May 13, 2011
Courts agree teacher used excessive force
By ANDREW BERGH
Special to the Journal

Once upon a time, teachers used corporal punishment to maintain discipline in public schools.

This flowed from the fact that while children were in school, teachers were expected to act as substitute parents, with all the normal forms of parental discipline available to them. As a consequence, students were often punished with the birch, cane, paddle or strap — ouch! — if they did something wrong.

Nowadays, though, corporal punishment on campus is expressly banned by statute in most states, including Washington. This doesn't mean force can never be used on a child, as another law in Washington allows “physical discipline” by a parent or teacher as long as it is “reasonable and moderate” and administered for purposes of “restraining or correcting” the child.

But instances of physical force in the classroom are becoming rare.

For one thing, in our ever litigious society, teachers must be wary of civil lawsuits brought by disgruntled parents who feel their children were physically abused. And as shown by State v. Jarvis, teachers in the Evergreen State may even face criminal prosecution if they cross the line by using excessive force.

Karen Jarvis was a special education teacher at an intermediate school in Pierce County.

On Jan. 10, 2008, the school held a so-called “lock-down drill.” (If you're drawing a blank, a lock-down drill tests preparedness in the event of an intruder or criminal act. All students and instructors must report to a designated room, lock all doors and windows, and remain still until a “clear signal” has been issued.)

Although there were no written rules, the established procedure for Jarvis's class required all students and teachers to wait inside a bathroom during the drill. C.B., a special education student with Down syndrome and limited verbal communication skills, instead hid under his desk because he mistakenly thought an earthquake drill was taking place. (In lieu of C.B.'s real name, court records only use his initials.)

After trying unsuccessfully to coax C.B. out from under the desk, a teacher's aide decided the best course of action was to stay with him in the classroom.

But Jarvis disagreed.

Instead, the teacher approached C.B. and yelled at him to come out from under the desk. When the youth refused, Jarvis threw the desk off of him and then proceeded to drag C.B. by his wrist and ankle approximately 25 feet across the floor to the bathroom. All the while, C.B. was screaming hysterically and trying to resist. And when he grabbed the jamb of the bathroom door, Jarvis jerked C.B. free and swung him into the bathroom, where he slid seven or eight feet across the tile floor.

Sound like unreasonable force to you? The local prosecutor sure thought so, as Jarvis soon faced a fourth degree assault charge in Pierce County District Court. (The fact that it was fourth degree assault, which is the lowest form of assault, suggests that C.B. wasn't seriously hurt.)

It's unclear whether Jarvis was offered any plea bargain or even amenable to one.

What's known, however, is that a Pierce County jury found her guilty as charged in September 2008. After a Superior Court judge affirmed her conviction, Jarvis convinced a Washington appeals court to review her case. But it was ultimately all for naught, as the appeals court recently rejected all of her arguments.

Under Washington's assault statute, fourth degree assault includes a “harmful or offensive touching” with criminal intent. According to Jarvis, this statute is unconstitutionally vague because it didn't give her “fair warning” as to what conduct was prohibited.

But this argument was DOA.

When challenging a statute's constitutionality on vagueness grounds, said the court, the defendant must prove beyond a reasonable doubt that “ordinary people cannot understand what is prohibited.” That wasn't the case here, the court ruled, because an ordinary person would understand that Jarvis's conduct — i.e., dragging a child 25 feet by the wrist and ankle as the child struggled hysterically, jerking him free from a door jamb, and then slinging him seven or eight feet across a bathroom floor — amounted to a harmful or offensive touching.

Jarvis also argued that there was insufficient evidence of any “criminal intent” on her part. According to her, this required some showing of malice or ill will.

But the appeals court again didn't buy it.

The only intent required for assault, said the court, is the intent to make physical contact with the victim, not any intent that the contact be malicious. Since it was “uncontroverted” that Jarvis had intended to drag C.B., the court held there was ample evidence of intent.

Having whiffed at three different court levels, it looks like Jarvis's day of reckoning has finally come.

While I suspect her teaching career may be threatened, the smart money says she won't receive any corporal punishment.