The term ''in loco parentis'',
Latin
Latin ( or ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken by the Latins (Italic tribe), Latins in Latium (now known as Lazio), the lower Tiber area aroun ...
for "in the place of a parent",
refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a
parent
A parent is either the progenitor of a child or, in humans, it can refer to a caregiver or legal guardian, generally called an adoptive parent or step-parent. Parents who are progenitors are First-degree relative, first-degree relatives and have ...
.
Originally derived from English
common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
, the doctrine is applied in two separate areas of the law. First, it grants educational institutions such as colleges and schools discretion to act in the best interests of their
student
A student is a person enrolled in a school or other educational institution, or more generally, a person who takes a special interest in a subject.
In the United Kingdom and most The Commonwealth, commonwealth countries, a "student" attends ...
s, although not allowing what would be considered violations of the students'
civil liberties
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties of ...
. Second, this doctrine may allow a non-biological parent to exercise the legal rights and responsibilities of a biological parent if they have held themselves out as the parent.
The ''in loco parentis'' doctrine is distinct from the doctrine of ''
parens patriae
''Parens patriae'' is Latin for "father of the nation" (lit., "father of one's country"). In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to ...
'', the psychological parent doctrine, and
adoption
Adoption is a process whereby a person assumes the parenting of another, usually a child, from that person's biological or legal parent or parents. Legal adoptions permanently transfer all rights and responsibilities, along with filiation, fro ...
.
[In Loco Parentis – Quaqua Society](_blank)
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Situation specific
Education
Primary and secondary education
Cheadle Hulme School, originally known as the Manchester Warehousemen and Clerks Orphans Schools, formed in 1855, adopted ''in loco parentis'' as its motto, well before the world's first public education act, the Elementary Education Act 1870
The Elementary Education Act 1870 ( 33 & 34 Vict. c. 75), commonly known as Forster's Education Act, set the framework for schooling of all children between the ages of 5 and 12 in England and Wales. It established local education authorities wit ...
( 33 & 34 Vict. c. 75).[''Independent Schools Yearbook 2012–2013'', A&C Black, 2013, pp. 81–82]
The first major limitation to this came in the U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...
case ''West Virginia State Board of Education v. Barnette
''West Virginia State Board of Education v. Barnette'', 319 U.S. 624 (1943), is a landmark decision by the United States Supreme Court holding that the First Amendment protects students from being forced to salute the American flag or say the P ...
'' (1943), in which the court ruled that students cannot be forced to salute the American flag
The national flag of the United States, often referred to as the American flag or the U.S. flag, consists of thirteen horizontal Bar (heraldry), stripes, Variation of the field, alternating red and white, with a blue rectangle in the Canton ( ...
. More prominent change came in the 1960s and 1970s in such cases as '' Tinker v. Des Moines Independent Community School District'' (1969), when the Supreme Court decided that "conduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The rights, right to freedom of expression has been r ...
." Adult speech is also limited by "time, place and manner" restrictions and therefore such limits do not rely on schools acting ''in loco parentis''.
In '' Tinker v. Des Moines Independent Community School District'' (1969), the Supreme Court held that for school officials to justify censoring speech, they "must be able to show that heir
Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Offi ...
action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," allowing schools to forbid conduct that would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." The court found that the actions of the Tinkers in wearing armbands did not cause disruption and held that their activity represented constitutionally protected symbolic speech.
In '' New Jersey v. T. L. O.'' (1985) Justice White wrote:
The case upheld the search of a purse while on public school property based upon reasonable suspicion, indicating there is a balancing between the student's legitimate expectation of privacy
In United States constitutional law, reasonable expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the U.S. Constitution. It is related to, ...
and the public school's interest in maintaining order and discipline. However, in '' Hazelwood School District v. Kuhlmeier'' (1987) the Supreme Court ruled that "First Amendment
First most commonly refers to:
* First, the ordinal form of the number 1
First or 1st may also refer to:
Acronyms
* Faint Images of the Radio Sky at Twenty-Centimeters, an astronomical survey carried out by the Very Large Array
* Far Infrared a ...
rights of students in public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment" and schools may censor school-sponsored publications (such as a school newspaper) if content is "...inconsistent with its basic educational mission." Other student issues such as school dress codes along with locker, cell phone, and personal laptop computer searches by public school officials have not yet been tested in the Supreme Court.
Private institutions are given significantly more authority over their students than public ones, and are generally allowed to arbitrarily dictate rules. In the Kentucky State Supreme Court case '' Gott v. Berea College'' (1913), it was upheld that a "college or university may prescribe requirements for admission and rules for the conduct of its students, and one who enters as a student implicitly agrees to conform to such rules of government", while publicly funded institutions could not claim the same ability.
In '' Morse v. Frederick'' (2007) Justice Clarence Thomas
Clarence Thomas (born June 23, 1948) is an American lawyer and jurist who has served since 1991 as an associate justice of the Supreme Court of the United States. President George H. W. Bush nominated him to succeed Thurgood Marshall. Afte ...
, concurring with the majority, argued that ''Tinker's'' ruling contradicted "the traditional understanding of the judiciary's role in relation to public schooling," and ignored the history of public education. He believed the judiciary's role to determine whether students have freedom of expression was limited by ''in loco parentis''. He cited '' Lander v. Seaver'' (1859), which held that ''in loco parentis'' allowed schools to punish student expression that the school or teacher believed contradicted the school's interests and educational goals. This ruling declared that the only restriction the doctrine imposed were acts of legal malice or acts that caused permanent injury. Neither of these were the case with ''Tinker''.
