Ability of the State Board of Education to Prohibit Corporal Punishment in the Public Schools

STATE BOARD OF EDUCATION--SCHOOLS--STUDENTS--TEACHERS--PUNISHMENT--CHILD ABUSE--Ability of the State Board of Education to Prohibit Corporal Punishment in the Public Schools

1.   RCW 28A.305.130(8) empowers the State Board of Education to adopt rules to secure regularity of attendance, prevent truancy, secure efficiency, and promote the true interest of the common schools.  RCW 28A.305.130(8) does not authorize the State Board to adopt a rule prohibiting corporal punishment in the public schools.

2.   RCW 28A.305.160 empowers the State Board of Education to adopt rules prescribing the substantive and procedural due process guarantees of pupils in the common schools.  RCW 28A.305.160 does not authorize the State Board to adopt a rule prohibiting corporal punishment in the public schools.  RCW 28A.305.160 does empower the State Board to adopt rules to ensure that corporal punishment is reasonable and moderate.

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                                                                   June 26, 1992

HonorableGrace Cole
State Representative
Post Office Box 40602
Olympia, Washington  98504-0602
                                                                                                                 Cite as:  AGO 1992 No. 10

Dear Representative Cole:

            By letter previously acknowledged, you have asked the following paraphrased question:

            Do RCW 28A.305.130(8) or 28A.305.160 empower the State Board of Education to prohibit the use of corporal punishment in the public schools?

The answer to this question is no.

                                                                BACKGROUND

            The State Board of Education (State Board) was created by the Legislature under statutes now codified in chapter 28A.305 RCW.  The State Board is comprised of two members[1]elected from each of the state's congressional districts, one at large member elected by the boards of directors of the state's public school districts, one at large member elected by the boards of directors of the state's private schools, and the Superintendent of Public Instruction.  RCW 28A.305.010.

            Included among the State Board's general powers and duties is the authority to prescribe such rules for the "general government of the common schools, as shall seek to secure regularity of attendance, prevent truancy, secure efficiency, and promote the true interest of the common schools."  RCW 28A.305.130(8).   In addition, pursuant to RCW 28A.305.160, the State Board is directed to establish rules and regulations prescribing the substantive and procedural due process guarantees of all pupils in the common schools.  RCW 28A.305.160 reads:

                        The state board of education shall adopt and distribute to all school districts lawful and reasonable rules and regulations prescribing the substantive and procedural due process guarantees of pupils in the common schools.  Such rules and regulations shall authorize a school district to use informal due process procedures in connection with the short term suspension of students to the extent constitutionally permissible:  PROVIDED, That the state board deems the interest of students to be adequately protected.

(Emphasis added.)[2]

            At the local level each school district is governed by a board of directors.  RCW 28A.315.450.  The boards of directors of local school districts are required to enforce the State Board's rules and to adopt rules regarding student discipline which are consistent with State Board regulations.  In particular, RCW 28A.600.010 provides:

                        Every board of directors, unless otherwise specifically provided by law, shall:

                        (1)  Enforce the rules and regulations prescribed by the superintendent of public instruction and the state board of education for the government of schools, pupils, and certificated employees.

                        (2)  Adopt and make available to each pupil, teacher and parent in the district reasonable written rules and regulations regarding pupil conduct, discipline, and rights, including but not limited to short-term and long-term suspensions.  Such rules and regulations shall not be inconsistent with law or the rules and regulations of the superintendent of public instruction or the state board of education and shall include such substantive and procedural due process guarantees as prescribed by the state board of education under RCW 28A.305.160.  Commencing with the 1976-77 school year, when such rules and regulations are made available to each pupil, teacher and parent, they shall be accompanied by a detailed description of rights, responsibilities and authority of teachers and principals with respect to the discipline of pupils as prescribed by state statutory law, superintendent of public instruction and state board of education rules and regulations and rules and regulations of the school district.

                     . . . .

                        (3)  Suspend, expel, or discipline pupils in accordance with RCW 28A.305.160.

(Emphasis added.)

            In addition, RCW 28A.600.020(3) gives the board of directors for each local school district the authority to establish written procedures for student discipline.  RCW 28A.600.020(3) reads, in part:

                        In order to preserve a beneficial learning environment for all students and to maintain good order and discipline in each classroom, every school district board of directors shall provide that written procedures are developed for administering discipline at each school within the district.  Such procedures shall be developed with the participation of parents and the community, and shall provide that the teacher, principal or designee, and other authorities designated by the board of directors, make every reasonable attempt to involve the parent or guardian and the student in the resolution of student discipline problems.

