UNITED STATES LAW by SPANKOZ AUSTRALIA ..................

THESE ARE EXTRACTS FROM THE US SUPREME COURT RE SPANKING , WE HAVE NOT HAD THE TIME TO PROPERLY ORGANISE THESE EXTRACTS . OTHER REPORTS ARE AT THE END OF THE PAGE .

MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE STEVENS join, dissenting.

Today the Court holds that corporal punishment in public schools, no matter how severe, can never be the subject of the protections afforded by the Eighth Amendment. It also holds that students in the public school systems are not constitutionally entitled to a hearing of any sort before beatings can be inflicted on them. Because I believe that these holdings are inconsistent with the prior decisions of this Court and are contrary to a reasoned analysis of the constitutional provisions involved, I respectfully dissent.

The Eighth Amendment places a flat prohibition against the infliction of "cruel and unusual punishments." This reflects a societal judgment that there are some punishments that are so barbaric and inhumane that we will not permit them to be imposed on anyone, no matter how opprobrious the offense. See Robinson v. California, 370 U. S. 660, 676 ( 1962) (Douglas, J., concurring). If there are some punishments that are so barbaric that they may not be imposed for the commission of crimes, designated by our social system as the most thoroughly reprehensible acts an individual can commit, then, a fortiori ,similar punishments may not be imposed on persons for less culpable acts, such as breaches of school discipline. Thus, if it is constitutionally impermissible to cut off someone's ear for the commission of murder, it must be unconstitutional to cut off a child's ear for being late to class. 1 Although there were no ears cut off in this case, the record reveals beatings so severe that if they were inflicted on a hardened criminal for the commission of a serious crime, they might not pass constitutional muster.

Nevertheless, the majority holds that the Eighth Amendment "was designed to protect [only] those convicted of crimes," ante, at 664, relying on a vague and inconclusive recitation of the history of the Amendment. Yet the constitutional prohibition is against cruel and unusual punishments; nowhere is that prohibition limited or modified by the language of the Constitution. Certainly, the fact that the Framers did not choose to insert the word "criminal" into the language of the Eighth Amendment is strong evidence that the Amendment was designed to prohibit all inhumane or barbaric punishments, no matter what the nature of the offense for which the punishment is imposed.

No one can deny that spanking of schoolchildren is "punishment" under any reasonable reading of the word, for the similarities between spanking in public schools and other forms of punishment are too obvious to ignore. Like other forms of punishment, spanking of schoolchildren involves an institutionalized response to the violation of some official rule or regulation proscribing certain conduct and is imposed for the purpose of rehabilitating the offender, deterring the offender and others like him from committing the violation in the future, and inflicting some measure of social retribution for the harm that has been done.

We are fortunate that in our society punishments that are severe enough to raise a doubt as to their constitutional validity are ordinarily not imposed without first affording the accused the full panoply of procedural safeguards provided by the criminal process. 2 The effect has been that "every decision of this Court considering whether a punishment is 'cruel and unusual' within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment." Ante, at 666. The Court would have us believe from this fact that there is a recognized distinction between criminal and noncriminal punishment for purposes of the Eighth Amendment. This is plainly wrong. "[E]ven a clear legislative classification of a statute as 'non-penal' would not alter the fundamental nature of a plainly penal statute." Trop v. Dulles, 356 U. S. 86, 95(1958) (plurality opinion). The relevant inquiry is not whether the offense for which a punishment is inflicted has been labeled as criminal, but whether the purpose of the deprivation is among those ordinarily associated with punishment, such as retribution, rehabilitation, or deterrence. 3 Id., at 96. Cf. Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963).

If this purposive approach were followed in the present case, it would be clear that spanking in the Florida public schools is punishment within the meaning of the Eighth Amendment. The District Court found that "[c]orporal punishment is one of a variety of measures employed in the school system for the correction of pupil behavior and the preservation of order." App. 146. Behavior correction and preservation of order are purposes ordinarily associated with punishment.

Without even mentioning the purposive analysis applied in the prior decisions of this Court, the majority adopts a rule that turns on the label given to the offense for which the punishment is inflicted. Thus, the record in this case reveals that one student at Drew Junior High School received 50 licks with a paddle for allegedly making an obscene telephone call. Brief for Petitioners 13. The majority holds that the Eighth Amendment does not prohibit such punishment since it was only inflicted for a breach of school discipline. However, that same conduct is punishable as a misdemeanor under Florida law, Fla. Stat. Ann. § 365.16 (Supp. 1977), and there can be little doubt that if that same "punishment" had been inflicted by an officer of the state courts for violation of §365.16, it would have had to satisfy the requirements of the Eighth Amendment.

In fact, as the Court recognizes, the Eighth Amendment has never been confined to criminal punishments. 4 Nevertheless, the majority adheres to its view that any protections afforded by the Eighth Amendment must have something to do with criminals, and it would therefore confine any exceptions to its general rule that only criminal punishments are covered by the Eighth Amendment to abuses inflicted on prisoners. Thus, if a prisoner is beaten mercilessly for a breach of discipline, he is entitled to the protection of the Eighth Amendment, while a schoolchild who commits the same breach of discipline and is similarly beaten is simply not covered.

The purported explanation of this anomaly is the assertion that schoolchildren have no need for the Eighth Amendment. We are told that schools are open institutions, subject to constant public scrutiny; that schoolchildren have adequate remedies understate law; 5 and that prisoners suffer the social stigma of being labeled as criminals. How any of these policy considerations got into the Constitution is difficult to discern, for the Court has never considered any of these factors in determining the scope of the Eighth Amendment. 6

The essence of the majority's argument is that schoolchildren do not need Eighth Amendment protection because corporal punishment is less subject to abuse in the public schools than it is in the prison system.7 However, it cannot be reasonably suggested that just because cruel and unusual punishments may occur less frequently under public scrutiny, they will not occur at all. The mere fact that a public flogging or a public execution would be available for all to see would not render the punishment constitutional if it were otherwise impermissible. Similarly, the majority would not suggest that a prisoner who is placed in a minimum-security prison and permitted to go home to his family on the weekends should be any less entitled to Eighth Amendment protections than his counterpart in a maximum-security prison. In short, if a punishment is so barbaric and inhumane that it goes beyond the tolerance of a civilized society, its openness to public scrutiny should have nothing to do with its constitutional validity.

