Welcome to the fun-free university: the return of in loco parentis is killing student freedom

Reason, Oct, 2004 by David Weigel

IN APRIL 1968, student activists at Columbia University schemed to take over the dean's office as a protest against the Vietnam War and plans to build a new gym. More than 700 students were arrested, and the uprising won national attention. But the school's buttoned-up administrators hadn't wanted to involve the police, and the rioters eventually were allowed to graduate. The mayor of New York, John Lindsay, even arrived in December to address the students and applaud "the urgent, authentically revolutionary work of this generation."

How much of that revolution has carried over to the Columbia of 2004? Registered students who occupy a building would get a dialogue with administrators, but the school wouldn't shy from expulsion. According to Ricardo Morales, the school's crime prevention specialist since 1983, nonstudent radicals wouldn't make it into the campus buildings. "If you want to bring a friend over," Morales explains, "you bring him to the lobby and swipe your ID cards. The guest leaves a piece of ID. If he wants to stay for a few days, you can apply for a guest pass."

Even when they're not keeping their borders sealed so tight, college administrators have been adopting harsh measures in response to unapproved student behavior. Last fall, students at Southern Methodist University saw their "affirmative action bake sale," a bit of political theater in which prices were determined by the races of buyers, shut down by the student center. They had failed to register with the university as a "protest" or to go to the officially designated "protest zone," on the south stairs outside of the Hughes-Trigg Student Center.

Many college administrators throughout the country are taking great pains to keep their students under tight control. Yet in the late 1960s and '70s, whether colleges could rein in students was an open question. Previously, America's universities had operated under the doctrine of in loco parentis ("in the place of a parent"). By the start of the '70s, thanks to a series of legal rulings and cultural shifts, courts and colleges were tossing out that policy, and universities that had been dealing with students as wards struggled to find a new approach.

That didn't last. In loco parentis has been rejuvenated and returned. Administrators have tapped into the devaluation of personal responsibility illustrated by smoking bans and fast food lawsuits, coupling it with bullish political correctness. The resulting dearth of individual liberties on campuses would have seemed impossible to college students of 25 years ago.

Double Secret Probation

The rights of schools over their pupils were codified before the U.S. Constitution was written. In 1765 the legal scholar Sir William Blackstone wrote that, when sending kids to school, Dad "may also delegate part of his parental authority, during his life to the tutor or schoolmaster of the child; who is then in loco parentis, and has such a portion of the power of the parents committed to his charge."

Blackstone was writing about grammar school students, but 19th-century college administrators liked the idea too. Wheaton College, five years after its 1861 founding, denied students the right to form a secret society. The students sued, but judges washed their hands of the matter. In Pratt v. Wheaton College (1866), the Illinois courts said judges have "no more authority to interfere than [they] have to control the domestic discipline of a father in his family."

Courts took this hands-off approach well into the next century. When public or private universities bought land, the state treated them like personal fiefdoms. Students got whatever rights their school administrators saw fit to give. At Harvard in 1951, the Administrative Board could tell reporters that it would increase the punishment for a window smashing--by however much it wanted--"if a student's name is on the police blotter or in the Boston press" That was the power of in loco parentis.

Not until 1960 did this system begin to break down. That year, six students at the all-black Alabama State College participated in anti-segregation lunch counter sit-ins. The school's president sent them letters expelling them for "conduct prejudicial to the school." According to Stetson Law School professor Robert Bickel, the students' case cut to the root of in loco parentis: "The university actually asserted the right to arbitrarily give some students [due] process and deny it to others." When the students sued, federal courts sided with Alabama State. But in the 1961 decision Dixon v. Alabama State Board of Education, the U.S. Court of Appeals for the 5th Circuit rejected the school's claim of omnipotence. Suddenly, college enrollment was a contract between the student and the school. Since kids didn't lose their constitutional rights in their backyard, they couldn't lose them on campus. State universities slackened their grip, and private universities such as Columbia followed suit.

During the next few years, in loco parentis continued to collapse as courts chipped away at it. In 1974 the U.S. Supreme Court ruled 8-0 in Scheuer v. Rhodes that Kent State students had the right to sue the governor of Ohio for damages incurred during the notorious 1970 shooting there. Chief Justice warren Burger concluded the brief decision this way: "We intimate no evaluation whatever as to the merits of the petitioners' claims or as to whether it will be possible to support them by proof. We hold only that, on the allegations of their respective complaints, they were entitled to have them judicially resolved." Students had been handed the keys to their kingdom.