Can a Texas school district ban corporal punishment and set its own rules for physically restraining students?

Plain-English summary

Senator Kenneth Armbrister, chair of the Senate Committee on Criminal Justice, asked the Attorney General whether the Arlington Independent School District's policy on corporal punishment and physical restraint was valid under state law. The policy had two parts: it prohibited corporal punishment outright (no spanking or paddling for code-of-conduct violations), and it allowed any district employee to use physical restraint when the employee reasonably believed it was necessary to protect a person from injury, take a weapon or dangerous object, protect property from serious damage, remove a student who refused a lawful command, or restrain an irrational student.

The Attorney General concluded that, as a general matter, the policy was within the district's authority. Texas law gives local school boards broad control over student discipline. A board oversees the management of the district under Education Code section 11.051(a), must adopt a student code of conduct under section 37.001(a), and "may adopt rules for the safety and welfare of students, employees, and property" under section 37.102(a). The opinion noted in passing that if Arlington ever amended its policy to permit corporal punishment, federal courts, particularly the Fifth Circuit, have left that choice largely to local authorities, while Texas statutes (a Penal Code defense for the use of force to maintain discipline, and a qualified immunity for professional employees) bear on how corporal punishment, if allowed, could be applied. Because Arlington's policy forbade corporal punishment, those points were not actually at issue.

The opinion drew one real line, and it was about special education. Under Education Code section 37.0021(d), the Commissioner of Education is required to adopt procedures for the use of restraint and time-out on students receiving special education services. The Commissioner had proposed such a rule (to be codified at 19 Texas Administrative Code section 89.1053), which would limit physical restraint to the reasonable force necessary to address an emergency, require it to stop once the emergency ends, and require it to protect the student's health and safety. So for special education students, the opinion said the district's policy had to be implemented in light of that rule and the federal Individuals with Disabilities Education Act (20 U.S.C. sections 1400-1462). The opinion did not pass on whether any specific restraint in a specific case would be reasonable; it said that kind of fact question is outside what an attorney general opinion can decide.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The special-education restraint rule discussed here was only a proposed rule in 2002; the Education Code provisions and the Texas Administrative Code section it describes have been amended and renumbered since.

What the opinion meant for those who asked

Senator Armbrister and the Criminal Justice Committee (what the opinion held for them): The opinion answered that the Arlington policy was generally a valid exercise of the district's authority, and it declined to judge whether any particular application of physical restraint would be reasonable, treating that as a fact question outside the opinion process.

School boards and district administrators (what the opinion held for them): The opinion treated a policy that bans corporal punishment and defines when staff may use physical restraint as falling within the board's authority under Education Code sections 11.051(a), 37.001(a), and 37.102(a). It also held that for students receiving special education services, such a policy had to be applied consistently with the Commissioner's restraint and time-out procedures under section 37.0021(d) and with the federal IDEA.

Parents of students in special education (what the opinion held for them): The opinion identified that restraint of a special education student was subject to extra limits the Commissioner of Education was directed to set under section 37.0021(d), and to the federal IDEA, on top of the district's own policy.

Common questions

Can a Texas school district ban corporal punishment entirely?
The opinion treated that choice as within the district's authority. A board may adopt rules for the safety and welfare of students under Education Code section 37.102(a), and a policy prohibiting spanking or paddling is such a rule.

Can school staff physically restrain a student?
The opinion concluded a policy authorizing physical restraint in defined situations (to prevent injury, take a weapon, protect property, remove a defiant student, or restrain an irrational one) was generally within the district's authority. It did not decide whether any specific use of restraint was reasonable; that depends on the facts.

Are there special rules when the student receives special education services?
Yes. The opinion pointed to Education Code section 37.0021(d), which directed the Commissioner of Education to adopt restraint and time-out procedures for special education students, and to the federal IDEA. A district's restraint policy had to be applied in light of those.

Did the Attorney General say whether a particular restraint went too far?
No. The opinion said questions about whether force in a given situation was "reasonable" or "excessive" depend on the facts and are beyond the scope of an attorney general opinion.

Background and statutory framework

Student discipline in Texas is largely a matter of local control. A Texas court of appeals has described school districts as having "not only the obligation but also a right or privilege to control and discipline their students." Friona Indep. Sch. Dist. v. King, 15 S.W.3d 653, 659 (Tex. App.-Amarillo 2000, no pet.). The governing statutes place that authority with the board of trustees: the board oversees the management of the district, Tex. Educ. Code Ann. § 11.051(a) (Vernon 1996), must adopt a student code of conduct, id. § 37.001(a) (Vernon Supp. 2002), and "may adopt rules for the safety and welfare of students, employees, and property," id. § 37.102(a) (Vernon 1996).