Nor is it an adequate answer that schoolchildren may have other state and constitutional remedies available to them. Even assuming that the remedies available to public school students are adequate under Florida law, 8 the availability of state remedies has never been determinative of the coverage or of the protections afforded by the Eighth Amendment. The reason is obvious. The fact that a person may have a state-law cause of action against a public official who tortures him with a thumbscrew for the commission of an antisocial act has nothing to do with the fact that such official conduct is cruel and unusual punishment prohibited by the Eighth Amendment. Indeed, the majority's view was implicitly rejected this Term in Estelle v. Gamble, 429 U. S. 97 (1976), when the Court held that failure to provide for the medical needs of prisoners could constitute cruel and unusual punishment even though a medical malpractice remedy in tort was available to prisoners under state law. Id., at 107 n. 15.

By holding that the Eighth Amendment protects only criminals, the majority adopts the view that one is entitled to the protections afforded by the Eighth Amendment only if he is punished for acts that are sufficiently opprobrious for society to make them "criminal." This is a curious holding in view of the fact that the more culpable the offender the more likely it is that the punishment will not be disproportionate to the offense, and consequently, the less likely it is that the punishment will be cruel and unusual. 9 Conversely, a public school student who is spanked for a mere breach of discipline may sometimes have a strong argument that the punishment does not fit the offense, depending upon the severity of the beating, and therefore that it is cruel and unusual. Yet the majority would afford the student no protection no matter how inhumane and barbaric the punishment inflicted on him might be.

The issue presented in this phase of the case is limited to whether corporal punishment in public schools can ever be prohibited by the Eighth Amendment. I am therefore not suggesting that spanking in the public schools is in every instance prohibited by the Eighth Amendment. My own view is that it is not. I only take issue with the extreme view of the majority that corporal punishment in public schools, no matter how barbaric, inhumane, or severe, is never limited by the Eighth Amendment. Where corporal punishment becomes so severe as to be unacceptable in a civilized society, I can see no reason that it should become any more acceptable just because it is inflicted on children in the public schools.

The majority concedes that corporal punishment in the public schools implicates an interest protected by the Due Process Clause the liberty interest of the student to be free from "bodily restraint and punishment" involving "appreciable physical pain" inflicted by persons acting under color of state law. Ante, at 674. The question remaining, as the majority recognizes, is what process is due.

The reason that the Constitution requires a State to provide "due process of law" when it punishes an individual for misconduct is to protect the individual from erroneous or mistaken punishment that the State would not have inflicted had it found the facts in a more reliable way. See, e.g., Mathews v. Eldridge, 424 U. S. 319, 335, 344 (1976). In Goss v. Lopez, 419U. S. 565 (1975), the Court applied this principle to the school disciplinary process, holding that a student must be given an informal opportunity to be heard before he is finally suspended from public school.

To guard against this risk of punishing an innocent child, the Due Process Clause requires, not an "elaborate hearing" before a neutral party, but simply "an informal give-and-take between student and disciplinarian" which gives the student "an opportunity to explain his version of the facts." Id., at 580, 582, 584.

The Court now holds that these "rudimentary precautions against unfair or mistaken findings of misconduct," id., at 581, are not required if the student is punished with "appreciable physical pain" rather than with a suspension, even though both punishments deprive the student of a constitutionally protected interest. Although the respondent school authorities provide absolutely no process to the student before the punishment is finally inflicted, the majority concludes that the student is nonetheless given due process because he can later sue the teacher and recover damages if the punishment was "excessive."

This tort action is utterly inadequate to protect against erroneous infliction of punishment for two reasons.10 First, under Florida law, a student punished for an act he did not commit cannot recover damages from a teacher "proceeding in utmost good faith . . . on the reports and advice of others," supra, at 692; the student has no remedy at all for punishment imposed on the basis of mistaken facts, at least as long as the punishment was reasonable from the point of view of the disciplinarian, uninformed by any prior hearing. 11 The "traditional common-law remedies" on which the majority relies, ante, at 672, thus do nothing to protect the student from the danger that concerned the Court in Goss - the risk of reasonable, good-faith mistake in the school disciplinary process.

Second, and more important, even if the student could sue for good-faith error in the infliction of punishment, the lawsuit occurs after the punishment has been finally imposed., The infliction of physical pain is final and irreparable; it cannot be undone in a subsequent proceeding. There is every reason to require, as the Court did in Goss, a few minutes of "informal give-and-take between student and disciplinarian" as a "meaningful hedge" against the erroneous infliction of irreparable injury. 419 U.S., at 583-584.12

The majority's conclusion that a damages remedy for excessive corporal punishment affords adequate process rests on the novel theory that the State may punish an individual without giving him any opportunity to present his side of the story, as long as he can later recover damages from a state official if he is innocent. The logic of this theory would permit a State that punished speeding with a one-day jail sentence to make a driver serve his sentence first without a trial and then sue to recover damages for wrongful imprisonment. l3 Similarly, the State could finally take away a prisoner's good-time credits for alleged disciplinary infractions and require him to bring a damages suit after he was eventually released. There is no authority for this theory, nor does the majority purport to find any, l4 in the procedural due process decisions of this Court. Those cases have "consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests . . . [and that] a person's liberty is equally protected ...." Wolf v. McDonnell, 418 U. S. 539, 557-558(1974). (Emphasis added.)

The majority attempts to support its novel theory by drawing an analogy to warrantless arrests on probable cause, which the Court has held reasonable under the Fourth Amendment. United States v. Watson, 423 U. S. 411 (1976). This analogy fails for two reasons. First, the particular requirements of the Fourth Amendment, rooted in the "ancient common-law rule[s]" regulating police practices, id., at 418, must be understood in the context of the criminal justice system for which that Amendment was explicitly tailored. Thus in Gerstein v. Pugh, 420U. S. 103 (1975), the Court, speaking through MR JUSTICE POWELL, rejected the argument that procedural protections required in Goss and other due process cases should be afforded to a criminal suspect arrested without a warrant.

While a case dealing with warrantless arrests is perhaps not altogether "inapposite and irrelevant in the wholly different context" of the school disciplinary process, such a case is far weaker authority than procedural due process cases such as Goss v. Lopez, 419 U. S. 565 (1975), that deal with deprivations of liberty outside the criminal context.

