Students' Rights: A Conceptual Framework for Postsecondary Student Academic Freedom
Bowden, Randall G., Academy of Educational Leadership Journal
Historically, colleges and universities have various legal relationships with students. One of the most common relationships is under the doctrine of in loco parentis as institutions serve "in the place of parents." However, the phrase has come to have different applications of its meaning. It is safe and sound on campuses (Bratten, 2006; Honigan, 2003; Sweeton & Davis, 2003, 2004); or, it is applied as living-and-learning communities (Altschuler & Kramnick, 1999); or, it is viewed in a legal context, thus giving rise to contract law governing the relationship between an institution and its students (Goodman & Silbey, 2004; Melear, 2003). Whatever one's view, in loco parentis has undergone a dramatic transformation through the years, beginning in mid-July 1971. The focus of this paper is to examine in loco parentis in light of how the "age of majority" from the twenty-sixth amendment of the U.S. Constitution lays the groundwork for the contractual relationship between students and postsecondary institutions. Then, it demonstrates how "age of majority" relates to student academic freedom. In doing so, the paper explains how student academic freedom can only be a product of a contractual relationship. As a result, a Student Academic Freedom Conceptual Model is presented.
These issues are represented in three sections: (1) Background to demonstrate the shift from traditional views of in loco parentis to age of majority contractual obligations; (2) Conceptual Model to delineate aspects of student academic freedom, postsecondary obligations, and student conduct responsibilities; and (3) Conclusion summarizes how the conceptual model of student academic freedom is limited by contractual relationships.
As an important note, the information in this paper relates primarily to public institutions. Students at private institutions may not be afforded the same rights as they would if attending public ones. Kaplin and Lee (2007) make this very clear. "Before a court will require that a postsecondary institution comply with the individual rights requirements in the federal Constitution, it must first determine that the institution's challenged action is 'state action'" (p. 33). Thus, unless an institution is state controlled or under state action by some relationship, such as a contract, individuals at private institutions may not be afforded the same constitutional protections as they would at public ones.
Traditionally, postsecondary institutions assume responsibility for the general well being of students well beyond academics. As such, it is a duty of education to impact the whole person (Bratten, 2006; Nuss, 1996; Pascarelli & Terenzini, 2005) where the academy could be regarded as a guardian, responsible for oversight for student's well being from intellectual maturity to moral development, from "libido to laundry" (Altschuler & Kramnick, 1999, para. 4). However, the association between student and institution as a legal relationship changed in the 1960s as institutions began to expel students for political and social activism (Mealer, 2003; Pollet, 2002). These actions prompted a landmark case that led to the changing nature of the student/institution relationship. The court case, Dixon v. Alabama State Board of Education (1961), was influential in the shift. The case was based on six black students at Alabama State College who had been expelled for participating in civil rights activities. The institution claimed it had the right to oversee what was proper behavior of its students on and off campus (i.e., in loco parentis). The court rejected the idea of in loco parentis by educational institutions as they exercised power over students in a similar fashion as parents having legal responsibilities over their child as minors (Kaplin & Lee, 1997). The ruling profoundly affected the role of colleges and universities toward students. If the doctrine of in loco parentis no longer applied to oversight as it had in the past, how does it affect college students? …