Below is the abstract for “In Loco Parentis, the First Amendment, and Parental Rights—Can they Coexist in Public Schools?,” available for download on SSRN.
Public education across the United States is in disarray. Students are suffering as a result. Most of the problem stems from the fact that those in authority—namely the parents and the state—do not agree on the basics. The disagreement is resulting in a plethora of lawsuits being filed by parents and students challenging school policies relating to ideological curriculum, hiding gender choices, and censorship on matters of public concern. At the core of all these lawsuits—and the larger debate taking place throughout the United States in school board meetings, state legislatures, and the public square—is the simple question of what happens, from a legal perspective, when a parent drops their child off at a public school. Does the school stand in the place of the parent, and therefore become akin to a private actor employed by the parent? Or are public schools pure agents of the state, acting in their own educational interests and constrained by the Constitution whenever they act? Is there some middle ground between these two positions, such that they can peacefully coexist and complement one another? The Supreme Court seems confused about the proper framework for addressing these issues, and the conservative Justices are even divided.
This Article seeks to answer these questions by reexamining the familiar common law doctrine known as in loco parentis and the recent Supreme Court jurisprudence on the topic. Ultimately, the Article proposes a framework whereby in loco parentis and the constitutional rights of students and parents can coexist at public schools. First, courts must apply in loco parentis at public schools. The doctrine of in loco parentis recognizes the fundamental principle of American law that the educational right and duty originates in and lies exclusively with parents, and the state can only educate children once parents voluntarily delegate their educational right to the state. Second, given the educational changes occurring over the last 150 years, courts should construe the delegation of authority by the parent to the state much more narrowly, such that the First Amendment and parental rights constrain the state in public education wherever parents are not deemed to have delegated their authority. The Article argues that courts should never construe parents to have delegated their authority over matters that involve the Free Exercise Clause or “core” First Amendment Speech and urges courts to reassert basic parental rights in education, including the right to review curriculum, object to teachers, and opt out of certain curriculum.