In Loco Parentis

Parents send their child to school to spend the day in the company of educators. This simple everyday act removes their children from the physical control of their parents. While parents do not relinquish their responsibility for their children when the children attend school, parents share some of that responsibility with teachers and administrators. Schools take on some of the responsibilities and exercise some of the prerogatives typically reserved for parents. Over the years, this relationship, referred to as in loco parentis, has been defined and reviewed by the courts, as described in this entry.

Conferring Rights

Sir William Blackstone, in 1769, captured this shared responsibility when he articulated the doctrine of in loco parentis, literally “in the place of the parent.” Blackstone asserted that part of parental authority is delegated to schoolmasters. Pursuant to this commonlaw doctrine, parents, in effect, delegate to schoolmasters the powers of “restraint and correction” that may be necessary to educate their children. Blackstone referred to the schoolmasters who were often the sole individuals responsible for the education of children.

The modern analogy is that of schools and their staffs. Schools assume custody of students and, at the same time, the students are deprived of the protection of their parents. In effect, the schools act in place of the parent or instead of the parent—in loco parentis. This status is legal and not just descriptive. For example an appellate court in New York, in Garcia v. City of New York (1996), held that schools, once they take over physical custody and control of children, effectively take the place of their parents and guardians.

In loco parentis has moved from being primarily a right of restraint and coercion used to discipline students to being a duty of school officials to protect those same students. School personnel have authority over students by virtue of in loco parentis and a concomitant duty to protect those students.

The right of educators to exercise the same degree of control over a student that a parent is privileged to exercise is found in many state laws. For example, California state law (§ 48907) holds that teachers, vice principals, principals, or other certificated employees of school boards are privileged to exercise the same degree of physical control over children that their parent may legally use and are immunized from criminal prosecution or criminal penalties when in the performance of those duties. An appellate court in California, in In re Donaldson (1969), upheld the statute maintaining that school officials stand in loco parentis, allowing the use of moderate force in disciplining students just as parents have the right to use force to gain obedience from their children. Other states, such as Georgia (§ 20–215) and West Virginia (§ 18A-5–1), also have codified in loco parentis, wherein educators have the right to discipline students to the same degree that parents may legally discipline their children.

Defining Duties

A second element of in loco parentis defines a duty that educators owe to their students. Under tort principles of negligence, educators owe students a duty to anticipate foreseeable dangers and to take reasonable steps to protect those students from that danger. To this end, educators owe the same degree of care and supervision to their students that reasonable and prudent parents would employ in the same circumstances for their children.

Under the two elements of in loco parentis, educators have the right to act as parents when controlling students; concomitantly, they have the duty to act like the parent when protecting students from foreseeable harm. While in loco parentis has described a portion of the relationship between educator and student, legal forces other than discipline and duty owed have structured the doctrine. School officials not only act like parents, they also have responsibilities that parents do not have. For instance, educators in public schools must protect the Constitutional rights of students, while parents do not have the same obligation. This leads to the issue of how the courts have balanced the concept of in loco parentis with constitutional obligations.

The U.S. Supreme Court has held that school officials exercise more than parental power over their students. In fact, cases involving school searches and seizures helped to define and shape the current doctrine of in loco parentis. In New Jersey v. T. L. O. (1985), the Supreme Court noted that school officials, in carrying out searches and other disciplinary functions, act as representatives of the state, not merely as surrogates for the parents, and thus cannot claim the parents’ immunity from the requirements of the Fourth Amendment.

The Court did not dissolve the in loco parentis relationship; rather, it encapsulated the relationship. The Court explained that within the special context of search and seizure, school officials functions as representatives of the state. The Court did not declare that school officials act in the place of parents in all situations. This means that the role of school authorities encompasses, but is not restricted to, the functions of parents.

In another search and seizure case, this one involving drug testing of students involved in extracurricular activities, Vernonia School District 47J v. Acton (1995), the Court emphasized that the nature of the power over students is “custodial and tutelary,” permitting a degree of supervision and control that could not be exercised over free adults. The Court pointed out that custodial power over children is that power often associated with parental control over children. A dictionary definition of custodian refers to a keeper or guardian. Tutelary means having the position of guardian or protector of a person, place, or thing. Both definitions, custodian, one who exercises custodial power, and tutelary, a guardian, encompass the meaning of in loco parentis. Whether the relationship is described as custodial and tutelary or in loco parentis, it is clear that educators have the authority to act in place of the parents when disciplining and protecting the students in their care.

Todd A. DeMitchell

See also Child Protection; Common Law; Negligence; New Jersey v. T. L. O.; Vernonia School District 47J v. Acton

Further Readings

  • DeMitchell, T. A. (2007). Negligence: What principals need to know about avoiding liability. Lanham, MD: Rowman & Littlefield Education. 
  • Frels, K. (2000). Balancing students’ rights and schools’ responsibility. Houston Law Review, 37, 117–125. 

Legal Citations

  • California Education Code, § 48907. 
  • Garcia v. City of New York, 646 N.Y.S. 2d 508 (N.Y. App. Div. 1996). 
  • Georgia Code Annotated, § 20–215. 
  • In re Donaldson, 75 Cal. Rptr. 220 (Cal. Ct. App. 1969). 
  • New Jersey v. T. L. O., 469 U.S. 325 (1985). 
  • Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). 
  • West Virginia Code, § 18A-5–1.