Second, contrary to the majority's suggestion, ante, at 680 n.48, the reason that the Court has upheld warrantless arrests on probable cause is not because the police officer's assessment of the facts "may be subjected to subsequent judicial scrutiny in a civil action against the law enforcement officer or in a suppression hearing . . ." The reason that the Court has upheld arrests without warrants is that they are the "first stage of an elaborate system" of procedural protections, Gerstein v. Pugh, supra, at 125 n. 27, and that the State is not free to continue the deprivation beyond this first stage without procedures. The Constitution requires the State to provide "a fair and reliable determination of probable cause "by a judicial officer prior to the imposition of "any significant pretrial restraint of liberty" other than "a brief period of detention to take the administrative steps incident to [a warrantless] arrest." Id., at 114, 125. (Footnote omitted; emphasis added.) This "practical compromise" is made necessary because "requiring a magistrate's review of the factual justification prior to any arrest . . . would constitute an intolerable handicap for legitimate law enforcement," id., at 113; but it is the probable-cause determination prior to any significant period of pretrial incarceration, rather than a damages action or suppression hearing, that affords the suspect due process.

There is, in short, no basis in logic or authority for the majority's suggestion that an action to recover damages for excessive corporal punishment "afford[s] substantially greater protection to the child than the informal conference mandated by Goss." 15 The majority purports to follow the settled principle that what process is due depends on " 'the risk of an erroneous deprivation of [the protected] interest . .. and the probable value, if any, of additional or substitute procedural safeguards' "; 16 it recognizes, as did Goss, the risk of error in the school disciplinary process l7 and concedes that "the child has a strong interest in procedural safeguards that minimize the risk of wrongful punishment . . .," ante, at 676; but it somehow concludes that this risk is adequately reduced by a damages remedy that never has been recognized by a Florida court, that leaves unprotected the innocent student punished by mistake, and that allows the State to punish first and hear the student's version of events later. I cannot agree.

The majority emphasizes, as did the dissenters in Goss that even the "rudimentary precautions" required by that decision would impose some burden on the school disciplinary process. But those costs are no greater if the student is paddled rather than suspended; the risk of error in the punishment is no smaller; and the fear of "a significant intrusion" into the disciplinary process, ante, at 682 (cf. Goss supra, at 585(POWELL, J., dissenting)), is just as exaggerated. The disciplinarian need only take a few minutes to give the student "notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." 419 U. S., at 581. In this context the Constitution requires, "if anything, less than a fair-minded school principal would impose upon himself" in order to avoid injustice.18 Id., at 583.

l There is little reason to fear that if the Eighth Amendment is held to apply at all to corporal punishment of schoolchildren, all paddlings, however moderate, would be prohibited. Jackson v. Bishop, 404 F. 2d 571 (CAB 1968), held that any paddling or flogging of prisoners, convicted of crime and serving prison terms, violated the cruel and unusual punishment ban of the Eighth Amendment. But aside from the fact that Bishop has never been embraced by this Court, the theory of that case was not that bodily punishments are intrinsically barbaric or excessively severe but that paddling of prisoners is "degrading to the punisher and to the punished alike." Id., at 580. That approach may be acceptable in the criminal justice system, but it has little if any relevance to corporal punishment in the schools, for it can hardly be said that the use of moderate paddlings in the discipline of children is inconsistent with the country's evolving standards of decency.

On the other hand, when punishment involves a cruel, severe beating or chopping off an ear, something more than merely the dignity of the individual is involved. Whenever a given criminal punishment is "cruel and unusual" because it is inhumane or barbaric, I can think of no reason why it would be any less inhumane or barbaric when inflicted on a schoolchild, as punishment for classroom misconduct.

The issue in this case is whether spankings indicted on public school children for breaking school rules is "punishment," not whether such punishment is "cruel and unusual." If the Eighth Amendment does not bar moderate spanking in public schools, it is because moderate spanking is not "cruel and unusual," not because it is not "punishment" as the majority suggests.

2 By no means is it suggested that just because spanking of schoolchildren is "punishment" within the meaning of the Cruel and Unusual Punishments Clause, the school disciplinary process is in any way ''criminal'' and therefore subject to the full panoply of criminal procedural guarantees. See Part II, infra. Ordinarily, the conduct for which schoolchildren are punished is not sufficiently opprobrious to be called "criminal" in our society, and even violations of school disciplinary rules that might also constitute a crime, see infra, at 688, are not subject to the criminal process. See Baxter v. Palmigiano, 425 U. S. 308 (1976), where the Court held that persons who violate prison disciplinary rules are not entitled to the full panoply of criminal procedural safeguards, even if the rule violation might also constitute a crime.

3 The majority cites Trop as one of the cases that "dealt with a criminal punishment" but neglects to follow the analysis mandated by that decision. In Trop the petitioner was convicted of desertion by a military court-martial and sentenced to three years at hard labor, forfeiture of all pay and allowances, and a dishonorable discharge. After he was punished for the offense he committed, petitioner's application for a passport was turned down. Petitioner was told that he had been deprived of the "rights of citizenship" under §401(g) of the Nationality Act of 1940 because he had been dishonorably discharged from the Armed Forces. The plurality took the view that denationalization in this context was cruel and unusual punishment prohibited by the Eighth Amendment.

The majority would have us believe that the determinative factor in Trop was that the petitioner had been convicted of desertion; yet there is no suggestion in Trop that the disposition of the military court-martial had anything to do with the decision in that case. Instead, while recognizing that the Eighth Amendment extends only to punishments that are penal in nature, the plurality adopted a purposive approach for determining when punishment is penal.

"In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment -- that is, to reprimand the wrongdoer, to deter others, etc.-- it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose." 356 U. S., at 96 (footnotes omitted).

Although the quoted passage is taken from the plurality opinion of Mr. Chief Justice Warren, joined by three other Justices, MR. JUSTICE BRENNAN, in a concurring opinion, adopted a similar approach in concluding that § 401 (g) was beyond the power of Congress to enact.

4 Ante, at 669. In Estelle v. Gamble, 429 U. S. 97 (1976), a case decided this Term, the Court held that "deliberate indifference to the medical needs of prisoners" by prison officials constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Such deliberate indifference to a prisoner's medical needs clearly is not punishment inflicted for the commission of a crime; it is merely misconduct by a prison official. Similarly, the Eighth Circuit has held that whipping a prisoner with a strap in order to maintain discipline is prohibited by the Eighth Amendment. Jackson v. Bishop, 404 F. 2d571 (1968) (Blackmun, J.). See also Knecht v. Gillman, 488 F. 2d1136, 1139-1140 (CA8 1973) (injection of vomit-inducing drugs as part of aversion therapy held to be cruel and unusual); Vann v. Scott, 467 F. 2d 1235, 1240-1241 (CA7 1972) (Stevens, J.) (Eighth Amendment protects runaway children against cruel and inhumane treatment, regardless of whether such treatment is labeled "rehabilitation" or "punishment").

