What is Group Punishment?
In a school setting, collective (or group) punishment is the discipline of an entire group for the action of one or more of its members. In most school settings, group punishment is literally carried out by punishing the entire class, i.e. sending the class to detention or keeping children in at recess. While often well-intentioned (such as when it is desired to deter a child from bullying when there are no witnesses to the behavior), it is unpopular with many students . Many feel such punishment is unfair – why should everyone suffer because of what one or a few do? The United States Department of Education and its Office for Civil Rights have stated that the use of collective punishment "can constitute discrimination on the basis of race, color, national origin, sex, or disability and may result in a school being found in violation of its obligations under Title VI, Title IX, Section 504, or the [American with Disabilities Act]." The Department has explicitly stated that when collective punishment is used school district officials "should take all reasonable steps to identify ‘who’ did what to assist in determining the appropriate disciplinary response."
Legal Analysis of Group Punishment
Neither the case law nor the legal literature provide a clear perspective on the issue of collective punishment in schools. For example, a 1995 report of a prosecutor investigating a major school discipline scandal in the Cleveland County, Arkansas, school system, states that "the seriousness of the punishment determines whether a method of discipline constitutes corporal punishment" and that "reprimands, loss of recess, suspension or expulsion from school [not being corporal punishment], may be considered collective punishment." However, another lawyer wrote: "I am unaware of any court making such an exception to the prohibition of collective punishment, but lawyers are prepared to accept rigid and immutable rules only when there is no room for interpretation, and neither of those circumstances exist in this area of discipline. Certainly it has not been proven that collective punishment is or should not be permitted in all circumstances. . . . [W]hile collective punishment is for the most part illegal, it is sometimes permissible . . . . However, . . . collective punishment is generally disallowed under judicial decisions . . . ."
A 1998 article states: "The prohibition of collective punishment is sweeping in scope. It applies to any discipline method that imposes punishment on all members of a group for the misconduct of one or more members, regardless of who actually engaged in the prohibited activity, where there is no rational basis for the group sanction. Thus, schools may not impose detention on all students because one student arrives late to class late, nor may they require all students to clean the cafeteria as punishment for the litter left by some of the students." Of course, the facts of the particular case will ultimately determine whether a "rational basis for the group sanction" existed. For example, a school district may reasonably believe that late development of promiscuous behavior by teenagers in a particular community may lead to problems such as the spread of venereal disease, and thus, may adopt a district-wide policy to impose educational sanctions on all students (such as requiring them to attend an educational session on the problem, such as how to prevent its occurrence) when they are caught breaking the rules related to promiscuity, and may choose to include all students rather than only those suspected of promiscuity among the students required to attend the educational session. In an interesting twist, the National School Board’s Association (with other organizations) has addressed the issue of collective punishment, somewhat contrary to its 1986 resolution wherever possible, in its 2010 "Position Statement on Corporal Punishment," which now states: "No school should ever punish an entire class or group for the actions of one or a few members of that group, as this is effectively the sanction that most schools ceased using 30 years ago. Furthermore, where corporal punishment is utilized, it must be administered with clear local board policy guidance that permits corporal punishment only in cases where the misconduct is witnessed firsthand and that prohibits collective punishment."
Early History and Cases
Throughout history, the practice of collective punishment among students subject to the same discipline has been a common sight on school playgrounds. However, the practice has not gone without challenges. From the 1957 U.S. Supreme Court case Wieman v. Updegraff et al. to the 1986 Virginia Court of Appeals case Ash v. Special School Dist. No. 7, the permissibility of collective punishment within the American school system has been repeatedly tested.
In 1957, the U.S. Supreme Court ruled in Wieman v. Updegraff that accountability between students was not "a concept accepted or recognized by the law of any state," and found that the practice of collective punishment had a "high degree of arbitrariness" surrounding its effectiveness (2).
