In loco parentis
Encyclopedia
The term in loco parentis, Latin
for "in the place of a parent"" refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent
. Originally derived from English common law
, it is applied in two separate areas of the law.
First, it allows institutions such as colleges and schools to act in the best interests of the student
s as they see fit, although not allowing what would be considered violations of the students' civil liberties
.
Second, this doctrine can provide a non-biological parent to be given the legal rights and responsibilities of a biological parent if they have held themselves out as the parent.
The in loco parentis doctrine is distinct from the doctrine of parens patriae
, the psychological parent doctrine, and adoption. In the United States, the parental liberty doctrine imposes constraints upon the operation of the in loco parentis doctrine.
, founded in Manchester, England, in 1855; adopted in loco parentis as its motto, well before the world's first Public Education Act of 1870. The school was established to educate and care for orphans and children of distressed parents; during times when the average longevity of Manchester factory workers was twenty years old.
In loco parentis had only precedent legal meaning for wards of court. The founding of Cheadle Hulme School, otherwise known as Manchester Warehousemen and Clerks Orphans Schools, became the first time the expression was used with legal standing in the educational field.
The first major limitation to this came in the U.S. Supreme Court
case West Virginia State Board of Education v. Barnette
(1942), in which the court ruled that students cannot be forced to salute the American flag
. More prominent change came in the 1960s and 1970s in such cases as Tinker v. Des Moines Independent Community School District
(1969), when the Supreme Court decided that "conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech
." Adult speech is also limited by "time, place and manner" restrictions and therefore such limits do not rely on schools acting in loco parentis.
Many provisions of in loco parentis have been upheld over time. New Jersey v. T.L.O. (1985) upheld the search of lockers and other personal space while on school property as long as the search was deemed reasonable given the circumstances, indicating there is a balancing between the individual's—even a child's—legitimate expectation of privacy and the school's interest in maintaining order and discipline and stating that while acting in loco parentis, school officials are still representatives of the state. In Hazelwood School District v. Kuhlmeier (1987) the Supreme Court similarly ruled that "First Amendment
rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment" and schools may censor school-sponsored publications (such as a school newspaper) if content is "...inconsistent with its basic educational mission." Other student issues, such as school dress codes, have not yet been tested in the Supreme Court.
Private institutions are given significantly more authority over their students than public ones, and are generally allowed to arbitrarily dictate rules. In the Kentucky State Supreme Court
case Gott v. Berea College
, it was upheld that a "college or university may prescribe requirements for admission and rules for the conduct of its students, and one who enters as a student implicitly agrees to conform to such rules of government", while publicly funded institutions could not claim the same ability.
has argued that Tinker’s ruling contradicted “the traditional understanding of the judiciary’s role in relation to public schooling,” and ignored the history of public education (127 S.Ct. 2634). He believed the judiciary’s role to determine whether students have freedom of expression was limited by in loco parentis. He cited Lander v. Seaver (1859) which held that in loco parentis allowed schools to punish student expression that the school or teacher believed contradicted the school’s interests and educational goals. This ruling declared that the only restriction the doctrine imposed were acts of legal malice or acts that caused permanent injury. Neither of these were the case with Tinker.
. However, this was not always the case.
Prior to the 1960s, undergraduates were subject to many restrictions on their private lives. Women were generally subject to curfew
s as early as 10:00, and dormitories were usually entirely one-sex. Some universities expelled students—especially female students—who were somehow "morally" undesirable. Some universities even insisted that male and female student sitting on the same chair have at least two feet on the ground at all times. More importantly, universities saw fit to restrict freedom of speech
on campus, often forbidding organizations dealing with "off-campus" issues from organizing, demonstrating, or otherwise acting on campus. These restrictions were severely criticized by the student movements of the 1960s, and the Free Speech Movement
at the University of California
at Berkeley
formed partly on account of them, inspiring students elsewhere to step up their opposition.
The landmark 1961 case Dixon v. Alabama
was the beginning of the end for in loco parentis in U.S. higher education. The United States Court of Appeals for the Fifth Circuit
found that Alabama State College could not summarily expel students without due process.
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "in the place of a parent"" refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent
Parent
A parent is a caretaker of the offspring in their own species. In humans, a parent is of a child . Children can have one or more parents, but they must have two biological parents. Biological parents consist of the male who sired the child and the female who gave birth to the child...
. Originally derived from English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, it is applied in two separate areas of the law.
First, it allows institutions such as colleges and schools to act in the best interests of the student
Student
A student is a learner, or someone who attends an educational institution. In some nations, the English term is reserved for those who attend university, while a schoolchild under the age of eighteen is called a pupil in English...
s as they see fit, although not allowing what would be considered violations of the students' civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
.
Second, this doctrine can provide a non-biological parent to be given the legal rights and responsibilities of a biological parent if they have held themselves out as the parent.
The in loco parentis doctrine is distinct from the doctrine of parens patriae
Parens patriae
Parens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...
, the psychological parent doctrine, and adoption. In the United States, the parental liberty doctrine imposes constraints upon the operation of the in loco parentis doctrine.
Primary and secondary education
Cheadle Hulme SchoolCheadle Hulme School
Cheadle Hulme School is an independent day school in Cheadle Hulme, Stockport, England for boys and girls aged 4–18 years old. It was formed as The Manchester Warehousemen and Clerks' Orphan Schools in 1855 and is a member of the Headmasters' and Headmistresses' Conference.- History :In the early...
, founded in Manchester, England, in 1855; adopted in loco parentis as its motto, well before the world's first Public Education Act of 1870. The school was established to educate and care for orphans and children of distressed parents; during times when the average longevity of Manchester factory workers was twenty years old.
