Written February 9, 2015, not published and slightly modified here.
In loco parentis, meaning “in the place of a parent,” indicates that an organization or institution can act in a child’s best interest in the absence of the child’s parents. This historic agreement was rooted in English common law and reflected a standard expectation of parents toward schools; schools readily took on the responsibility of absentee parenthood at the primary, secondary and even university levels as part of the educational process. Since the late 1940s, however, the inviolability of this concept has been eroded by civil libertarians seeking to secure constitutional protections and freedoms for students at every level of education. In the 1960s, numerous “adult citizen” rights, such as speech and assembly, were granted to university students through acts of courts and legislatures at both state and federal levels, significantly limiting in loco parentis, nearly ending it. Nonetheless, the concept still survives.
Student-as-child and student-as-citizen generate conflicting forces that are difficult to balance. Here are five perspectives.
One: Universities rarely promote moral restrictions on behavior because they are viewed as illiberal. However, many rules universities must follow require faculty and staff to monitor student behavior and report it to authorities. Such laws and regulations, like the Clery Act and Violence Against Women Act (VAWA), for better or worse, involve moral judgments about students. Is the student considered a child or an adult? Are faculty and staff acting as parents, teachers, confidants or law enforcement? What defines a school? Sexual behavior is, unfortunately, widespread, but the same acts outside the university setting under different circumstances are not always equivalent. Does separating the public square from the campus make sense, or does it cause confusion?
Two: The Family Educational Rights and Privacy Act (FERPA) requires institutions to treat students as adults. Talking to a parent about an 18-year-old student’s academic performance is illegal without written permission, even when the parent is paying. The same rule applies if binge drinking is suspected. However, the Clery Act mandates that if a faculty or staff member discusses a reportedly non-consensual sex act between students, it must be reported to authorities; whether it can legally be shared with a parent remains unclear. Nonconsensual sex, whether caused by a night of drinking or a pathological disregard for anyone’s interests other than the perpetrator’s demand for immediate self-gratification, could easily be a crime such as rape. Rape is a reprehensible crime on or off campus. Yet, universities act as both parents and police, as well as moral and legal authorities, driven by the fear of losing federal funding under the Clery Act, rather than by moral obligation. Does this confuse you as much as it does me?
Three: Intervention in personal decision-making cannot be institutionalized. A brave few insist on trying to communicate the positive benefits of personal moral perspectives that don’t justify criminal irresponsibility. These few believe silence is a form of condoning, but they should be prepared for a wave of criticism. They may be called Neanderthals or accused of defying the First Amendment. Forcing a specific perspective on students is unwise, but sharing experiences through moral viewpoints should be educational. We all have ethical and moral perspectives; recognizing them is essential to teaching and learning. Is this reasonable?
Four: Universities are not special places where the rule of law is suspended, nor should they be areas where morality is considered outside legal bounds. Students should not be treated like children through the tradition of in loco parentis. In Dixon v. Alabama, an argument was made that students should have the same access to due process as any adult citizen. Thai makes sense. However, university employees, by law, must report certain types of misconduct simply because they occur on a university campus. Why isn’t a citizen on the street legally obligated to do the same? What makes the relationship between university employees and students unique, limited to some areas of life and off-limits or subject to required state intervention in others? Is this a legal quagmire, or a solvable puzzle?
Five: The law says students are adults and should have the same rights, responsibilities and privileges that come with being an adult. But are they adults? They are young adults, to be sure, who face a steep learning curve upon leaving home, many of them for the first time in their lives. So, when a fraternity or sorority violates campus rules, they often also break civil laws, yet they are rarely prosecuted as criminals, except in the most serious cases. Violators may be expelled or suspended from school. Maybe. Are we teaching or protecting them? Some would argue that protecting students lessens personal responsibility for actions and adult behavior.
If in loco parentis is harmful to students’ rights, students should be treated like any other adult outside the university. If that happens, the need for student discipline hearings and other extra-legal measures would disappear. Should students be considered real citizens or hybrids?
Faculty and staff are not cops and courts. Students should enter the criminal justice system for violations of the law, or be law-abiding citizens and enjoy the benefits of freedom, like studying.
Have we allowed in loco parentis to become just plain loco?
Walter V. Wendler is the President of West Texas A&M University. His weekly columns, with hyperlinks, are available at https://walterwendler.com/.
