Literal MeaningIn place of the parent.
The term refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent. The maxim is applied to two separate areas of the law. One, the term allows educational institutions such as colleges and schools to act in the best interests of the students as they see fit, provided, prohibiting such acts that violates a student’s civil liberties. Two, this doctrine can provide a non-biological parent, the legal rights and responsibilities of a biological parent if they have held themselves out as the parent, without going through the adoption process. A foster parent, a county custodial agency or a boarding school which is assuming the parental obligations for the minor, including protecting his/her rights, may be referred to as being in loco parentis. When minor children are entrusted by parents to a school, the parents delegate to the school certain responsibilities for their children, and the school has certain liabilities. In effect, the school and the teachers take some of the responsibility and some of the authority of the parents. The child’s physical safety is entrusted to the school and to the teacher, who thus become legally liable for the child’s safety, insofar as negligence can be proved against them.
This doctrine, however, became a roadblock for students studying in educational institutions as it allowed schools to place restrictions on students’ behaviours, both in school and out, and allowed them to punish students in a parent’s stead. Such restrictions included sex-segregated dormitories, curfews imposed differently on women than men, and the expulsion of female students who were “morally undesirable.” Colleges and universities also sought to restrict students’ right to free speech, forbidding student organizations from demonstrating on campus.
In loco parentis is a Latin term which means “in the place of parent” and is originally derived from the English common law. In loco parentis had only precedent legal meaning for wards of court. The founding of Cheadle Hulme School, otherwise known as Manchester Warehousemen and Clerks Orphans Schools, became the first time the expression was used with legal standing in the educational field. In 1855, the Cheadle Hulme School, originally named The Manchester Warehousemen and Clerks’ Orphan School, was established to care for children who had lost their fathers. Because fathers had sole responsibility for, and control of, their children, these children were considered to be orphans. The school adopted the motto in loco parentis to describe its dedication to caring for and educating the children in their custody.
A grandparent who has an ongoing responsibility for raising a grandchild may take leave if the child has a serious health condition.
A same-sex partner, who will co-parent a biological child, may take leave for the child’s birth, and for bonding with the child.
In Chartier vs. Chartier, following factors were considered by the court in determining whether an in loco parentis relationship exists:
- The age of the child
- The degree to which the child is dependent, physically and/or financially, on the individual
- The amount of financial support provided to the child by the individual
- The extent to which the individual performs duties commonly associated with being a parent.
In Lander vs. Seaver, it was held that in loco parentis allows schools to punish student expression that the school or teacher believes contradicts the school’s interests and educational goals.
However, the court turned its viewpoint in the case of West Virginia State Board of Education v. Barnette, in which the court ruled that students cannot be forced to salute the American flag.
In Tinker vs. Des Moines Independent Community School District , 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.” 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 Morse vs. Frederick Justice Clarence Thomas, 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 (127 S.Ct. 2634). He believed the judiciary’s role to determine whether students have freedom of expression was limited by in loco parentis. 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.
Edited by Vigneshwar Ramasubramania
Approved & Published – Sakshi RajeReference:  U.S Legal, https://definitions.uslegal.com/i/in-loco-parentis/ (20/05/19; 15:32)  Supra Note 2.  A person, usually a child or an adult of unsound mind, placed in the care of a guardian by order of a court, and who is directly subject to the authority of that court.  Legal Dictionary, https://legaldictionary.net/in-loco-parentis/ (20/05/19; 15:40)  Chartier v. Chartier, 1999 1 S.C.R. 242  Lander v. Seaver, 32 Vt. 113, 115, 118, 121, 123 (1859).  West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)  Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)  Morse v. Frederick, 551 U.S. 393 (2007)