With this modern precedent and the ensuing interpretation of it among American states, what is the legality of collective punishment? Simply put, there is no universal answer. Conclusively addressing whether or not the practice is permissible requires three critical components:
In 1986, the Virginia Court of Appeals ruled in Ash v. Special School Dist. No. 7 that punishing members of a sports team equally for the actions only some of its members violated both the substantive due process rights of the punished as well as the Equal Protection Clause of the U.S. Constitution (4).
Throughout United States history, collective punishment among members of a group, especially in schools and prison systems, had been a means of ensuring compliance from members of otherwise non-compliant groups. Perhaps because the punishment had the deprecated goal of preventing non-compliance, there existed little challenge to its legality until the 18th and 19th centuries. In August of 1776, a British Army Captain punished soldiers beneath his command for an attack against a rebel encampment, forcing them to march to the Town Hall of the town which served as a British strong-point, take off their shirts, and sit in front of a crowd of townsfolk. Patrick Pearse’s autobiography recalled that the soldiers were "making an exhibition of themselves by their conduct" (6) and wrote of a soldier with a "pride in clothes that was inherited from the parvenue merchant classes" who reacted to the alternative method of punishment with "dismay."
In China, collective punishment is utilized in classes for very young children. In South Korea, during the 1970s and 1980s, faculty and administrators of middle and high schools used the practice to compensate for what they viewed were failing moral standards. In Japan, collective punishment has been used for a variety of infractions, including instances when a group is suspected to share information. In Singapore, the practice was implemented into school discipline procedures by the Ministry of Education from 1955 to 1987.
Throughout these cases, the element of agency on the part of the punished is important to the application, and in many instances, sets in motion future cases against the practice. Where the oppressed lacked agency supporting the association, the punishment was upheld, but where the oppressed or those applying punishment as a group had discretion for their actions, future decisions have favored the oppressed.
The question of legality may not yet be universally answered, but considering the historical context of the practice and the foundation built for future rulings, the practice is becoming more and more uncommon, if not altogether illegal.
Proponents and Critics of Group Punishment
While there is a legal precedent which indicates that collective punishment is not unlawful, it is still an area in which the law remains unclear. The law in Canada is not settled as to whether collective punishment, in the school context (as opposed to in the workplace context), is prohibited by the Canadian Human Rights Act and various provincial human rights statutes. Canadian courts and human rights tribunals have not yet decided whether collective punishment of students is unlawful and in what circumstances, if any, it is against the law. However, various arguments have been made for and against the use of collective punishment within the school environment.
Many educators and parents believe that a classroom environment where children are punished for the actions of others is not conducive to learning. One argument against collective punishment in the context of the school environment is that it fails to teach the offending child an important lesson: Personal responsibility for one’s own behaviours and the importance of "owning up" to one’s mistakes and shortcomings. Several educators assert that the traditional method of collective punishment can easily lead to resentment and apathy, as well as frustration on the part of students when they are disciplined for behaviours that they did not commit. While this theory makes sense, and at first glance appears reasonable, the fact remains that it is very difficult for teachers to know exactly who commits what action when all students are together in a classroom or on a field trip. There may be valid and important grounds to discipline a group of students even though only a few of the students deserve to be singled out and held responsible. Another argument for collective punishment is that to do otherwise will arguably damage the group dynamic as punishable behaviours are sometimes only committed by a few individuals while the rest of the group is treated fairly and respectfully. Group dynamics often requires children to participate in a cohesive manner – and treating a group as individuals is not practical.
Others have suggested that assuming there is an age disparity in children, some older children should be able to know better, and should be punished or forced to pay differential restitution for the cost of replacing something broken, or paying for damages caused by vandalism on school property, than younger children. In such cases, if there is a clear connection between the group’s vandalism and the actions of the older students, the older students could be punished more severely.
Some educators believe that punishment meted out for the actions of a small group can act to diffuse responsibility for the actions of the small group. This diffuse responsibility would, in turn, encourage the children to stop the actions for which the group is being punished (i.e. if the children were aware that punishments had been handed out, they may take steps to cease the prohibited activities). These educators argue this would have the beneficial effect of stopping the activity at the source. It can be argued that such diffuse responsibility works to some extent. However, it does so at the expense of one of the principle tenets of the justice system. In other words, it appears to undermine the principle of individual responsibility.
