In 1975, the United States Supreme Court concluded that the due process provisions of the Fourteenth Amendment require that students are entitled to a hearing prior to any prolonged ejection from school for disciplinary reasons . In the landmark case of Ingraham v. Wright , 2 years later, questions of students' constitutional rights in a disciplinary setting were again considered. Specifically, the Court considered two questions; 1) whether the reprimand-induced paddling of two male students violated their Eighth Amendment right to be free from "cruel and unusual punishment," and 2) whether the action violated their Fourteenth Amendment right to due process; i.e., their right to a hearing before the infliction of punishment.

The Court answered both questions in the negative declaring that the Eighth Amendment proscription against cruel and unusual punishment is designed to protect those charged and/or convicted of a crime, rather than students in a school disciplinary setting.

Second, the Court held that the common law remedies civil actions and criminal liability adequately protected the students' Fourteenth Amendment due process rights. The Court noted that the school milieu is an open organization with sufficient public surveillance to minimize the chance of abuse children.

The Court in Ingraham specifically left open the question of whether and under what circumstances corporal punishment of a student might give rise to an independent federal cause of action to vindicate substantive rights under the due process clause.

Since Ingraham, several Appeals Courts have proceeded through the opening provided by the Supreme Court and have remanded for trial, cases in which students alleged violations of their substantive due process rights.

In Hall v. Tawney , the Fourth Circuit Court defined this as "the right to be free from state intrusions into the realm of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court." , when the punishment imposed is so excessive and egregious that it can no longer be viewed as relating to the state's interest in maintaining order in the classroom, substantive due process rights may be implicated.

The Tenth Circuit Court has agreed with Hall stating that "we believe that Ingraham requires us to hold that, at some point, excessive corporal punishment violates the pupil's substantive due process rights (remanding for trial a case in which a 9-year-old girl was held up by her ankles and hit with a board on the front of her legs until they bled, resulting in a permanent scar).

Agreeing with the Fourth and Tenth Circuits, the Eighth Circuit established a 4-step test to be used in determining whether particular conduct has resulted in violation of a student's substantive due process rights. --Wise v. Pea Ridge School District, 855 F. 2d. 560 (1988).

"We believe that a substantive due process claim in the context of disciplinary corporal punishment is to be considered under the following test:

• 1) the need for the application of corporal punishment;
• 2) the relationship between the need and the amount of punishment administered;
• 3) the extent of injury inflicted; and
• 4) whether the punishment was administered in a good faith effort to maintain discipline or maliciously and sadistically for the very purpose of causing harm."
  

Nevertheless, the burden of establishing a substantive due process violation, regardless of which circuit's definition is used, is a very difficult burden to meet. Generally speaking, it would be easier to prove a criminal case of assault and battery than to prove that a teacher has violated a student's substantive due process rights in a particular school disciplinary action.