open hand and one with a wooden paddle -- by the principal. We think that the incident in Thomas was corporal punishment and had the case not been withdrawn, by the decision of the parent to place the child in a parochial school, the constitutional issues which plaintiffs herein seek to litigate might have been decided.
Having come to the above conclusion with respect to the present case we cannot avoid making certain conclusions with respect to the conduct of this and related litigation. This is the second attempt of the legal organization representing plaintiff to bring a philosophical concept before the court in the guise of a lawsuit. Inasmuch as the Constitution limits the jurisdiction of this court to actual cases and controversies and because the Federal Rules of Civil Procedure require that a party bringing suit be the real party in interest we have serious doubts whether this case really fulfills either requirement. Certain propaganda activities concerning this type of litigation were brought to the attention of the court and counsel during consideration of this case. The effort of this legal organization to attract a client for this type of legal action by the circulation of handbills and publication in its newspaper lead to the inference that these counsel have a lawsuit in search of a client rather than a client seeking redress of a grievance.
This observation is fortified by the fact that the identical reports of the same expert witnesses were proffered here to oppose the motion for summary judgment as were filed in the prior case of Thomas v. Harkins, regardless of substantial differences in the facts of the two cases. The substance of the reports is a generalized observation as to the superiority of reward to punishment as a method of encouraging a desirable behavior pattern. Few people will quarrel with that proposition and it does not require the assistance of an expert witness to allow a finder of fact to so find. Even the expert allows that ". . . punishment is effective in immediately suppressing a response or type of behavior . . .". This was the situation facing the teacher here, whether or not we call the teacher's reaction "punishment" or a simple reaction to control an immediate situation.
We feel that there is a great danger in such a situation in that the young, inexperienced counsel who are employed by such a legal organization, inspired by some concepts of legal activism, might be inclined by their zeal to formulate a hypothetical case to meet the requirements of their ready-made cause of action. In a very significant way it has become apparent here that the real party in interest is not the nominal plaintiff but the legal services organization that acts as counsel.
And now this 7th day of May, 1975, the matter having come before the court on the motion of all defendants for summary judgment and the court having considered the motion and the response of plaintiffs, it finds no genuine issue of material fact and the motion of defendants for summary judgment is granted, and the action of plaintiffs is hereby dismissed.
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