5 By finding that bodily punishment invades a constitutionally protected liberty interest within the meaning of the Due Process Clause, the majority suggests that the Clause might also afford a remedy for excessive spanking independently of the Eighth Amendment. If this were the case, the Court's present thesis would have little practical significance. If rather than holding that the Due Process Clause affords a remedy by way of the express commands of the Eighth Amendment, the majority would recognize a cause of action under 42 U. S. C. § 1983 for a deprivation of "liberty" flowing from an excessive paddling, the Court's opinion is merely a lengthy word of advice with respect to the drafting of civil complaints.

Petitioners in this case did raise the substantive due process issue in their petition for certiorari, ante, at 659 n. 12, but consideration of that question was foreclosed by our limited grant of certiorari. If it is probable that schoolchildren would be entitled to protection under some theory of substantive due process, the Court should not now affirm the judgment below, but should amend the grant of certiorari and set this case for reargument.

6 In support of its policy considerations, the only cases from this Court cited by the majority are Morrisey v. Brewer, 408 U.S. 471 (1972), and Meachum v. Fano, 427 U. S. 215 (1976), both cases involving prisoners' rights to procedural due process.

7 There is no evidence in the record that corporal punishment has been abused in the prison systems more often than in the public schools. Indeed, corporal punishment is seldom authorized in state prisons. See Jackson v. Bishop, supra, at 580, where MR. JUSTICE (then Judge) BLACKMUN noted: "[O]nly two states still permit the use of the strap [in prisons]. Thus almost uniformly has it been abolished." By relying on its own view of the nature of these two public institutions, without any evidence being heard on the question below, the majority today predicates a constitutional principle on mere armchair speculation.

8 There is some doubt that the state-law remedies available to public school children are adequate. See n. 11, infra.

9 For a penalty to be consistent with the Eighth Amendment "the punishment must not be grossly out of proportion to the severity of the crime." Gregg v. Georgia, 428 U. S. 153, 173(1976) (joint opinion of STEWART, POWELL, and STEVENS, JJ.).

10 Here, as in Goss v. Lopez, 419 U. S. 565, 580-581, n. 9(1975), the record suggests that there may be a substantial risk of error in the discipline administered by respondent school authorities. Respondents concede that some of the petitioners who were punished "denied misconduct" and that "in some cases the punishments may have been mistaken ...." Brief for Respondents 60-61. The Court of Appeals panel below noted numerous instances of students punished despite claims of innocence, 498 F. 2d 248, 256-258 (CA5 1974), and was "particularly disturbed by the testimony that whole classes of students were corporally punished for the misconduct of a few." Id., at 268 n. 36. To the extent that the majority focuses on the incidence of and remedies for unduly severe punishments, it fails to address petitioners' claim that procedural safeguards are required to reduce the risk of punishments that are simply mistaken.

11 The majority's assurances to the contrary, it is unclear tome whether and to what extent Florida law provides a damages action against school officials for excessive corporal punishment. Giving the majority the benefit of every doubt, I think it is fair to say that the most a student punished on the basis of mistaken allegations of misconduct can hope for in Florida is a recovery for unreasonable or bad-faith error. But I strongly suspect that even this remedy is not available.

Although the majority does not cite a single case decided under Florida law that recognizes a student's right to sue a school official to recover damages for excessive punishment, I am willing to assume that such a tort action does exist in Florida. I nevertheless have serious doubts about whether it would ever provide a recovery to a student simply because he was punished for an offense he did not commit. All the cases in other jurisdictions cited by the majority, ante, at 663 n. 28, involved allegations of punishment disproportionate to the misconduct with which the student was charged; none of the decisions even suggest that a student could recover by showing that the teacher incorrectly imposed punishment for something the student had not done. The majority appears to agree that the damages remedy is available only in cases of punishment unreasonable in light of the misconduct charged. It states: "In those cases where severe punishment is contemplated, the available civil and criminal sanctions for abuse . . . afford significant protection against unjustified corporal punishment." Ante, at 678.(Emphasis added.)

Even if the common-law remedy for excessive punishment extends to punishment that is "excessive" only in the sense that it is imposed on the basis of mistaken facts, the school authorities are still protected from personal liability by common-law immunity. (They are protected by statutory immunity for liability for enforcing disciplinary rules "[e]xcept in the case of excessive force or cruel and unusual punishment." Fla. Stat. Ann. § 232.275 (1976).) At a minimum, this immunity would protect school officials from damages liability for reasonable mistakes made in good faith." Although there have been differing emphases and formulations of the common-law immunity of public school officials in cases of student expulsion or suspension, state courts have generally recognized that such officers should be protected from tort liability under state law for all good faith, nonmalicious action taken to fulfill their official duties." Wood v. Strickland, 420 U. S 308, 318 (1975) (adopting this rule for § 1983 suits involving school discipline) (footnote omitted); see id., at 318 n. 9 (citing state cases). Florida has applied this rule to a police officer's determination of probable cause to arrest; the officer is not liable in damages for an arrest not based on probable cause if the officer reasonably believed that probable cause existed. Miami v. Albro, 120 So. 2d23, 26 (Flat Dist. Ct. App. 1960); cf. Middleton v. Fort WaltonBeach, 113 So. 2d 431 (Fla Dist. Ct. App. 1959) (police officer would be personally liable for intentional tort of making an arrest pursuant to warrant he knew to be void); Wilson v. O'Neal, 118 So. 2d 101 (Fla. Dist. Ct. App. 1960) (law enforcement officer not liable in damages for obtaining an arrest warrant on the basis of an incorrect identification). There is every reason to think that the Florida courts would apply a similar immunity standard in a hypothetical damages suit against a school disciplinarian.

A final limitation on the student's damages remedy under Florida law is that the student can recover only from the personal assets of the official; the school board's treasury is absolutely protected by sovereign immunity from damages for the torts of its agents. Buck v. McLean, 115 So. 2d 764 (Flat Dist.Ct. App. 1959). A teacher's limited resources may deter the jury from awarding, or prevent the student from collecting, the full amount of damages to which he is entitled. Cf. Bonner v.Coughlin, 517 F. 2d 1311, 1319 n. 23 (CA7 1975), modified en banc, 545 F. 2d 565 (1976), cert. pending, No. 76-6204 (state-law remedy affords due process where no sovereign or official immunity bars tort suit for negligence by prison guard).