(Emphasis added.)

            Finally, RCW 28A.600.040 provides that all students in the common schools are to

            comply with the rules and regulations established in pursuance of the law for the government of the schools, shall pursue the required course of studies, and shall submit to the authority of the teachers of such schools, subject to such disciplinary or other action as the local school officials shall determine.

(Emphasis added.)

            In summary, the State Board is authorized to adopt rules for the general government of the common schools "as shall seek to secure regularity of attendance, prevent truancy, secure efficiency, and promote the true interest of the common schools" and to adopt rules prescribing the substantive and procedural due process guarantees of students.  RCW 28A.305.130(8), .160.  Local school boards, on the other hand, may adopt rules for administering student discipline.  RCW 28A.600.010.  Public school students are expected to comply with the rules adopted by both the local and state boards and to submit to the authority of the teachers "subject to such disciplinary or other action as the local school officials shall determine."  RCW 28A.600.040.

                                                                    ANALYSIS

            We begin our analysis by noting that the powers of the State Board, as an administrative agency, are limited to those which are expressly granted by the Legislature or necessarily implied therein.  McGovern v. Department of Social & Health Servs., 94 Wn.2d 448, 450, 617 P.2d 434 (1980); AGO 1975 No. 1, at 4-5.  An agency's regulation cannot conflict with the intent and purpose of its enabling legislation.  American Network, Inc. v. Washington Util. & Transp. Comm'n, 113 Wn.2d 59, 776 P.2d 950 (1989).  We must therefore determine whether the State Board's enabling statutes, either expressly or by necessary implication, confer power to ban corporal punishment.[3]

            Based on our review of chapter 28A.305, there are two statutes which might empower the State Board of Education to adopt a regulation prohibiting corporal punishment.  RCW 28A.305.130(8) authorizes the State Board to

            prescribe such rules for the general government of the common schools, as shall seek to secure regularity of attendance, prevent truancy, secure efficiency, and promote the true interests of the common schools.

RCW 28A.305.160 provides that the State Board shall adopt

            lawful and reasonable rules and regulations prescribing the substantive and procedural due process guarantees of pupils in the common schools. . . .

            RCW 28A.305.130(8) does not expressly authorize the State Board to adopt regulations relating to discipline that may be administered to a student.  Therefore, we must analyze whether this power is conferred by necessary implication.

            RCW 28A.305.130(8) grants the State Board authority to adopt rules "to secure regularity of attendence, prevent truancy, secure efficiency, and promote the true interest of the common schools."  Although RCW 28A.305.130(8) refers to rules that promote the true interest of the common schools, it is not necessarily a broad grant of authority.  It appears to be  limited to the object's attendance, prevention of truancy, and efficiency.  We interpreted RCW 28A.305.130(8)[4]in AGO 1975 No. 1.  The question was whether the State Board of Education had the authority to implement a statewide affirmative action policy that would be binding on all local school districts.  We stated that RCW 28A.305.130(8) did not confer such authority.  AGO 1975 No. 1 stated:

            We would, however, be most reluctant to place much weight on [RCW 28A.305.130(8)] insofar as the regulation of employment policies is concerned, except to the extent that the state board might legitimately find it necessary to require a particular practice in order to achieve one or more of the objectives stated therein.  While it might be possible, within a given school district, that an affirmative action program for the employment of teachers or other personnel would bear an appropriate relationship to one of these objectives, we doubt that this could properly be said without exception in the case of all such districts so as to afford authority for the kind of rule or regulation apparently visualized by your request.

            Thus, in summary at this juncture, we do not find in any existing statutes which can be read as authorizing . . . the . . . board of education to adopt rules or regulations to require all local school districts to formulate and implement such affirmative action programs as you have in mind.

AGO 1975 No. 1, at 6-7 (emphasis in original).

            Similarly, in this situation, we seriously doubt that the prohibition of corporal punishment in the public schools could necessarily be supported by one or more of the statewide objectives of securing regularity of attendance, the prevention of truancy, or the securing of efficiency.