In loco parentis had only precedent legal meaning for wards of court. The founding of Cheadle Hulme School, otherwise known as Manchester Warehousemen and Clerks Orphans Schools, became the first time the expression was used with legal standing in the educational field.
The first major limitation to this came in the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case West Virginia State Board of Education v. Barnette
West Virginia State Board of Education v. Barnette
West Virginia State Board of Education v. Barnette, 319 U.S. 624 , is a decision by the Supreme Court of the United States that held that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the...
(1942), in which the court ruled that students cannot be forced to salute the American flag
Flag of the United States
The national flag of the United States of America consists of thirteen equal horizontal stripes of red alternating with white, with a blue rectangle in the canton bearing fifty small, white, five-pointed stars arranged in nine offset horizontal rows of six stars alternating with rows...
. More prominent change came in the 1960s and 1970s in such cases as Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District, was a decision by the United States Supreme Court that defined the constitutional rights of students in U.S. public schools...
(1969), when the Supreme Court decided that "conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
." Adult speech is also limited by "time, place and manner" restrictions and therefore such limits do not rely on schools acting in loco parentis.
Many provisions of in loco parentis have been upheld over time. New Jersey v. T.L.O. (1985) upheld the search of lockers and other personal space while on school property as long as the search was deemed reasonable given the circumstances, indicating there is a balancing between the individual's—even a child's—legitimate expectation of privacy and the school's interest in maintaining order and discipline and stating that while acting in loco parentis, school officials are still representatives of the state. In Hazelwood School District v. Kuhlmeier (1987) the Supreme Court similarly ruled that "First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment" and schools may censor school-sponsored publications (such as a school newspaper) if content is "...inconsistent with its basic educational mission." Other student issues, such as school dress codes, have not yet been tested in the Supreme Court.
Private institutions are given significantly more authority over their students than public ones, and are generally allowed to arbitrarily dictate rules. In the Kentucky State Supreme Court
Kentucky Supreme Court
The Kentucky Supreme Court was created by a 1975 constitutional amendment and is the state supreme court of the commonwealth of Kentucky. Prior to that the Kentucky Court of Appeals was the only appellate court in Kentucky...
case Gott v. Berea College
Gott v. Berea College
Gott v. Berea College was a case decided by the Court of Appeals of Kentucky.-Facts:A restaurant owned by Gott in Berea across the road from Berea College was frequented by students of the college...
, it was upheld that a "college or university may prescribe requirements for admission and rules for the conduct of its students, and one who enters as a student implicitly agrees to conform to such rules of government", while publicly funded institutions could not claim the same ability.
Criticism of the Tinker doctrine by Justice Clarence Thomas
Justice Clarence ThomasClarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
has argued that Tinker’s ruling contradicted “the traditional understanding of the judiciary’s role in relation to public schooling,” and ignored the history of public education (127 S.Ct. 2634). He believed the judiciary’s role to determine whether students have freedom of expression was limited by in loco parentis. He cited Lander v. Seaver (1859) which held that in loco parentis allowed schools to punish student expression that the school or teacher believed contradicted the school’s interests and educational goals. This ruling declared that the only restriction the doctrine imposed were acts of legal malice or acts that caused permanent injury. Neither of these were the case with Tinker.
Higher education
Though in loco parentis continues to apply to primary and secondary education in the U.S., application of the concept has largely disappeared in higher educationHigher education
Higher, post-secondary, tertiary, or third level education refers to the stage of learning that occurs at universities, academies, colleges, seminaries, and institutes of technology...
. However, this was not always the case.
Prior to the 1960s, undergraduates were subject to many restrictions on their private lives. Women were generally subject to curfew
Curfew
A curfew is an order specifying a time after which certain regulations apply. Examples:# An order by a government for certain persons to return home daily before a certain time...
s as early as 10:00, and dormitories were usually entirely one-sex. Some universities expelled students—especially female students—who were somehow "morally" undesirable. Some universities even insisted that male and female student sitting on the same chair have at least two feet on the ground at all times. More importantly, universities saw fit to restrict freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
on campus, often forbidding organizations dealing with "off-campus" issues from organizing, demonstrating, or otherwise acting on campus. These restrictions were severely criticized by the student movements of the 1960s, and the Free Speech Movement
Free Speech Movement
The Free Speech Movement was a student protest which took place during the 1964–1965 academic year on the campus of the University of California, Berkeley under the informal leadership of students Mario Savio, Brian Turner, Bettina Aptheker, Steve Weissman, Art Goldberg, Jackie Goldberg, and...
at the University of California
University of California
The University of California is a public university system in the U.S. state of California. Under the California Master Plan for Higher Education, the University of California is a part of the state's three-tier public higher education system, which also includes the California State University...
at Berkeley
Berkeley, California
Berkeley is a city on the east shore of the San Francisco Bay in Northern California, United States. Its neighbors to the south are the cities of Oakland and Emeryville. To the north is the city of Albany and the unincorporated community of Kensington...
formed partly on account of them, inspiring students elsewhere to step up their opposition.
The landmark 1961 case Dixon v. Alabama
Dixon v. Alabama
Dixon v. Alabama, 294 F. 2d 150 was a landmark 1961 U.S. federal court decision that spelled the end of the doctrine that colleges and universities could act in loco parentis to discipline or expel their students...
was the beginning of the end for in loco parentis in U.S. higher education. The United States Court of Appeals for the Fifth Circuit
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
found that Alabama State College could not summarily expel students without due process.