As children return to the classroom this fall, many will be caught in dysfunctional and discriminatory systems of discipline. If history is any guide, Black children will be suspended, spanked and arrested at rates far higher than their peers. Students with autism will be locked in windowless rooms. Police officers will body-slam teenage girls and handcuff 10-year-olds. Authorities are unlikely to be held accountable in any of these cases.

One might reasonably ask, “By what right do schools punish students in the first place?”

Unfortunately, Americans have never really been able to answer that question. Indeed, many injustices persist in our schools precisely because punishment remains legally and morally incoherent.

School punishment was fairly straightforward at first. Education was overwhelmingly private and voluntary through the early 19th century. Under the common law, teachers acted in loco parentis (“in place of parents”), giving them wide latitude in punishing children. Parents vested this power when they chose the school, and if they were dissatisfied with a teacher’s methods they could simply withdraw their child and choose another one.