Elena Scotti/FUSION

Depending on whom you’re inclined to believe, the recess exercise at Horton Elementary School in San Diego was either a physical education exercise instilling healthy practices or an instance of punitive physical abuse. On a hot Friday afternoon in mid-October, a group of 4th and 5th graders caused a disturbance in the cafeteria. Some of the nine- and 10-year-olds banged on tables, like nine- and 10-year-olds are inclined to do.

According to a letter drafted by the local ACLU, one kid may have taken a bathroom pass from a staff member’s pocket. When the principal was notified, all 35 students in attendance were promptly rounded up and sent outside, where instead of holding their regular recess they held a planking position on the schoolyard’s sizzling blacktop. If they chose not to comply, the principal told them, they’d be sent to juvie—a school-to-prison pipeline of the most literal kind.

It’s worth noting that the Unified school district, one of the largest in California, employs its own police force and launched an inquiry into the diversity of its administrators following a blackface incident a few years ago. Horton’s students are also more than 80% Latinx. According to parents and a report on the local news, students sustained burns on their hands and in one case required a cast.

Advertisement

When the students repeated the exercise over the next couple of days, doing penance for the original infraction, they brought sweatshirts to wrap over their hands—as the ACLU put it, relying on their own “craftiness” to ensure the school “did not inflict pain on them.” The exercise was repeated for a few days the next week, according to parent complaints collected and filed by the ACLU.

The school, in response to the parents, issued a stay-away order, mandating that they leave school premises. That Wednesday, when the local San Diego education activist Sally Arguilez Smith, a former attorney, visited the principal, she says the exercise had turned to jumping jacks. There are two competing regulations in California’s education code: One allows school administrators to detain children during recess for disciplinary reasons, another forbids it, Arguilz-Smith says. “They’ve shown that they’re arbitrary in how they use this education code.”

By the time the ACLU got involved, writing a letter demanding an investigation and apology as well as citing a recent report on the California school-to-prison pipeline, the exercise during recess was being framed as a modified recess—physical education of an entirely different sort.

The district did not immediately respond to request for comment, but in a written statement last week it rejected the allegation of corporal punishment. “Instead of free play, the students engaged in PE-type activities including jumping jacks, squat holds, as well as holding the push-up position for 10 seconds,” district spokespeople wrote. “The structured recess was an opportunity to reinforce the importance of safety and following directions, as well as engage in exercise.”

Advertisement

A few weeks ago the Obama administration published an open letter to state officials calling for a universal ban on corporal punishment in schools. In his opinion that punishing children with physical violence is a backwards practice perpetuating cycles of violence, the education secretary has a lot of company—the “spare the rod, spoil the child” school of thought has been criticized by organizations from Education Week to the Women’s National Law Center, who cite statistics on the massive disparity between how often white and black children get the switch.

But as is the case at Horton elementary, the question of what constitutes corporal punishment in the first place is malleable in the hands of individual districts and administrators, and in lieu of hard rules schools can fall back on violent tactics. Which isn’t even to speculate about what may happen after January, when local control of schools becomes the education department’s prevailing (and, so far, only) narrative.

Arguilez-Smith had three of her own kids go through the Unified school district: “It’s not pretty,” she says. Language barriers and “fear of retaliation” for complaining about school practices make it hard for parents to dispute injustice, or even ask questions. There have been an unusually high number of “stay-away” orders in the district, too: “You have parents who wanted to ask questions, and they were met with a gag order, essentially,” says ACLU attorney Bardis Vakili.

At least in California, unlike many states, corporal punishment is banned outright, allowing the ACLU to get involved. But the state also has an unprecedented level of local control over how funds are used in public schools, hence the in-house police. In a speech two days ago, the pro-charter professional rich person (and sibling of the Blackwater founder) Betsy DeVos, Donald Trump’s pick for education secretary, promoted “school choice” and “local control” over federal oversight of public schools. A decades-long proponent of charter schools and taxpayer-funded vouchers for private education, DeVos used talking points familiar to anyone paying attention to California’ education overhauls.

Since the Supreme Court decided in the 1970s that the concept of “cruel and unusual punishment” didn’t necessarily apply to schoolchildren, local custom and individual district’s rules have dictated when it’s acceptable to punish a child physically, and how. In the case that decided lickings would, in fact, be dictated on a state-by-state basis, the presiding justice wrote that “the prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration.” Which, as we now know, isn’t exactly true—when Education Week investigated corporal punishment in American schools this August, it found Tasers and chemical spray being used along with old standbys like the paddle or the switch.

Advertisement

Today, the practice is either expressly legal or not banned outright in 19 states, resulting in a wild patchwork of regulations often left up to the whims and biases of school administrators. In North Carolina, for instance, nearly 40% of instances were for minor infractions like cell phone use or inappropriate language in the last few years; in Memphis, Tennessee, district bans mean public school students won’t be hit but those who attend a local charter likely will. In the Bible Belt, in particular, the maxim of “spare the rod, spoil the child” is still very much in effect; the religious right loves it. In January a Brookings study found that seven Southern states account for more than 80% of corporal punishments. Many schools use it as an alternative to out-of-school suspension, meaning for parents who can’t miss work it’s an attractive alternative.

And as has been widely reported, like suspensions and incarceration rates, corporal punishment disproportionately affects students of color and kids with disabilities. Black students are, in some states, 70% more likely to be struck than their white schoolmates. In Maine, where the practice isn’t outrightly banned but where Paul LePage (a man who is essentially doing a very bad Trump impression) has called corporal punishment a “school choice,” students of color are eight times more likely to be at the receiving end of the belt.

Advertisement

When I spoke to Brianna Twofoot, who’s worked in Maine and Mississippi as an educator and an advocate for school-age children, about what the future might hold for these issues, she laughed sardonically. She, like all of us, has no idea what will happen after Inauguration Day. All she can really say is that the right tends to shift towards local control.

But the lawyer in charge of the complaint against San Diego Unified, Bardis Vakili, paints a picture that’s already pretty bleak: In California, for instance, multiple stories of room confinement in schools, and the massive difficulty immigrant families face when it comes to even asking simple questions about how their kids are being disciplined. There are a lot of words being thrown around in Southern California schools—diversity, restorative justice—but a lag in visible action.

“It’s hard to speculate about the new administration,” he says. “It’s bad enough now.”