Restorative Justice Liability: School Discipline Reform and the Right to Safe Schools Part II: In Loco Parentis and the Duty to Protect

Abstract

Answering the great questions on the duty to protect students depends largely on how one thinks about the authority of school officials in loco parentis. Liability turns on whether school policies place students at an unreasonable risk--whether the outcomes are reasonable in light of known circumstances. In the litigation and public debate over student safety, many who have never heard the phrase “in loco parentis” have suddenly discovered the need to think about what it means and how it affects the reasonableness assessment. Since the time of Blackstone, the common wisdom has been that school officials are cloaked in a form of parental authority to their students and that this is particularly true in matters relating to conduct and discipline. The common wisdom is accurate insofar as it marks the general terrain of educators to act as “guardian and tutor of children entrusted to [their] care.” Even so, as in loco parentis moves further away from the Blackstone model, its contours have become imprecise and capricious.

Keywords: restorative justice, liability, school discipline, school safety, in loco parentis, duty to protect