In loco parentis

The term "in loco parentis", Latin for "in the place of a parent" or "instead of a parent,"cite web |url=http://dictionary.law.com/default2.asp?typed=in+loco+parentis&type=1&submit1.x=86&submit1.y=20&submit1=Look+up |title=Law.com Law Dictionary - "in loco parentis" |accessdate=2008-09-03 |work= |publisher=Law.com |date= ] 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 British 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 students 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. [ [http://jurist.law.pitt.edu/paperchase/2007/02/utah-high-court-denies-parental-rights.php An example of family law "in loco parentis"] ]

In United States law

Courts in the United States primarily apply the doctrine of "in loco parentis" to educational institutions.

Primary and secondary education

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."

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, indicating that students are not afforded the same rights as adults in other settings 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.

Criticism of the Tinker doctrine by Justice Clarence Thomas

Justice Clarence Thomas 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 (1986) 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 education. 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 curfews 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 a male and female student sitting on the same chair have at least three 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. [ cite book |title=The Movement and the Sixties |last=Anderson |first=Terry H. |authorlink= |year=1996|publisher= Oxford University Press |location=New York|isbn=9780195104578|pages= ]

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.cite journal |last=Hoover |first=Eric |year=2008 |month=September | day=5 |title=‘Animal House’ at 30: O Bluto, Where Art Thou? |journal=The Chronicle of Higher Education |volume=55 |issue=2 |pages=34–35 ]

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