AuthorWilliamson, Frances


In 2021, the Court heard the case Mahanoy Area School District v. B. L., which forced the Court to answer the question of whether public schools could assert control over off-campus student speech. (1) While the majority ruled in the affirmative, Justices Thomas and Alito authored separate opinions that addressed the historical traditions of parental rights, teacher authority, and American public education. Though both Justices have donned the title of "originalists," (2) their interpretations of the historical legal doctrine of parental delegation--in loco parentis--produced drastically different conceptualizations of school authority. (3) The approaches of Justices Thomas and Alito in Mahanoy reveal the inability of the originalist school of thought to cohesively define "original public meaning." This failure undermines the legitimacy of originalism as an interpretative tool: if jurists must use normative judgements to determine the level of generality (4) with which to define "public meaning," then can originalism really claim to provide interpretive certainty?

The two theories of public school speech regulation embraced by Justices Thomas and Alito in Mahanoy highlight a contextual difficulty in originalist interpretation of the historical record. Justice Alito envisions a limited version of the historical doctrine of in loco parentis that highlights the incompatibility between voluntary parental delegation of power and the compulsory education system. (5) Conversely, Justice Thomas relies on a limited historical record and produces a stricter interpretation that gives public schools broad authority to punish off-campus speech. (6)

The "types" of originalist interpretations exercised by judges vary, and the opinions of Justices Thomas and Alito in Mahanoy showcase these variations. Ultimately, these two opinions highlight a weakness in originalism: the lack of governing principle as to which historical record to adopt and which historical "public meaning" to take into account. Originalism, a school of legal interpretation that prides itself on its objectivity, leaves a critical element ambiguous: failing to define the meaning of "public meaning".

This paper first presents an overview of in loco parentis. It begins with the articulation of the doctrine in Blackstone's Commentaries and traces the appearance of the doctrine through early American jurisprudence. This history serves as a backdrop for a discussion of the doctrine in modern free speech cases, culminating in an analysis of how Justices Thomas and Alito employed the historical record in their "originalist" defenses of opposite conclusions. The analysis presents a modern example of how two great legal minds, each performing a thorough examination of the historical record and the original meaning of a historical doctrine, reach opposite results. The final section of this paper describes how these disparate results connect to flaws that permeate originalism and expose fractures within the originalist school of thought.


    1. English Doctrine

      The doctrine of in loco parentis originates in William Blackstone's Commentaries on the Laws of England, published in 1765. (7) In Book One, Chapter 16 (titled "Of Parent and Child"), Blackstone wrote that:

      A 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, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed. (8) In Blackstone's conceptualization of the parent-child relationship, the father governed his offspring. Although the English law governing this relationship came from the Roman law of father and child, the English law "softened" that of their Roman predecessors; the father no longer maintained the power of life and death over his child, but he still enjoyed enough power to enforce "order and obedience" and punish his child in a "reasonable manner ... for the benefit of his education." (9) Blackstone further described how the father could voluntarily delegate a portion of his authority to the "tutor or schoolmaster of his child." (10) This delegated authority allowed the tutor to discipline and govern the child as needed for the "purpose[] for which [the tutor was] employed." (11) But how much power did the parent delegate, and how did discipline by the tutor interrelate with discipline by the parent?

      In the 1850s, about one hundred years after Blackstone published his Commentaries, the issue of in loco parentis emerged in the context of public school authority in England. (12) Some schoolmasters interpreted the gambit of their authority under the historical doctrine to exceed that of the parent; they saw their role as "not so much in loco parentis as an authority over and above, and distinct from the parents." (13) The power of teachers in the English public school system "might actually encroach upon that of the parents." (14) But this interpretation did not go unquestioned, and the interpretations of these English schoolmasters faced the criticism that they improperly invaded the parental sphere. (15)

      Despite criticism, the doctrine of in loco parentis carved a space in the cultural identity of English teachers in the eighteenth and nineteenth centuries. The teachers believed that "in loco parentis went beyond a mere delegation of rights and responsibilities connected with children" and was "recognised as part of their professional identity, connected with their self-perception as a group concerned with the welfare of children, and instrumentalised as a strategy for retaining effective disciplinary powers." (16) To English and Welsh teachers, the classroom was a space requiring firm, yet fair, discipline; it was an "idealised statement of the circumstances which ought to subsist between the two halves of the classroom dynamic [between the student and the teacher]." (17) Although in loco parentis involved language of delegation in Blackstone's original description (1765), by the nineteenth century, educators believed it "existed independently" of parental rights, and "parents could not refuse to delegate their authority." (18) In loco parentis, to some, did not rely on a parent's expectations of a teacher's role in his or her child's life.

      This brief account of the English tradition of in loco parentis in public schools draws two themes into focus: the contentious power of the schoolmaster and the role of parental delegation. These two themes appeared in early American jurisprudence as courts in the United States faced similar questions of school power and parental authority, themes that are resurrected in the opinions of Justices Thomas and Alito in Mahanoy.

    2. State v. Pendergrass (N.C. 1837) (19)

      The first case that named in loco parentis as a doctrine applicable to the American education scheme (20) was State v. Pendergrass, wherein a schoolteacher was indicted for assault and battery of one of her students, a young girl. (21) At the beginning of the opinion, the Supreme Court of North Carolina conceded that it was "not easy to state with precision, the power which the law grants to schoolmasters and teachers, with respect to the correction of their pupils." (22) But the court stated that the power of the school teacher was "analogous to that which belongs to parents, and the authority of the teacher is regarded as a delegation of parental authority." (23) The court elaborated that the teacher stepped into the shoes of the parent when the parent was not present--that is, during the school day--and the teacher exercised "delegated duties" of "preserving discipline, and commanding respect." (24) The teacher was the master, and "[w]ithin the sphere of his authority, the master is the judge [of] when correction is required, and of the degree of correction necessary...." (25) The North Carolina courts believed teachers could determine how best to punish a student and could carry the punishment out to the extent they deemed necessary--as long as they had no malicious intent.

      This "wickedness of purpose" (26) was the only real restraint the court referenced in its description of teacher authority. A school teacher could abuse the delegated power or act in an inappropriate manner by acting in a severe and improper way. For example, if the teacher "endanger[ed] life, limbs or health, or ... disfigure[d] the child, or cause[d] any other permanent injury," his actions "may be pronounced ... immoderate, as not only being unnecessary for, but inconsistent with, the purpose for which correction is authorized." (27) While permanent, serious injury formed the boundary of a teacher's power, the court stated that a teacher's less excessive harms that did not cause serious injury (described as "indiscretions") were not worthy of legal correction and would "find their check ... in parental affection, and in public opinion...." (28) If not limited by the guardrails of public opinion, then the teacher's discipline and occasional excessive mistake was to "be tolerated as a part of those imperfections and inconveniences, which no human laws can wholly remove or redress." (29) The courts believed public opinion, not the law, provided the best remedy for the over-zealous punishment of children.

      Despite its nod to parental affection and the restraining hand of public opinion, the court asserted an almost unlimited degree of teacher authority in the schoolroom, an authority that seemed to exist because of the initial parental delegation. By choosing to send his or her children to school, the parent placed the child under the substitute control of the teacher. The teacher had the power to act in almost any manner to maintain discipline and order in the classroom. Therefore, any transgression could be punished...

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