You Can't Touch Me!

Abstract

A student started to grab and push around another student in a school hallway. Spotting the apparent aggression, a teacher hurried toward the two students, shouting, Stop. Blatantly ignoring the directive and seeing the teacher approach them to intervene, the bully confidently exclaimed, You can't touch me. Students aren't alone in their belief that the law protects them from teachers touching them. School personnel often have the same perception, attributing it to the student's constitutional or other legal rights and consequently concerned about liability. What's myth, and what's fact? Constitutional Rights Students do have constitutional protections from physical contact by public school officials through two amendments: the Fourth Amendment's seizure language and the Fourteenth Amendment's substantive due process based on the student's liberty interest in bodily integrity. But let's probe these rights further. First, would the teacher's intervention amount to a seizure? The answer depends on more factual information, but touching doesn't necessarily equate to seizing. Second, the Fourth Amendment applies only to unreasonable governmental seizures. The prevailing standard in public schools is whether the teacher has a reasonable suspicion that student conduct is illegal or violates school policy. The teacher in this scenario clearly seems to have a reason to suspect that the physical interaction between the students constituted bullying or other offensive contact, which is contrary to most school conduct codes. Similarly, a reasonableness test, which includes the age and gender of the students and the nature and severity of the infraction, would be relevant. Courts have recognized that public school officials should have ample discretion in applying this multifactor test. Indeed, I can't find a court decision where a student sued, much less succeeded, under the Fourth Amendment in such circumstances. For the Fourteenth Amendment, precedents clearly establish that, in the public school context, the plaintiff student would have to prove that the teacher's intervention was so extreme as to shock the conscience of society, which the judge represents. It's hard to imagine that a teacher's conduct in such a case would be so extreme that it would reach this rarefied level. Once again, the odds are overwhelmingly against a court ruling in favor of the student. If the scenario were in a private school, these constitutional rights would be inapplicable. These rights require action, and though a private school receives federal financial assistance, that does not make the school or its teachers agents of the state. Other Federal Civil Rights The federal civil rights laws, which extend beyond the public schools, protect students from discrimination based on race, ethnicity, or national origin (Title VI), gender (Title IX), and disability (Section 504 and the ADA). However, even if the aggressor is a member of one or more of these protected groups, it's hard to conceive how the teacher's intervention would constitute discrimination. Quite the contrary, the teacher would be expected to intervene promptly and effectively on behalf of the victim if the aggression amounted to race -, gender -, or disability - based harassment. State Law State civil rights laws are also likely to support the teacher's intervention. Anti - bullying laws at the state level would also be relevant, and they would be likely to support rather than stop the teacher's action. Forty - one states already have such laws, and their number and scope is on the rise. Tort liability is another aspect of state law to consider. As long as the teacher's use of force is deemed reasonable, a student is not likely to be successful when he claims that he's been assaulted or battered. …