12 Cf. G. M. Leasing Corp. v. United States, 429 U. S. 338,351-359 (1977). The Court there held that, in levying on a taxpayer's assets pursuant to a jeopardy assessment, revenue agents must obtain a warrant before searching the taxpayer's office but not before seizing his property in a manner that involves no invasion of privacy. G. M. Leasing thus reflects the principle that the case for advance procedural safeguards (such as a magistrate's determination of probable cause) is more compelling when the Government finally inflicts an injury that cannot be repaired in a subsequent judicial proceeding (invasion of privacy) than when it inflicts a temporary injury which can be undone (seizure of property). The infliction of bodily punishment, like the invasion of privacy, presents this most compelling case for advance procedural safeguards.

13 To the extent that the majority attempts to find "a relevant analogy in the criminal law" -- warrantless arrests on probable cause -- to its holding here, ante, at 679-680 (and see infra, at 697-699), it has chosen the wrong analogy. If the majority forthrightly applied its present due process analysis to the area of criminal prosecutions, the police officer not only could arrest a suspect without a warrant but also could convict the suspect without a trial and sentence him to a short jail term. The accused would get his due process in a tort suit for false imprisonment.

14 For the proposition that the need for a prior hearing is "significantly less compelling" where the State has preserved "common-law remedies," ante, at 679, 678, the majority cites only one case, Bonner v. Coughlin, supra, dismissing an allegation by a prisoner that prison guards acting under color of state law had deprived him of property without due process of law by negligently failing to close the door of his cell after a search, with the foreseeable consequence that his trial transcript was stolen. The panel held that the right to recover under state law for the negligence of state employees provided the prisoner with due process of law. The decision is distinguishable from the instant case on two grounds. First, recovery was not barred by sovereign or official immunity, and the state remedy ensured that the prisoner would be "made whole for any loss of property." 517 F. 2d, at 1319, and n.23. Cf. Regional Rail Reorganization Act Cases, 419 U. S. 102,156 (1974). The point here, of course, is that the student cannot be made whole for the infliction of wrongful punishment. Second, the State cannot hold a pre-deprivation hearing where it does not intend to inflict the deprivation; the best it can do to protect the individual from an unauthorized and inadvertent act is to provide a damages remedy. 517 F. 2d, at 1319 n. 25. Here the deprivation is intentional and a prior hearing altogether feasible.

17 Ante, at 676, quoting Goss, 419 U. S., at 579-580. Elsewhere in its opinion the majority asserts that the risk of error is "typically insignificant" because "paddlings are usually inflicted in response to conduct directly observed by teachers in their presence." Ante, at 677-678. But it cites no finding or evidence in the record for this assertion, and there is no such restriction in the statute or regulations authorizing corporal punishment. See ante, at 655n. 6, 656 n. 7. Indeed, the panel below noted specific instances in which students were punished by an assistant to the principal who was not present when the alleged offenses were committed. 498F. 2d, at 257, 259.

18 My view here expressed that the minimal procedures of Goss are required for any corporal punishment implicating the student's liberty interest is, of course, not meant to imply that this minimum would be constitutionally sufficient no matter how severe the punishment inflicted. The Court made this reservation explicit in Goss by suggesting that more elaborate procedures such as witnesses, counsel, and cross-examination might well be required for suspensions longer than the 10-day maximum involved in that case. 419 U. S., at 583-584. A similar caveat is appropriate here.

MR. JUSTICE WHITE'S analysis of the Eighth Amendment issue is, I believe, unanswerable. I am also persuaded that his analysis of the procedural due process issue is correct. Notwithstanding my disagreement with the Court's holding on the latter question, my respect for MR. JUSTICE POWELL'S reasoning in Part IV-B of his opinion for the Court prompts these comments.

The constitutional prohibition of state deprivations of life, liberty, or property without due process of law does not, by its express language, require that a hearing be provided before any deprivation may occur. To be sure, the timing of the process maybe a critical element in determining its adequacy -- that is, in deciding what process is due in a particular context. Generally, adequate notice and a fair opportunity to be heard in advance of any deprivation of a constitutionally protected interest are essential. The Court has recognized, however, that the wording of the command that there shall be no deprivation "without" due process of law is consistent with the conclusion that a post deprivation remedy is sometimes constitutionally sufficient. 1

When only an invasion of a property interest is involved, there is a greater likelihood that a damages award will make a person completely whole than when an invasion of the individual's interest in freedom from bodily restraint and punishment has occurred. In the property context, therefore, frequently a postdeprivation state remedy may be all the process that the Fourteenth Amendment requires. It may also be true -- although I do not express an opinion on the point -- that an adequate state remedy for defamation may satisfy the due process requirement when a State has impaired an individual's interest in his reputation. On that hypothesis, the Court's analysis today gives rise to the thought that Paul v. Davis, 424 U. S. 693, may have been correctly decided on an incorrect rationale. Perhaps the Court will one day agree with Mr. Justice Brennan's appraisal of the importance of the constitutional interest at stake in id., at 720-723, 734 (dissenting opinion), and nevertheless conclude that an adequate state remedy may prevent every state-inflicted injury to a person's reputation from violating 42 U. S. C. §1983. 2

1 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S.663; Fuentes v. Shevin, 407 U. S. 67, 82, 90-92; Ewing v. Mytinger & Casselberry, 339 U. S. 594, 598-600; Phillips v. Commissioner, 283 U. S. 589, 595-599; Lawton v. Steele, 152 U. S.133, 140-142; Cf. Gerstein v. Pugh, 420 U. S. 103, 113-114.

2 Cf. Bonner v. Coughlin, 517 F. 2d 1311, 1318-1320 (CA71975), modified en banc, 545 F. 2d 565 (1976), cert. pending, No.76-6204; see also Judge Swygert's thoughtful opinion, id., at569-578.

The legal wrangling over whether the Bristol district attorney's office can prosecute a Man-hattan executive for assault for spanking a woman at a secret sadomasochistic party in a converted Attleboro warehouse centers on a decades-old Springfield case involving two lovers, a riding crop, and their self-styled torture chamber.

