Students' Freedom from Excessive Force by Public School Officials: A Fourth or Fourteenth Amendment Right?

In the more than thirty years since Ingraham v. Wright was decided, the Supreme Court has still not definitively resolved the question of whether the Fourth Amendment's Seizure Clause or the Fourteenth Amendment's Substantive Due Process applies to public school officials' use of excessive force to punish their students. Since the 1980s, a clear majority of the circuits has applied substantive due process to such claims under the Johnson v. Glick-Hall v. Tawney “shocks-the-conscience” model.This article makes a counter-majoritarian argument, contending the Fourth Amendment, rather than the Fourteenth, should determine such disputes. A number of strong arguments, based on guidance from the United States Supreme Court, support this view. These include: (1) The Court's declaration in Graham v. Connor and County of Sacramento v. Lewis that Fourth Amendment privacy interests encompass security from excessive force; (2) its direction in Graham v. Connor to find the locus of a constitutional right in a specific provision of the Bill of Rights before resorting to the amorphous substantive due process clause as a source of protection; (3) its message in cases like Regents of the University of Michigan v. Ewin and Collins v. City of Harker Heights, expressing reluctance to expand the concept of substantive due process because guideposts are scarce and open-ended; (4) nearly all applications of force upon public school students, even misguided uses of corporal punishment, fit neatly into custodial and tutelary functions described in the Court's New Jersey v. T.L.O. and Vernonia School District 47J v. Acton decisions; this makes them readily susceptible to the Fourth Amendment's “reasonable at the inception” and “in scope” tests, typically applied under that constitutional provision; (5) the trend in the circuits in the criminal procedure context is to apply the Fourth Amendment to excessive force claims against 36 executive branch officials, until judicial intervention occurs at the arraignment or indictment, at which point substantive due process is applied and, because all uses of force by public school officials emanate from executive branch powers, the Fourth Amendment should apply rather than the Fourteenth. Instrumental and justice-related concerns are also addressed in the article. These factors tilt heavily in favor of the Fourth Amendment over the Fourteenth as the appropriate analytic tool for examining students' excessive force claims against public schools and their officials.