International Opinions on Group Punishment
Efforts to ban collective punishment are not limited to the United States. In fact, the majority of the other treaties and agreements in which the United States participates specifically prohibit collective measures as a method of punishment or discipline. The International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly in 1966, expressly provides: No child shall be subjected to torture or to other cruel, inhuman or degrading treatment or punishment (Article 7). The Convention on the Rights of the Child, adopted by the United Nations General Assembly in 1989, further states: No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. . . (Article 37). In 1997, the general assembly adopted General Comment No. 8 which addresses the rights of children with respect to their participation in the criminal justice system. Included within this resolution , is a comment that states: [Collective penalties] are contrary to the provisions of the Convention and might also lead to violations of the right to liberty and to a fair trial. Such measures violate the rights of the child as guaranteed, inter alia, in articles 40(2)(a) (to be presumed innocent until proven guilty), 40(2)(b) (to be informed promptly and directly of charges), 40(2)(c) (to have legal or other appropriate assistance in the preparation and presentation of his or her defence) and 40(2)(d) (to have his or her privacy treated in a manner appropriate to his or her age and sense of dignity). There an also be conflicts with article 28 and 29. General Comment No. 8, para. 16, U.N. Doc. CRC/C/GC/8 (1997); see also Discipline Policies for Children Under the Age of 18, U.N. ESCOR, Commission on Human Rights, U.N. Doc. E/CN.4/2002/L.33, para. II.3 (2001) (The Commission recognizes that respect for the inherent dignity of the human person, including those of children and adolescents is a principle that must be respected. States parties may not reintroduce corporal punishment within their territory, inter alia, on the basis of customary or religious law.)
Effect on Student Body and Campus Environment
Instead of targeting individual misbehaviors, collective punishment can "throw a wet blanket on the school climate," according to several experts interviewed in Education Week. Dr. Donna Nadler, a clinical psychologist, explains that such an approach has been shown to "induce feelings of betrayal and alienation, and those feelings can manifest themselves in acting-out behavior."
As such, instead of deterring problematic actions — the goal of any punitive policy — administrators may be driving students toward "indiscriminate defiance." Writing for Time, James B. Stewart states, "Even if collective punishment is not new, the sheer scope of it in some American schools has been shocking."
In addition to fostering defiance, collective punishment often only addresses the issue being dealt with after it has already occurred. According to former president of the National Association of School Psychologists, Dr. Cecil Reynolds, "any kind of punishment . . . is reactive, not preventive. You can’t look at a whole school and treat them with punitive action . . . without losing sight of the fact that it has to be preventive."
Along with the potential for increased unruliness within schools, collective punishment may also bring about adverse psychological effects. Dr. Jack Degensoff, a clinical and forensic psychiatrist, states, "The emotional harm of being punished by school authorities for things beyond your control — things you didn’t do; things that happened before you got to school or after you left school, but happened while you were there — is enormous."
Current Patterns and Options
In recent years, there has been a growing recognition in many school districts of the need to adopt discipline policies that focus more on prevention and provide alternatives to punishment. This trend has led to the development of programs aimed at both preventing misconduct and serving as alternatives to traditional disciplinary measures.
One such approach is positive behavior intervention support (PBIS). These PBIS programs emphasize creating an environment in which all students are treated with dignity and respect. They also strive to develop individualized, appropriate interventions for students who may have disabilities . The programs emphasize proper training for teachers and staff to ensure that they are equipped to respond effectively to students’ behavioral issues while recognizing and addressing the unique needs of each student. These programs have been increasingly implemented in public schools across the United States.
Another recent development is what is known as restorative justice. This approach has been adopted by both private and public schools across the nation. It aims to address misconduct in ways that allow for students and teachers to explain their actions, respond to emotional and psychological issues faced by students with special education needs, and repair the interpersonal relationships that may have been harmed or damaged. Many schools have adopted this approach as an alternative to traditional detention-style discipline.