Letting the Legislature Decide: Why the Court's Use of in Loco Parentis Ought to Be Praised, Not Condemned

I. INTRODUCTION In 1991, school athletes in Oregon were required to submit to random, involuntary drug tests before they were allowed to participate in school-sponsored sporting events.1 In 2002, Joseph Frederick received a ten-day suspension for unfurling a 14-foot banner with the inscription "BONG HiTS 4 JESUS" at a schoolsponsored event.2 And in 2003, April Redding (who was thirteen at the time) was ordered to strip down to her underwear because she was suspected of possessing prescription-strength Ibuprofen pills.3 At first glance, these cases appear extreme, but their underlying concerns are not only simple, but commonplace: teachers and school administrators across the nation are asked to deal with drug use, potentially offensive speech, and drug possession on a daily basis, and surely they do not need to be told by the United States Supreme Court that they cannot, for instance, conduct strip searches. And yet, the Supreme Court was required to determine, in each of these cases, whether school administrators were acting within the scope of their authority, which should raise the following question: How has the concept of "authority" in public schools been obscured to the point where an administrator actually thought that he had the authority to order a strip search of a student? In a recent law review article, Professor Susan Stuart has argued that the Supreme Court's continued reliance upon the common law doctrine of in loco parentis (meaning "in the place of a parent") is to blame for the confusion surrounding our understanding of "authority" in public schools, and forcefully declared that "in loco parentis 'would be enormously improved by death.'"4 Stuart's article presents two main arguments in support of this claim. First, she argues that the doctrine of in loco parentis, as originally articulated by Blackstone, was incompletely (and therefore improperly) adopted by American courts.5 Second, she contends that, because the doctrine is "anachronistic" within the context of modern education, it should no longer be applied.6 In place of in loco parentis, Stuart suggests that courts follow the advice of educational experts and adopt "objective norms of educational professionalism" because such norms would govern the relationships between students and school administrators in a more "predictable and noncontroversial fashion" than in loco parentis.7 This Comment attempts to defend the Court's continued reliance on in loco parentis against Stuart's assault by arguing that not only do Stuart's criticisms fail to provide sufficient reason for the Court to reject the doctrine outright, but furthermore her proposed solution is one that should be implemented by the legislature rather than the judiciary. This Comment will proceed as follows. Part II will briefly set forth the historical development of in loco parentis and how it came to be adopted by the United States' judiciary. It will then describe how, within the context of student speech and student search cases, the Supreme Court has relied upon the doctrine in its struggle to define the contours of administrative authority in public schools. Part III will give a detailed explanation of Professor Stuart's criticisms of in loco parentis, its adoption by the Supreme Court, and its application within the context of public education. Finally, Part IV will argue that Stuart's criticisms ultimately fail to provide sufficient grounds for an outright rejection of in loco parentis, and will contend that society, through its duly appointed representatives, is in a much better position to clarify the concept of "authority" within our educational system than the judiciary. Hence the judiciary's refusal to rewrite the concept of in loco parentis sua sponte is an example of judicial restraint that ought to be praised rather than condemned. II. HISTORICAL BACKGROUND AND DEVELOPMENT OF IN LOCO PARENTIS This Part briefly outlines the common law origins of in loco parentis, how it was adopted by U. …