Higher education
Though ''in loco parentis'' continues to apply to primary and secondary education in the U.S., application of the concept has largely disappeared in higher education
Tertiary education (higher education, or post-secondary education) is the educational level following the completion of secondary education.
The World Bank defines tertiary education as including universities, colleges, and vocational schools ...
. This was not always the case.
Prior to the 1960s, undergraduates were subject to many restrictions on their private lives. Women were generally subject to curfew
A curfew is an order that imposes certain regulations during specified hours. Typically, curfews order all people affected by them to remain indoors during the evening and nighttime hours. Such an order is most often issued by public authorit ...
s as early as 10 pm, and dormitories were sex-segregated. Some universities expelled students—especially female students—who were deemed "morally" undesirable. More importantly, universities saw fit to restrict freedom of speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The rights, right to freedom of expression has been r ...
, on campus, often forbidding organizations out of favor or with different views from speaking, organizing, demonstrating, or otherwise acting on campus. These restrictions were severely criticized by the student movements of the 1960s, and the Free Speech Movement at the University of California, Berkeley
The University of California, Berkeley (UC Berkeley, Berkeley, Cal, or California), is a Public university, public Land-grant university, land-grant research university in Berkeley, California, United States. Founded in 1868 and named after t ...
formed partly on account of them, inspiring students elsewhere to step up their opposition.
The landmark 1961 case '' Dixon v. Alabama'' was the beginning of the end for ''in loco parentis'' in U.S. higher education. The United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is one of the 13 United States courts of appeals. It has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
...
found that Alabama State College could not summarily expel students without due process. However, that still does not prevent students who exercise their rights from being subject to legal action for violation of institutional rules.[
]
Hospital and nursing homes
Caregivers and management have the duty of care in place of the parent.
In the absence of parents, another relative or person ''in loco parentis'' can give consent for children.
For children in care, the local authority usually has full parental rights and the director of social services or deputy needs to sign the consent form. If the child is in voluntary care, the parents still act as guardians and their consent should be obtained.
In law, parents have responsibility for their child. Staff have an ethical duty to ensure that the care of the child is equally good no matter the educational attainments of the parents. On rare occasions, however, physician is faced with parents whose level of literacy or understanding prevents them from properly grasping what is happening. Sometimes other members of the family may be able to act ''in loco parentis'', and it is reassuring to have supportive grandparents who can make rational suggestions in the best interests of all concerned. Occasionally, it may be necessary to formalize this arrangement. If there is any doubt about who carries parental responsibility, or competence, the child-safeguarding team must be involved.[Rennie, J. M., Laing, I. A., Piyasena, C., & McHaffie, H. E. (2012). Counselling and support for parents and families. In Rennie and Roberton's textbook of Neonatology (pp. 95–101). essay, Churchill Livingstone Elsevier.
]
Country specific
India
Indian law has provision for ''in loco parentis''. Under Indian law non-human entities such as animals, trusts (including those established for estate planning), charitable organizations, corporations, managing bodies, etc. and several other non-human entitles have been given the status of "legal person
In law, a legal person is any person or legal entity that can do the things a human person is usually able to do in law – such as enter into contracts, lawsuit, sue and be sued, ownership, own property, and so on. The reason for the term "''le ...
" with legal rights and duties, such as to sue and be sued, to own and transfer the property, to pay taxes, etc. In court cases regarding animals, the animals have the status of ''"legal person"'' and humans have the legal duty to act as "loco parentis" towards animals welfare like a parent has towards the minor children. In a case of cow-smuggling, the Punjab and Haryana High Court
Punjab and Haryana High Court is the common High Court for the Indian states of Punjab and Haryana and the Union Territory of Chandigarh based in Chandigarh, India. Sanctioned strength of Judges of this High Court is 85 consisting of 64 Pe ...
mandated that "entire animal kingdom including avian and aquatic" species has a "distinct legal persona with corresponding rights, duties, and liabilities of a living person" and humans are ''"loco parentis"'' while laying out the norms for animal welfare, veterinary treatment, fodder and shelter, e.g. animal drawn carriages must not have more than four humans, and load carrying animals must not be loaded beyond the specified limits and those limits must be halved when animals have to carry the load up a slope.[Birds to holy rivers: A list of everything India considers “legal persons”]
Quartz (publication)
''Quartz'' is an American English language news website owned by Redbrick, a Canadian software firm. Focused on international business news, it was founded in 2012 by Atlantic Media in New York City as a "digitally native news outlet for busi ...
, September 2019.
See also
* Locum
A locum, or locum tenens, is a person who temporarily fulfills the duties of another; the term is especially used for physicians or clergy. For example, a ''locum tenens physician'' is a physician who works in the place of the regular physician. ...
* Next friend
In common law, a next friend (Law French ''prochein ami'') is a person who represents another person who is under age, or, because of disability or otherwise, is unable to maintain a suit on his or her own behalf and who does not have a legal gua ...
* Babysitting
Babysitting is temporarily caring for a child. Babysitting can be a paid job for all ages; however, it is best known as a temporary activity for early teenagers who are not yet eligible for employment in the general economy. It provides auto ...
References
External links
Conrath, Richard Cranmer. In Loco Parentis: ''Recent Developments in this Legal Doctrine as Applied to the University-Student Relationship in the United States of America, 1965–1975.''
– doctoral dissertation submitted to the Kent State University Graduate School of Education, 1976, summarizing the origins and development of the doctrine from ancient times to the 1970s.
{{DEFAULTSORT:In Loco Parentis
Latin legal terminology
Youth rights
Legal doctrines and principles