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Wednesday
Apr112018

The Apparatus of Responsibility: Post-In Loco Parentis American University World  

The late legal philosopher Ronald Dworkin wrote in his book, Justice for Hedgehogs, that “[r]esponsibility is an indispensable concept across our intellectual life.” Dworkin reasoned that there are two forms of responsibility, one concerning personal virtue and the other related to liability. Though distinct, Dworkin and other leading legal philosophers have argued the need to not ignore either when applying legal and political interpretations. Dworkin, like many others, believed that morality has a place in our legal and political framework. Though people differ on many bracing issues of the day, take to heart the need to apply a moral lens. In this case, applying a moral lens to higher education in terms of that personal virtue of responsibility in a post-in loco parentis (in the place of a parent) world.

In American colleges and universities today, students are suffering. This is not merely an alarmist quip about the harsh realities of life when in fact problems are not as bad as they would seem. Indeed, they could be worse, but people ought not to wait for things to get worse before taking actual notice to problems. Take one example, suicide. The CDC has reported that from 1999 through 2014 the suicide rate, for all ages (10-74) and for males and females, has increased by 24%. While suicides committed by college students are significantly lower than the general population, there has been a growing trend called “cluster suicides” on campuses which is when one suicide occurs and others follow. Yet, according to a CBS News report, most public colleges do not even track suicides. But this is more than just about suicides, as disheartening as it is, but about the responsibility of college students, parents, and the institutions themselves. It is about moral responsibility when it comes to drug and alcohol use, rape and sexual assault, and other immoral behaviors or unfortunate events that often cascade and affecting other individuals, including parents of other students and the colleges and universities who are or are not responsible.

In loco parentis, a common law doctrine whose origins can be a bit murky, is generally attributed to the English judge Sir William Blackstone who in 1769 wrote, in what is known as Blackstone’s commentaries, “[The father] may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge…” In loco parentis would be adapted to the then more autonomous, early American universities as the new nation adopted its English Common Law principles along with its new found liberties via rebellion against the British Empire and the creation of the nation’s newly formulated constitution. It was clearly understood by the courts that colleges by right had the authority to discipline, tutor, and dictate the lives of their students pre-1960. Several cases illuminate the views of the nation’s courts concerning students and their respective colleges.

In People v. Wheaton College (1866), a student at Wheaton College, Edwin Pratt, joined a secret society and was suspended by the college for doing so. The Supreme Court of Illinois ruled in favor of the college finding that, “discretionary power has been given [to college authorities] to regulate the discipline of their college in such a manner they deem proper,… .

In North v. Trustees of University of Illinois (1891), the University of Illinois expelled a student for refusing to attend chapel and again the Supreme Court of Illinois ruled in favor of the college stating, “By voluntarily entering the university, or being placed there by those having the right to control him, he necessarily surrenders very many of his individual rights.”

This common law practice remained until the 1960s court case, Dixon v. Alabama State Board of Education (5th Cir. 1961), where the 5th Circuit Court of Appeals ruled in favor of Black students who had been expelled by Alabama State College for participating in civil rights demonstrations. The 5th Circuit ruled that public university students were obligated a 14th amendment right to due process, therefore in context, a prior notice and hearing concerning expulsion. Dixon signaled the end of in loco parentis. The responsibility of moral discipline by higher education ironically became sterilized in the process of newer, nontraditional liberties recognized to adult college students. How a practice that lasted decades ended so matter of factly without consideration of making increment adjustments is worth further review. By losing the parental authority of in loco parentis, the balance and clarity of responsibility has tilted.

Since the Dixon decision, new programs like FERPA and HIPPA sought to serve and protect students and their parents in various capacities in hope of filling the hole of in loco parentis. Nevertheless, parents have felt the need to know more in situations where their children, even as young adults, are facing dangerous or problematic issues. A revised, responsible doctrine of in loco parentis could be the solution. But should colleges handover information about their students’ private lives when they harm themselves or others? What is harm? What about adulthood? What are the responsibilities and consequences concerning actions as an adult? So many questions need to be asked and reconsidered before making long-term decisions. What is certain, however, is that college students and the institutions that serve them have a responsibility of great importance.   

This post was authored by Edward "Kyle" Richey, a masters student in Higher Education Administration at The University of Texas at San Antonio. 

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Reader Comments (4)

Handling health-related issues are very tricky. I believe there needs to be further conversations with many different stakeholders in order to find the best solutions for students. I do believe that if students could potentially harm themselves, there needs to be a point in which a family member or the student's emergency contact should be contacted and informed. However, this process will need to make sure that students' rights are not violated.

April 27, 2018 | Unregistered CommenterNelly Reyes

I find that the lack of parent involvement and assigning of responsibility to the students themselves is an ideal situation. If parents are wanting to be involved or need to provide assistance then they should be required to work with their student to communicate what the student needs or gain access to certain information. Since the students in college are typically at the age where they are considered legal adults it is important for universities to respect this and work with students to help them develop in to responsible adults. I do believe that their need to be some protections and safety precautions to ensure student safety though. When students are expressing harmful behavior or are not in the right mind to properly care for themselves then their needs to be some way to notify or seek assistance from family or outside resources.

April 27, 2018 | Unregistered CommenterCarlos A Velez

Managing physical and mental health of students is a challenging issue, and the interaction between liability and morality is particularly thorny issue for administrators to navigate. I tend to agree that, for better or worse, students do need to be treated as adults and have their rights to privacy protected, but there is also room for colleges to establish robust support systems for students who are might be struggling with depression or suicidal thoughts. Given that administrators may not be able to universally protect students, preventative measures (i.e. offering robust, effective mental health services) may be one of the better methods of response.

I always appreciate your entries Kyle. You are a very profound person and I can always guarantee each thing you write stimulates intellectual electricity in my brain which leads to good conversation between us. I really enjoy your blog seeing as I am a huge advocate for physical and mental health. I think we need to give our students as much freedom as possible but also make sure that they are trained in figuring out how to navigate tricky situations like how to make sure you are getting the best care from the on campus clinic and hiring staff that makes sure that they have done the absolute most for each student that crosses their doors. That is as much as I believe a university should have a say in students life. If we do not treat students like adults they will graduate with no knowledge of how to traverse clinics and insurance and other dry topics.

May 8, 2018 | Unregistered CommenterMarcos Villarreal

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