On corporal punishment, the opinion observed that federal courts, including the Fifth Circuit, have given local authorities wide leeway over whether to allow it. Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 875 (5th Cir. 2000). Two Texas statutes bear on how corporal punishment, if permitted, may be carried out: the Penal Code provides a defense for the use of force by someone entrusted with the care or supervision of a person for a special purpose who reasonably believes the force is necessary to maintain discipline, Tex. Pen. Code Ann. § 9.62 (Vernon 1994), and the Education Code grants professional employees immunity for judgment-based acts except where excessive force or negligence causes bodily injury, Tex. Educ. Code Ann. § 22.051(a) (Vernon 1996). Whether force is "reasonable" or "excessive" is fact-dependent, Spacek v. Charles, 928 S.W.2d 88, 93 (Tex. App.-Houston [14th Dist.] 1996, writ dism'd w.o.j.), which is why the opinion said such questions fall outside the opinion process. Because Arlington prohibited corporal punishment, these points were noted but not decided.

On physical restraint of special education students, the opinion relied on Education Code section 37.0021(d), which directs the Commissioner of Education to "adopt procedures for the use of restraint and time-out" for a student receiving special education services. Tex. Educ. Code Ann. § 37.0021(d) (Vernon Supp. 2002). The Commissioner had proposed a rule, to be codified at 19 Texas Administrative Code section 89.1053, see 26 Tex. Reg. 10474 (2001), limiting restraint to the reasonable force necessary to address an emergency, requiring it to be discontinued when the emergency ends, and requiring it to protect the student's health and safety. The opinion concluded that a district's restraint policy, as applied to special education students, had to be read alongside that rule and the federal Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1462 (1994 & Supp.).

Citations

Statutory provisions:

• Tex. Educ. Code Ann. § 37.102(a) (Vernon 1996)
• Tex. Educ. Code Ann. § 11.051(a) (Vernon 1996)
• Tex. Educ. Code Ann. § 37.001(a) (Vernon Supp. 2002)
• Tex. Educ. Code Ann. § 22.051(a) (Vernon 1996)
• Tex. Educ. Code Ann. § 37.0021(d) (Vernon Supp. 2002)
• Tex. Pen. Code Ann. § 9.62 (Vernon 1994)
• Tex. Pen. Code Ann. § 28.03(b)(4) (Vernon Supp. 2002)
• 19 Tex. Admin. Code § 89.1053 (proposed), 26 Tex. Reg. 10474 (2001)
• 20 U.S.C. §§ 1400-1462 (1994 & Supp.)

Cases:

• Friona Indep. Sch. Dist. v. King, 15 S.W.3d 653 (Tex. App.-Amarillo 2000, no pet.)
• Moore v. Willis Indep. Sch. Dist., 233 F.3d 871 (5th Cir. 2000)
• Spacek v. Charles, 928 S.W.2d 88 (Tex. App.-Houston [14th Dist.] 1996, writ dism'd w.o.j.)

Prior Attorney General opinions:

• Tex. Att'y Gen. LO-94-087

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0491
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0491.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor errors may remain, and two short mid-opinion passages marked [. . .] were not recoverable from the source extraction; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

April 15, 2002

The Honorable Kenneth Armbrister
Chair, Committee on Criminal Justice
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. JC-0491

Re: Validity of a school district policy regarding corporal punishment and physical restraint of students (RQ-0459-JC)

Dear Senator Armbrister:

You have asked the opinion of this office regarding the validity of a particular school district's policy on corporal punishment and physical restraint.[1] While, as explained below, there may be circumstances with regard to students receiving special education services in which this policy may be subject to some restriction, as a general matter the policy statement in question appears to us to be within the school district's authority to adopt necessary rules "for the safety and welfare of students, employees, and property." TEX. EDUC. CODE ANN. § 37.102(a) (Vernon 1996).

The particular policy about which you are concerned is that of the Arlington Independent School District. The two areas that are of interest are the policy statements on corporal punishment and physical restraint:

CORPORAL PUNISHMENT

The Board prohibits the use of corporal punishment in the District. Students shall not be spanked, paddled, or otherwise physically disciplined for violations of the Student Code of Conduct.

PHYSICAL RESTRAINT

Any District employee may, within the scope of the employee's duties, use and apply physical restraint to a student if the employee reasonably believes restraint is necessary in order to:

1. Protect a person, including the person using physical restraint, from physical injury.
2. Obtain possession of a weapon or other dangerous object.
3. Protect property from serious damage.
4. Remove a student refusing a lawful command of a school employee from a specific location, including a classroom or other school property, in order to restore order or to impose disciplinary measures.
5. Restrain an irrational student.

See RQ-0459 Attachments, supra note 1 (Arlington ISD Disciplinary Policy). As we understand it, the school district requests an opinion "regarding the legality with respect to state law" of this policy. See id. (Frank Hill Letter of May 1, 2001).