It's been nearly a quarter of a century since a police department has used the so-called Appleby assault statute - listed under Massachusetts General Law's chapter on ''Crimes against Chastity, Morality, Decency and Good Order'' - to charge someone involved in consensual, rough-sex play.

But S&M practitioners worry that last week's charges signal that they'll have to burrow further underground. ''It's a wake-up call,'' said John Warren, 57, who founded Boston Dungeon Society in 1994. ''Most people know about Appleby, but they never thought it would be applied. Now it's being applied and it has scared people.''

In 1976, Kenneth Appleby, a 27-year-old pawnbroker, was sentenced to eight to 10 years in prison for beating his partner, Steven Cromer, with a riding crop. During the trial, Appleby testified that Cromer demanded beatings, and he complied. The two said they set up a ''torture chamber'' in his tar-paper shack in West Springfield, complete with a stretch-ing rack, leg irons, and other ''toys.''Appleby said the relationship was consensual, but Cromer told the jury he consented because he feared Appleby.

In a separate, earlier trial, Appleby was accused of busting his lover's kneecaps with a baseball bat. He was acquitted because Cromer testified that he had fallen. The second trial set the case law; the conviction was considered clear-cut because of Cromer's testimony.

But the Attleboro case strikes a different chord. Those familiar with it say the alleged victim wanted to be spanked. George Nassar, the lawyer who represented Appleby in the earlier trial, said he believes that in Massachusetts a person could be convicted of assault, even if the victim asked for it. ''The judge gave Appleby eight to 10 years in prison for what they called a glancing blow on the shoulder with a riding crop,'' Nassar said. ''The case was more like a Salem witch trial.'' But the law has never been tested at the appellate level.''At this point you just have somebody's opinion,'' said Robert Sheketoff, a Boston attorney specializing in criminal law. That means the case could go either way. And, already, those who fear that a conviction in the Attleboro case will threaten their lifestyle have banded together to raise a defense fund for Stefany Reed, the Manhattan woman charged with assault and battery, and New Hampshire resident Benjamin Davis, the S&M party host who faces a list of charges, including ''exhibiting or lending articles for self-abuse,'' and ''keeping a house of ill fame for lewdness.''

Davis and Reed were charged July 8 after Attleboro police stumbled upon the party in a downtown warehouse while investigating an unrelated theft. Roger Ferris, a part-time prosecutor handling the case, did not return calls last week.

The case of State v. Searle,²² from 1952, certainly can be classified as curious. By a vote of 4-1, the Montana Supreme Court overturned Searle’s conviction for sodomy with "a named boy of tender years." The boy, however "tender" his years, was old enough to be employed by Searle. The error found by the Court was that various other "boys" were permitted to testify as to "why [they] went to the defendant’s place of business." Although Searle had been convicted of sodomy, the Court reveals that the only physical contact between him and the witness was "swats," apparently a spanking for which the teenager would be paid, an act clearly not within the sodomy law.²³

This is what's clear from yesterday's dual rulings on sexual harassment in the American workplace: Now, more than ever, bosses are going to be agonizing about whether their employees are behaving inappropriately. They'll be worrying about it, studying it, obsessing over it and in an increasing number of cases, paying for it. Still unclear, however, is what sexual harassment actually is.

Yesterday's Supreme Court decisions established an important new touchstone for when companies can be held accountable for the actions of their supervisors. But the justices did little to address a vexing question: where is the line between casual workplace comment and actionable sexual offense?

Absolutely, said a U.S. District Court judge in 1991. In this case, a professor in Kansas State University's College of Agriculture allegedly warned his secretary several times that "he felt like he needed to hit her on the buttocks." When the secretary quit, the professor periodically gave his new secretary the same warning. She failed to take him seriously until he slapped her on the rear "hard enough to make her flesh sting."

"Without provocation or reason, the plaintiff – a dignified adult woman – was spanked on her rear end!" the judge marveled, writing that the professor's behavior "robbed the plaintiff of her self-esteem at the workplace; she was demeaned, degraded and humiliated . . . this court finds the defendant's behavior wholly unacceptable and sufficiently severe to constitute actionable sexual harassment."

Absolutely not, said a different U.S. District Court judge in 1995, ruling in a similar case. Before this judge was the case of a shoe saleswoman who was subjected to a birthday spanking from her male supervisor. That, the judge found, does not qualify as sexual harassment.

Noting that Title 7, the federal civil rights law under which most sexual harassment cases are brought, "does not proscribe such boorish behavior," the judge acknowledged that the spanking, combined with other indignities such as a bear hug, a request for a birthday kiss, and remarks that her age (she was younger than the supervisor) would prevent them from dating, were "unprofessional, crude, and clearly not amusing." Still, the judge found, this behavior did not "raise the incident to the level of creating a hostile environment which is pervasive or severe enough to alter the terms, conditions or privilege of employment."

These two lower court rulings, while several years old, illustrate the confusion that continues to reign throughout much of America in the 12 years since the nation's highest court made clear that sexual harassment is a form of discrimination as illegal as any other, but did not define the offense precisely. This confusion – not only in courtrooms but in the minds of most people – was exacerbated recently when U.S. District Court Judge Susan Webber Wright ruled that even if President Clinton exposed himself to Paula Jones while he was governor of Arkansas, that extreme act alone was insufficient to constitute sexual harassment.

Many people assume that any stray remark around the water cooler is likely to result in a federal case. That idea is misguided, say Yolanda Wu, a staff attorney with the NOW Legal Defense and Education Fund, and continues to be misguided even with the new rulings.

"It's really a high burden to meet to illustrate sexual harassment," said Wu. "One or two incidents – it's going to be very hard to show that it's sexual harassment." The Supreme court ruling "hasn't changed anything about what kinds of conduct constitute sexual harassment," said Eric Schnapper, a Seattle attorney and law professor who represented the plaintiffs in both of yesterday's cases. "All it's about is when the employer is going to be liable."

And so many American men will continue to worry about what, if anything, is permissible to say or do in a workplace anymore: You can't hang up a centerfold, presumably, but what about a Matisse nude? Telling someone they look nice may be okay, but what about saying someone looks hot?

The courts have typically recognized two categories of sexual harassment: the relatively clear-cut category of quid pro quo harassment, in which an employee is required to submit to sexual advances as a condition of employment, and the murkier category of "hostile environment," in which no sexual demands may be made but unwanted sexual comments and conduct are "pervasive or severe" enough to affect a person's job.

