Dark Sarcasm in the Classroom: The Failure of the Courts to Recognize Students' Severe Emotional Harm as Unconstitutional

39 Pages Posted: 18 May 2014 Last revised: 28 Aug 2014

See all articles by Emily Suski

Emily Suski

University of South Carolina School of Law

Date Written: 2014


Sometimes the very people who are supposed to teach, nurture, and protect students in public schools — the students’ teachers, principals, coaches, and other school officials — are instead the people who harm them. Public school officials have beaten students, causing significant physical harm. They have also left students suffering from depression, suicidal ideation, and Post-Traumatic Stress Disorder. When school officials cause such severe harm to students, all the federal courts of appeals to consider the issue have concluded that the Fourteenth Amendment at least in theory protects them, regardless of whether the form of the harm is emotional or physical. Yet, an analysis of the cases across the circuits reveals that the courts have yet to actually find that a case of severe emotional harm on its own violates the Constitution, even though they have been willing to find physical harm unconstitutional. Not only do the courts not find stand-alone emotional harm sufficient to make out a constitutional violation, they also collectively evaluate students’ emotional harm very differently than their physical harm.

This Article explores the distinction in the way the courts treat standalone emotional harm in public school students’ Fourteenth Amendment cases. It contends that if the courts are going to recognize that the Constitution protects students from severe harm regardless of its physical or emotional form, as they do, then the distinction in treatment of emotional harm is untenable. Drawing on substantive due process theory, psychology, and law and emotions theory, this Article argues that the distinction in treatment is the result of emotions stigma, analogous to the long-recognized phenomenon of mental illness stigma, that discredits students’ emotions-based claims. It proposes a paradigm for evaluating students’ emotional harm that responds to and helps to overcome emotions stigma so the Constitution will protect students when school officials cause them severe emotional harm.

Keywords: students, education, emotional harm, Fourteenth Amendment, public schools, substantive due process, law and psychology, Constitution

JEL Classification: I20, I29, K13, K10, K30, K39

Suggested Citation

Suski, Emily, Dark Sarcasm in the Classroom: The Failure of the Courts to Recognize Students' Severe Emotional Harm as Unconstitutional (2014). Cleveland State Law Review, Vol. 62, 2014, Georgia State University College of Law, Legal Studies Research Paper No. 2014-23, Available at SSRN: https://ssrn.com/abstract=2438006

Emily Suski (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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