미국의 학생체벌에 관한 입법과 판례 동향

다국어 초록 (Multilingual Abstract)

We all know how corporal punishment in schools is very serious. In Recent Years, Our society have many cases which school teachers paddle on students with unusual and cruel punishments and result in deaths or serious physical and psychological injuries. The government and municipal offices of education efforts to ban the school corporal punishment, but I question this efforts is insufficient and ineffective ways. So I review the trends of federal and state law and jurisprudence in USA for helping solve this problems.
There are so different viewpoints of state law and school regulations on corporal punishment in USA. Some is allowed to corporal punishment, others ban it. In 1977, The Supreme Court held that corporal punishment is not violate 8th or 14th amendments in Ingraham v. Wright. After that, many researcher studies whether corporal punishment is effective method to control or keep the school order and correct the students' misbehavior, especially whether it is constitutional or not. Many scholars and civil societies also want to ban the school corporal punishment because it violates substantive due process clause and cruel and unusual punishment clause. Some research asserts that banning corporal punishment is constitutional if you consider police power and parens patrie power theory.
The Federal Circuit court also helds that Ingraham v. Wright decision is unreasonable. They assert that corporal punishment violate due process clause if student is remedied by state law. Unusual and unreasonable punishment gives us shock the conscience and conscious with Glick test, 4 prong test or 2 prong test.
I think, we should review whether corporal punishment is legal or illegal with the Constitution's dimension, not laws or municipal regulations'. It will be more helpful for solving the corporal punishment problem because we consider what our traditional viewpoints are, what our history is, and what our standards are. Furthermore, it is very important that the government support the finance and project the teacher's training program for developing teacher's professional skills to correct or control the unacceptable behavior in school and efforts to make the safety and friendly school circumstance.

참고문헌 (Reference)

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5 David R. Hague, "The Ninth Amendment: A constitutional Challenge to Corporal Punishment in Public School" 55 : 429-461, 2007

6 T. John Nolen, "Smacking Lesson: How the council of Europe's ban on corporal punishment could serve as a model for the united states" 16 (16): 521-530, 2010

7 Martha M. McCarthy, "Public School Law - Teacher's and Student's Right" Allyn and Bacon 1998

8 Irene Merker Rosenberg, "Ingraham v. Wright : The Supreme Court's Whipping Boy" 78 : 75-110, 1978

9 Betsy Levin, "Educating youth for citizenship: The Conflict between authority and individual rights in the public school" 95 (95): 1676-1678, 1986

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11 Society of Adolescent Health, "Corporal Punishment in Schools, In Children and the law Ⅱ" Routledge 2002

12 C. C. Swisher, "Constitutional Abuse of public school Students: An Argument for overruling Ingraham v. Wright" 8 (8): 55-56, 2008

13 Deana A. Pollard, "Banning corporal punishment: A constitutional Analysis" 52 (52): 456-466, 2002