"Unless the conduct is quite severe," federal guidelines note, "a single incident or isolated incidents of offensive sexual conduct or remarks generally do not create an abusive environment."

So the average American can still get away with a considerable amount: the federal guidelines suggest that a one-time incident of offensive touching would be more likely to be considered sexual harassment than a one-time incident of offensive language, but even that principle is not absolute.

In fact, multiple incidents of offensive language don't necessarily make for sexual harassment: In 1995, the 7th U.S. Circuit Court of Appeals ruled that a boss who made at least eight obnoxious comments to his secretary – grunting "um, um, um" when she wore a leather skirt and saying that his office wasn't hot "until you stepped your foot in here" – had not sexually harassed her.

"It is no doubt distasteful to a sensitive woman to have such a silly man as one's boss," the court opined, but silliness doesn't equal sexual harassment. Nor are one-time incidents of offensive touching always considered sexual harassment. The federal guidelines describe a case in which a woman was touched and spoken to offensively while in a moving car; because she could not escape, she was deemed to be harassed, as was another woman who was drugged by her company's owner and raped while unconscious.

In numerous other cases, however, touching has fallen short of the definition: a district court ruled that an employer who allegedly called an employee into his office, locked the door and pressed himself against her so that she could feel his erect penis had not committed sexual harassment.

This sort of confusion is not likely to end any time soon; after all, as Wu of the NOW Legal Defense Fund points out, the Supreme Court, in yesterday's ruling, points out that Title VII is not a "civility code." Not even, sometimes, when it comes to spanking.

WILKINSON, Judge. The Penn-Delco School District (District) appeals an order of the Acting Secretary of Education (Secretary) sustaining the appeal of Respondent, a professional employee, who was dismissed by the Board of Directors of the District (Board) on grounds of immorality.

There is no serious contention Respondent was not properly dismissed by the Board pursuant to procedures outlined in the Public School Code of 1949 (Code) l following a timely notice and hearing held February 3, 4 and 5,1976. What is seriously disputed is whether the Board or Secretary properly defined and applied the standard of immorality used in the Code and whether evidence adduced at the hearing supports the Board's finding of immorality.

The charges against Respondent stem from two incidents involving two female students who were assigned to Respondent's classes. The first incident occurred in March of 1975. There is no material dispute as to the facts. Respondent, who knew the student both as a teacher and as a faculty advisor to the school newspaper, called the student, a 17-year-old senior, away from her newspaper assignment and into the corridor and offered, since it was her birthday, to "spank" her. The student, who at that time assumed Respondent was joking became concerned that he was seriously making an overture of an explicitly sexual nature when Respondent repeated his offer in a telephone conversation that same day. As a result, she immediately reported this incident to another teacher and thereafter to the school principal. At that time the student agreed that the incident should be treated as a joke and ignored; the principal advised her that she should report any similar overtures made by the Respondent in the future. Over the ensuing two weeks, Respondent sought this student outside of the classroom and attempted on two separate occasions to engage her in discussions about spanking2

On the occasion of the last incident, a conference was held with Respondent, school administrators and the girl's parents. Respondent admitted that he knew the student to be extremely shy and easily embarrassed and upset and further that he continued making these overtures knowing that they had caused the student to become nervous and upset. He told her parents and testified at the hearing that he had acted to "motivate" her as a pedagogical technique. Respondent apologized to the parents and was warned by school administrators not to engage in similar conversations with students in the future.

The second incident occurred in December 1976 with a 15-year- old10th grade student in Respondent's English Composition and Rhetoric Class. Respondent confiscated an admittedly embarrassing and incriminating note the student was writing during class to a girlfriend. The student asked Respondent to meet her after class concerning the return of the note and not to read it, to which Respondent agreed on both counts. Prior to the meeting Respondent read the note; he also made a photocopy. During the meeting, possible forms of discipline for writing the note in class were discussed. Both student and teacher testified at the hearing before the Board that Respondent suggested that the student wear a dress to school as a part of her punishment. Both testified that the subject of spanking within a sexual context and other matters of an explicitly sexual nature were discussed3 On the subject of spanking, Respondent admitted saying to the student, "It's not such a bad idea." At this meeting, Respondent returned the original of the note but informed the student he had made a copy which he was considering sending to her father. The student reported this incident to the school principal. As a result of this incident the student was permitted to transfer to an English class taught by another teacher.

A conference was held on January 14, 1976 concerning this incident attended by Respondent, administrators and the President of the Board. Respondent alleged that it was the student who broached the subject of spanking and further it was she who had made a sexual proposition to him in order to reacquire the note. Respondent admitted at this time that he had had sexual fantasies about spanking girls from1970 up to and including the time of these two incidents. On January 20,1976, the School Board notified Respondent he was being suspended with pay pending a hearing on charges of mental derangement and immorality based on his conduct with these two students. At the hearing, the charge of mental derangement was dropped. Respondent, again admitting the existence of these fantasies, testified that after the second incident they had become repulsive to him, but asserted it was impossible for him to predict his ability to control these fantasies in the future. Evidence and testimony was also presented showing that prior to these two incident9 Respondent had an exemplary record for all of his nine-year career as a teacher.

We are asked in this appeal to consider: (1) whether the Secretary erred in concluding that there was not substantial evidence in the record to support a finding of immorality under Section 1122 of the Code; and (2) whether the Secretary erred in holding that findings of fact and a statement of reasons must accompany the decision of the school board when dismissing a professional employee. Because we find the Secretary to be in error on both grounds, we reverse.

With respect to the Secretary's finding on the charge of immorality, we find it necessary to review first the definitional standard of immorality used by the Secretary, characterized as a course of conduct that rises to the level of a " 'grievous assault' upon the mores of the community." We conclude that this definition went beyond the standard of immorality in Section 1122 of the Code, judicially defined by our Supreme Court in Horosko v. Mount Pleasant Township School District, 335 Pa. 369, 372, 6 A.2d 866, 868, cert. denied, 308 U.S. 553, 60 S.Ct. 101, 84 L.Ed. 465 (1939) as "a course of conduct as offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and elevate." The Secretary asserts a more stringent standard of a "grievous assault" on community mores is necessary in this case because the Respondent's conduct, as speech alone, was at least partially protected by his First Amendment rights. - We cannot agree. When speech is likely to incite or produce imminent deleterious effects on the educational process, such speech, like obscenity, is not protected by the First Amendment. See Acanfora v. Board of Education, 359 F.Supp. 843 (D.C. Md.1973), aff'd, 491 F.2d 498 (4th Cir.), cert. denied, 419 U.S. 836, 95 S.Ct. 64, 42 L.Ed.2d 63 (1974).

