SPOTLIGHT

If you cuss you run the risk of getting your mouth washed-out out with soap. That’s a known danger of vulgarity and if you have ever been on the receiving end of a soap bar, you know the efficacy of the punishment: soap tastes awful. Yet, is the punishment bad enough to be outside the scope of a teacher’s disciplinary rights? The answer may be “yes.”

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In March, Lori Thomas was teaching her third grade class in Rochester NY when she heard a student declare some unrepeatable things about a female student. Knowing the price of cussing, she brought that student to the nurse’s office, put soap on his lip and washed it off (how enthusiastically we do not know). It, no doubt, tasted awful and the act was so unusual (unusual in that someone actually put the quip into action) that the district suspended Ms. Thomas with pay until the matter could be further investigated.

The suspension is surely a reaction to the fear of litigation and, as troubling as it is, that may be wise counsel. A parent could bring a claim of battery or negligence against the teacher and district. The defense is that the action was justifiable and within the scope of the teacher’s authority. The defense is the focus of most conversation on the matter.

Yet, if we can deduce anything from the district’s actions, it is that its legal counsel was uncertain that the action was within the scope of the teacher’s authority. Whatever in locos parentis (which means legal authority in the place of the parent) authority Ms. Thomas had, they were not sure it extended to the teacher physically washing the student’s mouth out with soap, even if the district’s parents support the idea (which they apparently do). The district had to go on the defensive.

The district sought to prevent an expansion of liability (from the teacher to the district) and to delay the matter until it could arrive at a legal answer. As troubling as the suspension may seem, this may have been the right legal thing to do.

The district is probably investigating where soaping lies on the spectrum of acceptable in locos parentis actions. On one end, a teacher may punish a student by deducting 20 minutes from their recreation time, which is something like a “penalty box” sanction. On the other end, a teacher may not strike or harmfully contact the student (except maybe in a dodgeball game). Soaping is probably closer to harmful contact than serving penalty box time and that is why the district instigated the suspension.

But in defense of soaping, it has years of proven effectiveness, most parents giggle reminiscently and approve of it, it lacks the malicious intent of a strike and soap only tastes bad, it is not harmful.

So how does a district preserve such a disciplinary action in a litigious society? Remove the element of physical contact. Leave the soap in the penalty box, send the student to the penalty-box and have him self-administer it.

Next week we will consider how to preserve dodgeball.

David A DeSchryver
Issue 4.26
6/10/2004
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