Matters of student discipline under Texas law are, generally speaking, within the authority of local school boards. See Friona Indep. Sch. Dist. v. King, 15 S.W.3d 653, 659 (Tex. App.-Amarillo 2000, no pet.) ("[S]chool districts not only have the obligation but also a right or privilege to control and discipline their students. Both are part and parcel of operating schools." (citation omitted)). "An independent school district is governed by a board of trustees who, as a body corporate, shall oversee the management of the district." TEX. EDUC. CODE ANN. § 11.051(a) (Vernon 1996). Each school district is required by statute to "adopt a student code of conduct for the district." Id. § 37.001(a) (Vernon Supp. 2002). Further, boards "may adopt rules for the safety and welfare of students, employees, and property." Id. § 37.102(a) (Vernon 1996).

As it appears from correspondence attached to your request letter that the Arlington school district may be considering an amendment of its policy to permit corporal punishment, we note that federal courts, and in particular the United States Court of Appeals for the Fifth Circuit, have given wide leeway to local authorities with respect to the policy decision on whether or not to permit the imposition of corporal punishment as a matter of student discipline. See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 875 (5th Cir. 2000). There are, it should be noted, relevant Texas statutory provisions that may limit the actual application of corporal punishment. The Penal Code, for example, provides a defense for the exercise of force against a person "if the actor is entrusted with the care, supervision, or administration for a special purpose[,] and . . . the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group." TEX. PEN. CODE ANN. § 9.62 (Vernon 1994). Similarly, Education Code section 22.051 grants immunity from liability to professional employees of school districts for acts within the scope of their duties that involve the exercise of judgment, "except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students." TEX. EDUC. CODE ANN. § 22.051(a) (Vernon 1996). What constitutes "reasonable" or "excessive" force in any given situation is dependent on the facts and circumstances. See, e.g., Spacek v. Charles, 928 S.W.2d 88, 93 (Tex. App.-Houston [14th Dist.] 1996, writ dism'd w.o.j.). Accordingly, such questions would be beyond the scope of an attorney general opinion. See Tex. Atty. Gen. LO-94-087, at 2 ("Determining whether the requisite intent, knowledge, or purpose are present would . . . require taking of evidence and finding of fact that cannot be performed in the opinion process."). Given that the Arlington policy at present forbids corporal punishment, such matters are not now at issue.

With respect to the Arlington policy on physical restraint, while as a general matter it is within the district's authority under section 37.102 of the Education Code to adopt necessary safety rules, we note that with respect to special education students, the policy must be implemented in light of certain other provisions of state and federal law.

First, we note that, pursuant to section 37.0021(d) of the Education Code, the Commissioner of Education is required to "adopt procedures for the use of restraint and time-out by a school district employee . . . in the case of a student receiving special education services." TEX. EDUC. CODE ANN. § 37.0021(d) (Vernon Supp. 2002). Based on that statutory authorization, the Commissioner, on December 21, 2001, proposed an addition to the Texas Administrative Code, which is to be codified at title 19 of the Texas Administrative Code, section 89.1053. See 26 Tex. Reg. 10474 (2002). That

[. . .]

a felony only if the pecuniary loss involved is equal to or greater than $1,500. See TEX. PEN. CODE ANN. § 28.03(b)(4) (Vernon Supp. 2002). In the event of the proposed rule's adoption, the Arlington school district should consider its restraint policy in light of the rule.

Physical restraint must, under the proposed rule, "be limited to the use of such reasonable force as is necessary to address the emergency." 26 Tex. Reg. 10474 (2001) (to be codified at 19 TEX. ADMIN. CODE § 89.1053(c)(1)). When the emergency ceases to exist, it must be discontinued. Id. (to be codified 19 TEX. ADMIN. CODE § 89.1053(c)(2)). It must be implemented "in such a way as to protect the health and safety of the student," and must not "deprive the student of basic human necessities." Id. (to be codified at 19 TEX. ADMIN. CODE § 89.1053(c)(3), (4)).

The imposition

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SUMMARY

The policy statement of the Arlington Independent School District regarding corporal punishment and physical restraint is generally within the district's authority to manage the district and to adopt rules for the safety and welfare of students, employees, and property. Disciplinary matters with respect to students receiving special education services in particular instances may implicate rules promulgated by the Commissioner of Education under section 37.0021 of the Texas Education Code, or the Federal Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1462 (1994 & Supp. I 1995 - Supp. V 1999).

                              JOHN CORNYN
                              Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

[1] Letter from Honorable Kenneth Armbrister, Chair, Committee on Criminal Justice, Texas State Senate, to Susan Denmon Gusky, Chair, Opinion Committee, Office of Attorney General (Oct. 23, 2001) [hereinafter RQ-0459]; Letter and attachments accompanying RQ-0459, from Frank Hill, Hill Gilstrap, Attorneys at Law, to Honorable Chris Harris, Texas State Senate (May 1, 2001) [hereinafter RQ-0459 Attachments] (all documents on file with Opinion Committee).