Expulsion Litigation and the Limits of In Loco Parentis, 1860-1960
by Scott Gelber - 2014
Background/Context: Legal scholars often contrast the litigiousness of contemporary American higher education with a bygone era characterized by near-absolute respect for academic authority. According to this account, a doctrine of “academic deference” insulated colleges until the 1960s, when campus protests and new federal regulations dramatically heightened the intensity of legal oversight. This study tests that conventional wisdom, and its underlying assumption about the origins of student rights, by analyzing expulsion suits during the 100 years before 1960.
Purpose: Faculty and administrators tend to question if external legal pressure can play a constructive role in debates about higher education. This predisposition tempts us to invoke an earlier era of in loco parentis in order to portray institutional autonomy as a time-honored source of academic achievement. By highlighting overlooked state statutes (especially regarding public institutions) and contractual obligations (especially regarding private institutions), this study examines whether the power to discipline students in loco parentis actually triumphed prior to the 1960s.
Research Design: The study presents a historical analysis of the 44 college expulsion cases that were reported between 1860 and 1960. Examination of reported decisions was supplemented by archival research regarding landmark cases.
Conclusions/Recommendations: This study concludes that courts regularly reinstated expelled students during the late 19th and early 20th centuries. These cases indicate that the power to act in loco parentis was limited by a countervailing tradition that emphasized college access and compelled institutions to provide due process prior to dismissal. This early strain of decisions laid the groundwork for the more expansive view of student rights that emerged during the 20th century. This finding encourages faculty and administrators to recognize the legal traditions and student dissenters that helped to enshrine accessibility as a defining feature of American higher education.
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