuous basis for the first two claims—longevity does not determine legality, and schools had become compulsory and increasingly bureaucratic over the previous fifty years, in ways that insulated them from public accountability—but the latter claims are also problematic, and for related reasons.

One might view Ingraham as a model of judicial restraint, in which the court urged states to reform school punishment through “the normal processes of community debate and legislative action” and encouraged dissatisfied parents to pursue civil litigation or criminal charges rather than constitutional remedies. (In his dissent, Justice White quipped that rather than taking the case’s constitutional challenge seriously, the majority merely provided “a lengthy word of advice with respect to the drafting of civil complaints.”) Yet that stance ignored the impediments that qualified immunity posed.

Historically, state courts had deferred almost entirely to schools on matters of discipline, drawing the line only at permanent injury, and Florida had never once ruled against a teacher for striking a student. Even as states formalized criteria for corporal punishment, vaguely worded policies could justify all sorts of harsh treatment. For example, in Texas in 2007, Jessica Serafin, an eighteen-year-old girl, left her high school campus to get breakfast and returned before the tardy bell. However, for violating the school’s “closed campus” rule, she was struck with a four-foot-long piece of wood, leaving her bottom bloodied and her hand swollen. Serafin sued the district for battery but lost at the state and appellate levels. The circuit court ruled that corporal punishment “is only a deprivation of substantive due process rights when it is ‘arbitrary, capricious, or wholly unrelated to the legitimate state goal of maintaining an atmosphere conducive to learning,’” and pointed out that Texas had statutes to prevent abuse. As in so many other cases, though, the court made no inquiry into whether the practice in this case did serve an educational purpose or whether the school actually complied with existing statutes, and made no mention of the seemingly disproportionate nature of the penalty. In many states, immunity statutes further protect teachers who claim to act in good faith, forcing plaintiffs to prove malicious intent. Some states have expanded immunity to safeguard public employees not merely from civil suits but from criminal prosecution, making it far more difficult to bring abusive teachers to trial. Thus, in cases without ironclad evidence, those in which existing law was indeterminate, or those in which teachers claimed to follow districts’ formal procedures (however tenuously), courts have summarily dismissed charges.

In the decade after Ingraham, federal appeals courts invoked substantive due process to establish some limits on corporal punishment. (Substantive due process is the protection of unenumerated rights—in this case, bodily safety.) In Hall v. Tawney (1980), in which an elementary school student was struck by a metal drawer divider, and Garcia v. Miera (1987), in which a nine-year-old girl was held upside down and beaten bloody across the front of her thighs with a split paddle, appellate courts found that educators’ actions sufficiently “shocked the conscience” to implicate due process and put excessive punishment beyond the bounds of law. (The Fifth Circuit Court of Appeals, which encompasses Texas, Louisiana, and Mississippi, is the only circuit that has still not established firm rights against excessive punishment.) These rulings were careful to respect federalism, pointing out that their orders were merely “supplementary” to state-level statutes and rulings, and applied in only the most extreme cases.

We find that approach admirable but insufficient.

From our perspective, the fundamental choice is not whether courts will expand the scope of student rights by fiat or preserve a flawed but serviceable system of state and local decision-making, but whether they will challenge school districts to earn the legitimacy that they claim. Even narrow rulings for students are more likely to impel legislative reform than blanket deference to teachers and districts. As it stands, federal courts’ reluctance to distinguish between degrees of punishment has allowed state courts, legislatures, and school boards to do the same, holding states beneath their own constitutional standards. By dismissing some lawsuits before publicization of the facts and discouraging plaintiffs from filing others, they have denied voters and lawmakers a basis for serious judgment. Of course, in circular fashion, it was the oversight of exactly these groups that Ingraham v. Wright took for granted when it exempted schools from the Eighth Amendment. Absent a strong statement from the judiciary, it seems that the future of corporal punishment will be determined by prevailing prejudice, bureaucratic imperatives, or the niggling of tort law, none of which encourage serious public deliberation.

More stringent forms of review—whether “intermediate scrutiny” or a robust version of the “rational basis” test—raise the possibility of dialogue between courts, local governments, and the public without upsetting judicial federalism. In fact, this was precisely the virtue of the dissent in Ingraham. Rather than issuing a sweeping judgment on all forms of corporal punishment, as the majority did, Justice White tailored a narrower indictment of an obviously abusive example of the practice. In recent decades, the same approach has successfully controlled decisions in other areas of educational policy, particularly related to school finance and questions of race and gender in university admissions. In these instances, federal judges have not usurped the judgment of local administrators but, through serious consideration of the facts at hand, have impelled them to develop more rigorous procedures to safeguard student rights. The same standards could be profitably applied to questions of corporal punishment, which certainly implicates “quasi-fundamental” rights against racial and gender bias, as well as more explicit questions of substantive due process. Whatever one thinks about the physical punishment of schoolchildren in an abstract sense, in case after case there has been no proportional relationship between the penalty and the alleged misbehavior, no demand that districts prove the efficacy of their methods, nor any serious consideration of states’ self-imposed limits on teacher behavior.

We believe that no one is well served by the current reliance on vague formalism and inflexible legal doctrines in the adjudication of school punishment. And while we accept that state and local decision-making may not lead to the corporal punishment bans that many of our colleagues favor, we see federal court rulings as an impulse and guide to democratic debate.

Campbell F. Scribner is a historian of education. He is the author of The Fight for Local Control: Schools, Suburbs, and American Democracy (Cornell University Press, 2016), as well as articles in the American Journal of Education, Educational Theory, and History of Education Quarterly. He is a coauthor (with Bryan Warnick) of the book, Spare the Rod: Punishment and the Moral Community of Schools.