48 Pages Posted: 6 Feb 2010 Last revised: 30 Jun 2010
Date Written: February 5, 2010
In loco parentis is a common law doctrine that has been used to characterize the on-campus relationship between a school and its students, but it has led to abuse. Although waning in higher education, the doctrine is experiencing a resurgence in elementary and secondary schools. As originally conceived, the concept was used primarily as the justification for and defense of student disciplinary actions - the school stood in the shoes of the parent and had the authority to discipline, almost at will. However, the doctrine never seemed to have a corollary in a school’s responsibility for the safety of students. Now, in loco parentis is being re-energized to excuse violating student rights. This has arisen particularly with degrading treatment in matters of search and seizure, but with little or no concomitant recognition of any responsibility to protect students from equally degrading treatment occasioned by sexual harassment and bullying. This Article will discuss why this doctrine is being revived and why that revival is misguided. Part of the blame lies with courts and schools in their inability to articulate some other, more modern, standard to justify school disciplinary policies. However, a larger portion of the blame lies with a careless political process that is tasking schools with more than just an educational function and with an equally careless judiciary that believes “in loco parentis” means “it’s none of our business.” Instead, education professionals can and should be exploring an institutional model of the doctrine in relation to a school’s treatment of and duties toward students’ civil rights.
Keywords: In Loco Parentis, Redding,Student Search, Drug Search, Student Rights, Public Schools, Student Discipline, Student Speech
Suggested Citation: Suggested Citation
Stuart, Susan, In Loco Parentis in the Public Schools: Abused, Confused and in Need of Change (February 5, 2010). University of Cincinnati Law Review, Forthcoming; Valparaiso University Legal Studies Research Paper No. 10-03. Available at SSRN: https://ssrn.com/abstract=1548675