            Even if the prohibition of corporal punishment could be said to achieve these ends, it is our opinion that RCW 28A.305.130(8) does not confer such broad authority in light of other special statutes respecting corporal punishment in particular.  In the area of discipline, the Legislature has made specific grants of authority to the boards of directors of the local school districts.  RCW 28A.600.010(2) provides that the boards of directors shall adopt "written rules and regulations regarding pupil conduct [and] discipline".  RCW 28A.600.010(3) empowers the boards of directors to "discipline pupils in accordance with RCW 28A.305.160."  RCW 28A.600.020(3) provides that the boards of directors "shall provide that written procedures are developed for administering discipline" within the district.  Finally, RCW 28A.600.040 provides that students in the common schools are "subject to such disciplinary . . . action as the local school officials shall determine."

            Thus, the Legislature has made a general grant of authority to the State Board in RCW 28A.305.130(8) to achieve certain objectives to adopt rules and a specific grant of authority to the local school district boards of directors to adopt rules regarding the conduct of student discipline and to discipline students.

            In interpreting these legislative grants of authority we are guided by two rules of statutory construction.  First, statutes that relate to the same basic subject matter are to be read together as constituting a unified whole, to the end that a harmonious total statutory scheme evolves which maintains the integrity of the respective statutes.  State v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974); Estates of Donnelly, 81 Wn.2d 430, 435, 502 P.2d 1163 (1972).  Second, when two statutes relate to the same subject, the specific statute supersedes the general statute when both apply.  General Tel. Co. v. Utilities & Transp. Comm'n, 104 Wn.2d 460, 464, 706 P.2d 625 (1985).

            Here the grant of authority to the State Board and the district boards of directors relates to the same subject--the operation of the common schools.  However, the grant of authority to the district boards of directors with regard to discipline is more specific than the general grant to the State Board.  Therefore, in reading these statutes together and applying the more specific, we conclude that RCW 28A.305.130(8) does not empower the State Board to adopt regulations prohibiting corporal punishment.

            We recognize that RCW 28A.600.010(2) provides that the rules adopted by the district boards of directors shall not be inconsistent with the rules of the State Board.  Thus, we might reconcile the grants of authority to the State Board and district boards of directors by saying that the district directors must follow the State Board when it adopts rules pursuant to RCW 28A.305.130(8).  In other circumstances, this would be the proper interpretation.

            However, once again, in the area of discipline the Legislature was more specific.  RCW 28A.600.010(3) provides that the discipline of pupils shall be in accordance with RCW 28A.305.160, which authorizes the State Board to adopt rules prescribing the substantive and procedural due process guarantees of students.

            When viewed as a unified whole, it appears that the Legislature intended statewide standards--set by the State Board pursuant to RCW 28A.305.160--prescribing both the substantive and procedural due process guarantees of students.  Within these statewide standards, the board of directors of each local school district is primarily empowered to choose the type of discipline it deems appropriate, consistent with State Board regulations.

            This leaves the question of whether the authority of the State Board under RCW 28A.305.160 empowers the State Board to prohibit corporal punishment.  In our judgment, the answer is no.  RCW 28A.305.160 authorizes the State Board to adopt "lawful and reasonable rules and regulations prescribing the substantive and procedural due process guarantees of pupils in the common schools."  This statute empowers the State Board to establish both procedural and substantive rights of students in the area of discipline.  However, the State Board's authority is limited to lawful and reasonable rules prescribing substantive and procedural due process guarantees.

            In our view RCW 28A.305.160 does not empower the State Board to prohibit corporal punishment because reasonable corporal punishment is otherwise recognized as lawful under both federal and state law.  We reach this conclusion for a combination of reasons.  First, the imposition of reasonable corporal punishment does not amount to a per se violation of a student's due process rights.  The United States Supreme Court addressed this issue in Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977).  In Ingraham the Court rejected a claim by students who had received a paddling that their Fourteenth Amendment due process rights had been violated.[5]The Court noted that a "single principle has governed the use of corporal punishment since before the American Revolution; Teachers may impose reasonable but not excessive force to discipline a child."  Id. at 661 (emphasis added).  The Court concluded that:

                        The concept that reasonable corporal punishment in school is justifiable continues to be recognized in the laws of most States. . . . It represents "the balance struck by this country," . . . between the child's interest in personal security and the traditional view that some limited corporal punishment may be necessary in the course of a child's education.  Under that longstanding accommodation of interests, there can be no deprivation of substantive rights as long as disciplinary corporal punishment is within the limits of the common-law privilege.