Having concluded that the Secretary erred in defining the standard of immorality applicable under Section 1122 we must consider whether the Board's determination was supported by substantial evidence so as to justify its conclusion that Respondent's conduct was immoral within the meaning and context of Section 1122. A finding of the school board that a professional employee was guilty of offending the moral standards of the community by his actions will not be disturbed on appeal when supported by substantial evidence. Baker v. School District of City of Allentown, 29 Pa.Cmwlth. 453, 371 A.2d 1028 (1977). Such substantial evidence necessary to justify dismissal is determined by whether a reasonable man acting reasonably might have reached the same decision reached by the Board. Landi v. West Chester Area School District, 23 Pa.Cmwlth. 586, 353 A.2d 895 (1976). It is apparent in view of the entire record that the Board chose to accept the testimony of the two students as to what was said to them rather than Respondent's version. The Board, as the only fact finder with respect to these two incidents, and the only tribunal having the only opportunity to hear first-hand the testimony of both students and Respondent, resolved the issue of credibility against Respondent4.

It is true, as Respondent suggests, that he cannot be found guilty of immorality based solely upon his admitted fantasies. But in our view, the question of Respondent's fantasies is not at issue. What was judged by the Board was Respondent's conduct with these two students. Having chosen, as the Board did, to accept the students' versions of the incidents we cannot say the Board lacked sufficient evidence to reach the conclusion it did. The evidence shows that two students on two separate and totally unrelated occasions complained to their high school principal about Respondent's conduct which both perceived as sexual in nature. In the final incident which precipitated these charges Respondent's discussion with the student was explicitly sexual in nature.

Discussion of sexual subjects is a matter of particular sensitivity in society in general and when such discussion becomes a part of a course of conduct by an individual such conduct may be perceived by others as either amoral or immoral. When such matters are discussed with school age children, society, and particularly the parents of such children, become more acutely concerned both because such discussions can cause psychological harm and because children may view such conduct as a desirable example to follow. Where teachers engage in such discussions with children the problem is exacerbated because of the significant influence teachers exert over the intellectual, moral and psychological development of children. Where a teacher engages in such discussions outside the context o£ a classroom or a pedagogical setting, a school board, viewing these actions against the moral standards of the community, might well conclude that such conduct exceeds the bounds of propriety and fails to give students the proper guidance as to morals and standards of conduct which teachers should foster and encourage in their students. Such a finding is all that is necessary to deprive a teacher of the privilege of teaching children on the grounds that his conduct offended the moral standards of the community and set a bad example to the youth under his charge. See Horosko, supra..

We turn next to the question of whether the Secretary erred in concluding that findings of fact and a statement of reasons must accompany the decision of a school board when dismissing a professional employee. Section 1130 of the Code does not provide that such findings or reasons must be made when a professional employee is dismissed although such findings are required when a non-tenured employee is dismissed and seeks a hearing pursuant to the Local Agency Law.5 In his opinion the Secretary determined that the procedures set forth in the Local Agency Law should be used as a standard for procedural fairness in dismissing a professional employee. We believe this contention has been implicitly rejected by this Court in La Porta v. Bucks County Public Schools Intermediate Unit, No. 22, 15 Pa.Cmwlth. 566, 327 A.2d 655 (1974) where we held the procedures to be followed in the dismissal of a professional employee are determined by the provisions of the Public School Code rather than the Local Agency Law. While it is true, as the Secretary reasons, that such findings and reasons would facilitate review, a change in procedure explicitly set forth in the Code is properly the subject of the legislature rather than the Courts or the Secretary of Education.

Lastly, we consider a question raised by the Respondent that he did not receive a full and impartial hearing before the Board. This issue was raised on appeal to the Secretary but was not discussed in the Secretary's opinion. However, this record could not support a finding that he did not receive such a hearing. As the Court stated in Spruce Hill Township School District v. Bryner, 148 Pa.Super. 549, 25 A.2d 745 (1942): "The making of the charges presupposes that the members of the board had some knowledge of the facts upon which the charges were based. . . . That a member of the board had an opinion at the time the charges were preferred . would not disqualify him from participating in a hearing on those charges, or invalidate the proceedings. We do not think that anything more was required of members of the board than that they could hear and determine . . . evidence given before them, uninfluenced by other previous impressions." Id at 556, 25 A.2d at 748.

After a careful review of the records of the hearings before the Board and the Secretary the conclusion must be that there was insufficient evidence to show that any school board member's opinion was fixed or unchangeable or that such an opinion dictated the result of the Board's deliberations. At most the record shows Respondent was not permitted to question a school board member under oath concerning what individual or persons he talked with prior to the Board instituting charges. However, this board member also asserted at the hearing that he had not prejudged the charges against the Respondent6

AND NOW, February 8, 1978, the order of the Acting Secretary of Education, dated March 2, 1977, No. 288 is hereby vacated, and the decision of the Board of School Directors of the Penn-Delco School District, Delaware County, terminating the contract of Thomas J. Urso, dated February 5,1976, reinstated.

May 15 ( 2000 ) -- The four rules of sex harassment controversies. We thought we had 'em memorized after the Anita Hill affair ... then we had to unlearn all four during the late unpleasantness with President Clinton ... and now they've all returned in coverage of the Pentagon's Claudia Kennedy case. (David Frum, "Breakfast Table" with Danielle Crittenden Frum, Slate, May 12). In other harassment news, a jury has awarded $125,000 to a male waiter at a T.G.I. Friday's near Tampa who said that female co-workers touched and grabbed him lewdly, that co-workers made fun of him when he complained, and that the restaurant chain proceeded to ignore his plight and retaliate against him. (Larry Dougherty, "Waiter wins suit against Friday's", St. Petersburg Times, May 5). And a Wisconsin appeals court has upheld a trial court's award of $143,715, reduced from a jury's $1 million, to a computer analyst who "said his boss spanked him with a 4-foot-long carpenter's level during a bizarre workplace ritual" and then announced "Now, you're one of us". The boss testified that the spanking ceremony dated way back as an initiation at the Phillips, Getschow Co., a century-old mechanical contracting firm. (Dennis Chaptman, "Court upholds $143,715 award for spanking", Milwaukee Journal-Sentinel, April 18).

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