c34:No. 73-1720

MEHAFFY, Chief Judge
(dissenting).
The majority opinion reverses the district court’s dismissal in this case primarily on the ground that plaintiffs should have been allowed an opportunity to prove their claims of excessive punishment. I cannot agree with the majority’s conclusion and I respectfully dissent.
This is not an action challenging any specific incident or incidents of excessive corporal punishment. No defendant in this suit is alleged to have administered even a single blow. Instead, the defendants in this action are the members of a public school board who have established a policy authorizing corporal punishment. Plaintiffs contend that the defendants’ policy is devoid of any regulations regarding the administration of corporal punishment and that this silence results in excessive punishment. Even assuming that the defendants have in fact delegated to each teacher full discretion to administer such corporal punishment as the teacher may deem proper, I fail to perceive any federal constitutional claim upon which relief could be granted against the school board.
Arkansas law, like the law of almost every other state in the Union, limits the authority of a public school teacher to administer corporal punishment to such punishment as is reasonable in light of the physical characteristics of the student and the nature of the student’s offense. The administration of any punishment that exceeds reasonability in light of the student’s physical characteristics and the nature of the offense will expose the teacher personally to civil and perhaps criminal liability. See, e. g., Berry v. Arnold School Dist., 199 Ark. 1118, 137 S.W.2d 256 (1940); Annot., 43 A.L.R.2d 469 (1955); Restatement (Second) of Torts §§ 153(2), 155(a) (1964). Given the limitations that Arkansas law places on a teacher’s authority to administer corporal punishment, I do not understand how the defendants’ alleged failure to provide regulations can be construed as an authorization or condonation of excessive punishments.
I feel the court should confront the merits of all of plaintiffs’ allegations and affirm the dismissal ordered by the district court.

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