Id.at 676 (emphasis added).  RCW 28A.305.160 authorizes the State Board to adopt rules setting out the substantive and due process guarantees of students.  However, reasonable corporal punishment does not violate student due process rights.[6]

            Secondly, Washington statutory law at RCW 9A.16.100 specifically recognizes that reasonable and moderate physical discipline is not unlawful.  In this respect, Washington law is consistent with the common law described by the Supreme Court in Ingraham.  RCW 9A.16.100 also specifically prohibits certain acts of corporal punishment.  RCW 9A.16.100 provides:

                        It is the policy of this state to protect children from assault and abuse and to encourage parents, teachers, and their authorized agents to use methods of correction and restraint of children that are not dangerous to the children.  However, the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child.  Any use of force on a child by any other person is unlawful unless it is reasonable and moderate and is authorized in advance by the child's parent or guardian for purposes of restraining or correcting the child.

                        The following actions are presumed unreasonable when used to correct or restrain a child: (1) Throwing, kicking, burning, or cutting a child; (2) striking a child with a closed fist; (3) shaking a child under age three; (4) interfering with a child's breathing; (5) threatening a child with a deadly weapon; or (6) doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks.  The age, size, and condition of the child and the location of the injury shall be considered when determining whether the bodily harm is reasonable or moderate.  This list is illustrative of unreasonable actions and is not intended to be exclusive.

(Emphasis added.)

            Taken together, Ingraham and RCW 9A.16.100 establish two principles.  First, reasonable and moderate corporal punishment is lawful and does not violate the substantive and procedural due process guarantees of students.  Second, excessive and unreasonable corporal punishment is unlawful and does violate the substantive and procedural due process guarantees of students.  As the Court pointed out in Ingraham, there is no due process violation "as long as disciplinary corporal punishment is within the limits of the common-law privilege."  430 U.S. at 676.  In Washington the common law has been essentially codified in RCW 9A.16.100.

            Since under both federal and state law reasonable and moderate corporal punishment is expressly recognized as lawful and consistent with due process guarantees, it is our opinion that RCW 28A.305.160 does not empower the State Board to prohibit the practice entirely.  Although the State Board cannot ban corporal punishment, RCW 28A.305.160 does empower the State Board to adopt regulations to ensure that corporal punishment is reasonable and moderate.  After all, excessive and unreasonable corporal punishment constitutes a due process violation and is unlawful under RCW 9A.16.100.

            In this respect, we note rules adopted by the State Board that regulate (but do not ban) corporal punishment.  For example, WAC 180-40-235(3) provides that corporal punishment consisting of spanking shall only be administered "outside the view of other students" and shall be "witnessed by another school district employee."  WAC 180-40-235(4) provides that "[n]o cruel and unusual form of corporal punishment shall be inflicted upon any student."  WAC 180-40-235(5) provides that "[o]nly reasonable and moderate force shall be applied to a student and no form of corporal punishment shall be inflicted upon the head of a student."

            In summary, we conclude that neither RCW 28A.305.130(8) nor .160 authorizes the State Board to impose an outright ban on corporal punishment.  RCW 28A.600.010(2) (authorizing local boards to adopt reasonable rules relating to student discipline) and RCW 28A.600.040 (providing that all pupils who attend the common schools "shall submit to the authority of the teachers of such schools, subject to such disciplinary or other action as the local school officials shall determine") indicate the Legislature placed with the local school districts the primary discretion to determine, within the bounds of the law, and such lawful and reasonable restrictions as the State Board may establish, whether corporal punishment should be used within the district.  RCW 28A.305.160 empowers the State Board to regulate corporal punishment to the extent its rules relate to the substantive and procedural due process rights of the students.

            We recognize there may be sound public policy reasons in  favor of banning corporal punishment in the public schools.  However, the Legislature has placed this policy decision at the local level giving each school district the discretion to determine which types of disciplinary measures, including corporal punishment, should be imposed within the district.  And the Legislature specifically recognizes in RCW 9A.16.100 that reasonable and moderate corporal punishment is lawful.  School districts electing to permit corporal punishment must employ substantive and procedural due process standards consistent with the State Board's regulations and other pertinent statutes.  However, the State Board does not have the authority to prohibit corporal punishment within the public schools.

            We trust this opinion will be of assistance to you.

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    ALICE M. BLADO
                                    Assistant Attorney General

                                    WILLIAM B. COLLINS
                                    Senior Assistant Attorney General

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