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In Loco Parentis
[Latin, in the place of a parent.] The legal doctrine under which an individual assumes parental rights, duties, and obligations without going through the formalities of legal adoption.
In loco parentis is a legal doctrine describing a relationship similar to that of a parent to a child. It refers to an individual who assumes parental status and responsibilities for another individual, usually a young person, without formally adopting that person. For example, legal guardians are said to stand in loco parentis with respect to their wards, creating a relationship that has special implications for insurance and workers' compensation law.
By far the most common usage of in loco parentis relates to teachers and students. For hundreds of years, the English common-law concept shaped the rights and responsibilities of public school teachers: until the late nineteenth century, their legal authority over students was as broad as that of parents. Changes in U.S. education, concurrent with a broader reading by courts of the rights of students, began bringing the concept into disrepute by the 1960s. Cultural changes, however, brought a resurgence of the doctrine in the twenty-first century.
Taking root in colonial American schools, in loco parentis was an idea derived from English common law. The colonists borrowed it from the English ideal of schools having not only educational but also moral responsibility for students. The idea especially suited the puritanical values of the colonists, and after the American Revolution, it persisted in elementary and high schools, colleges, and universities. The judiciary respected it: like their English counterparts, U.S. courts in the nineteenth century were unwilling to interfere when students brought grievances, particularly in the area of rules, discipline, and expulsion.
In 1866, for instance, one court stated, "A discretionary power has been given, … [and] we have no more authority to interfere than we have to control the domestic discipline of a father in his family" (People ex rel. Pratt v. Wheaton College, 40 Ill. 186). Well into the twentieth century, courts permitted broad authority to schools and showed hostility to the claims of student plaintiffs. In dismissing a claim by a restaurant owner against a college, the Kentucky Supreme Court found that a college's duties under in loco parentis gave it the power to forbid students to patronize the restaurant (Gott v. Berea College, 156 Ky. 376, 161 S.W. 204 ).
Two important shifts in society and law diminished the effect of the doctrine. One was the evolution of educational standards. Beginning in the late 1800s and advancing rapidly during the mid-1900s, the increasing secularization of schools brought an emphasis on practical education over moral instruction. At a slower rate, courts adapted to this change, according greater rights to students than were previously recognized.
The first to benefit were students in higher education, through rulings such as the landmark Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961). In Dixon, the U.S. Court of Appeals for the Fifth Circuit extended due process rights to students at tax-supported colleges, ruling that the Constitution "requires notice and some opportunity for hearing" before students can be expelled for misconduct. After Dixon, courts largely turned to contract law for adjudicating disputes between students and their institutions.
Other changes came as well. Partly in reaction to free speech movements, courts began to recognize that students at public colleges and universities, as well as public secondary schools, were entitled to full enjoyment of their First and Fourth Amendment rights. For example, in ruling that high school students could not be expelled for wearing black armbands to protest the Vietnam War, the U.S. Supreme Court held, in 1969, that students do not "shed their constitutional rights … at the schoolhouse gate" (tinker v. des moines independent community school district 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731). In 1975, the Court held in Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725, that the suspension of high school students for alleged disruptive or disobedient conduct required some sort of notice of charges and a prior hearing.
But the underlying premise of in loco parentis did not disappear completely from public schools. For example, in 1977, the Supreme Court held that the disciplinary paddling of public school students was not a cruel and unusual punishment prohibited by the Eighth Amendment (Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711), and that students who were disciplined in a school setting were not denied due process under the Fourteenth Amendment. Since then, several cases have challenged this ruling, and U.S. district courts have attempted to clarify the rights of students regarding corporal punishment (Hall v. Tawney, 621 F. 2d 607, 613 [4th Cir. 1980]; Garcia v. Miera, 817 F. 2d 650, 653 [10th Cir. 1987]; Neal ex real. Neal v. Fulton County Board of Education 229 F. 3d 1069 [11th Cir. 2000]).
In the 1980s, new issues involving the in loco parentis doctrine arose at public schools, colleges, and universities. The Reagan administration's war on drugs led to the passage of the Drug-Free Schools and Campuses Act of 1989 (Pub.L. 101-226, December 12, 1989, 103 Stat. 1928). The act bans the unlawful use, possession, or distribution of drugs and alcohol by students and employees on school grounds and college campuses. As a result, most campuses began to enforce zero tolerance drug polices. In 1995, the Supreme Court ruled that high schools were permitted to conduct random drug testing of student athletes (Vernonia School District v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564). According to the Court, such testing does not violate the reasonable search and seizure clause of the Fourth Amendment because students in school are under state supervision, and as such, the state (and the school) is responsible for their well-being. The Court extended permissable drug testing to any student who wishes to participate in extracurricular activities in Board of Education, Pottawatomie County v. Earls, 536 U. S. 822, 122 S. Ct. 2559, 153 L. Ed. 2d 735 (2002).
By the 1990s, and into the 2000s, the loco parentis doctrine seemed to be in full force as schools attempted to safeguard students. Many institutions enacted controversial rules governing dress codes and so-called hate speech, all in the name of protecting students. Violence on campuses, however, became a very real threat. In 1994, Congress enacted a federal policy toward weapons on school grounds when it passed the Gun-Free Schools Act of 1994 (Pub. L. 103-382, Title I, § 101, October 20, 1994, 198 Stat. 3907). According to the act, schools are required to expel students who are found in possession of a gun. After the 1999 Columbine, Colorado, shootings, reinforcement of this act escalated, and schools enforced zero tolerance policies toward the possession of any article that may pose a potential threat. As a result, students have been expelled from school for having such items as nail files, plastic knives, and model rockets. Although many students and parents filed lawsuits in protest, most cases were denied since, according to the courts, school authorities have the right to maintain school safety.
Bickel, Robert D., and Peter F. Lake. 1999. The Rights and Responsibilities of Modern Universities: Who Assumes the Risk of College Life? Durham: Carolina Academic Press.
"Corporal Punishment in Schools." 2003. Journal of Adolescent Health 32.
Hirshberg, Philip M. 1994 "The College's Emerging Duty to Supervise Students: In Loco Parentis." Washington University Journal of Urban and Contemporary Law 46 (summer).
Jackson, Brian. 1991. "The Lingering Legacy of In Loco Parentis: An Historical Survey and Proposal for Reform." Vanderbilt Law Review 44 (October).
Lake, Peter F. 2001. "The Special Relationship(s): Between a College and a Student: Law and Policy Ramifications for the Post In Loco Parentis College." Idaho Law Review 37 (summer): 531–55.
——. 1999."The Rise of Duty and the Fall of In Loco Parentis and Other Protective Tort Doctrines in Higher Education Law." Missouri Law Review 64 (winter): 1–2.
Walton, Spring, J. 1992."In Loco Parentis for the 1990s: New Liabilities." Ohio Northern University Law Review 19.