In loco parentis, “in the place of a parent,” suggests that an organization or institution should or can act toward the benefit of a child in the absence of his/her mother or father. This ancient contract was embedded in English common law and a standard expectation of parents towards schools; and schools willingly accepted the burden of absentee parenthood, at the primary, secondary, and even university levels as an integral part of the educational process. Since late in the 1940’s the inviolability of the concept has been chipped away at by civil libertarians to provide constitutional protection and liberty to students at every step of the educational ladder. In the 1960’s, a number of “adult citizen” freedoms, speech and assembly for example, were placed on universities through acts of the courts and legislatures at the state and national level, that limited in loco parentis, almost killing it. But, the concept still breathes.
Student-as-child and student-as-citizen create conflicting forces that are nearly impossible to navigate. Here are five perspectives.
One: A university rarely encourages structure on behavior from a moral perspective, which would be seen as restrictive and illiberal, yet expects faculty members to report all discussions of possible sexual crimes to authorities through covenant. Current law, The Cleary Act, disallows, for better or worse, a faculty member’s respect for a student’s wishes for a confidential consultation. Is the student a child or an adult? Is the faculty member a parent, teacher, confidant, or law enforcement officer? What is a school? Sexual crimes occur to be sure, but the same acts in a non-student environment under different conditions or circumstances are not equal. Does this inconsistency create confusion?
Two: Family Educational Rights and Privacy Act (FERPA) require institutions to treat students as adults; talking to a parent about a student’s academic performance is illegal without written permission, even when the parent is footing the bill. The same concept governs if binge drinking is suspected. However, The Cleary Act mandates that if a faculty member talks to a student about a reportedly non-consensual sex it must be disclosed to authorities, but whether it can legally be shared with a parent is unclear. Rape, whether fueled by a night of drinking, or a pathological indifference to anyone’s interest other than a perpetrators demand for immediate self-gratification, is a felony: Rape is rape, on- or off-campus. Yet, in the face of convoluted logic, universities are accepting responsibility to act as parents and police, moral and legal roles respectively, in fear of losing federal funding in accordance with The Cleary Act. It seems you can have it both ways. Does this baffle you as much as me?
Three: Intervention in personal decision making cannot be institutionalized. And for the stalwart few who insist on trying to communicate the positive benefits of personal moral perspectives that don’t excuse criminal irresponsibility by adults — silence is a condoning force — be prepared for a barrage of criticism. You will be branded a Neanderthal. Brow beating a particular perspective into students is foolishness, but sharing experiences through moral perspective can be educational. We all have one, and it should be shared as a cogent aspect of the teaching/learning process. Is this mysterious?
Four: Universities are not special places where rule of law is suspended and students are treated extra legally, or like children through the tradition of in loco parentis. In the case of Dixon v. Alabama a clear and appropriate argument was made that students should be afforded the same access to due process as any adult citizen. Does this translate to a faculty member being required to report a case of sexual misconduct? Why is a citizen on the street not required by law to do the same? What makes the relationship between the faculty and the student special and limited to some areas of life, and off limits or subject to required state intervention in others? Is this a solvable puzzle?
Five: Students are adults and should be afforded the same rights, responsibilities and privileges thereto appertaining. Not quite. When a fraternity or sorority breaks campus rules, usually they break civil laws too, yet are seldom prosecuted as criminals, except in the most egregious cases, but rather expelled or suspended from school. The protection of students as special status citizens works to break down personal responsibility for actions and undermines the purpose of the university. If in loco parentis is seen as detrimental to the rights of students, it should be eliminated in whole and if that be the case, the need for student discipline hearings and equally extra-legal exercises would vanish.
Faculty and staff are not cops and courts. Students should enter the criminal justice system for violations of law. Or be law abiding citizens and enjoy the benefits of freedom, like studying. Can you have it both ways?
Have we allowed in loco parentis to become just plain loco?