The legal relationship between college and university officials and their students is often defined by institutional regulations, rules, and policies that impact extracurricular activities as well as the places in and around campuses where these activities occur. Traditionally, the law has accorded officials at postsecondary institutions extensive autonomy in their daily operations. This academic autonomy has included institutional relationships with students that have been parental in nature. However, over time, the doctrine of in loco parentis, literally, “in the place of the parent,” which applied to the relationship between college and university officials and their students, has diminished, as the relationship has increasingly been viewed as contractual in nature. Of course, to the extent that institutional officials promulgate policies that are incorporated by reference into enrollment agreements, students are expected to comply with their terms. In light of the manner in which the relationship between officials at institutions of higher learning and their students have evolved, this entry examines the parameters of control that college and university administrators can exert over extracurricular activities on and near campuses.
Gott v. Berea and the Evolution of In Loco Parentis
Gott v. Berea College (1913) exemplifies how in loco parentis functioned between students and officials in institutions of higher learning. Officials at Berea College distributed a manual containing rules and regulations for students. One section of the manual, titled “Forbidden Places,” forbade students from entering any place of ill repute, liquor saloons, gambling houses, and the like. Other forbidden places included eating houses and places of amusement in the city of Berea that were not controlled by the college. Students were warned that if they entered these places, they would face immediate dismissal. This policy was based on the rationale that because college officials provided for recreation and ample accommodations for meals and refreshment, they would not permit outside parties to solicit student patronage for profit.
After two students were expelled for entering a restaurant across the street from the college, its owner filed suit. The owner claimed that the rules had the effect of materially injuring, if not ruining, his business, because the students were afraid to patronize his restaurant. On further review of a judgment in favor of the college, Kentucky’s highest court affirmed the earlier order. The court held that because college officials stood in loco parentis with respect to students’ mental training and physical and moral welfare, however widely defined, college officials could adopt rules just as parents might have done. In addition, the court noted that whether the rules or regulations were wise or their aims worthy was a matter left to the discretion of the authorities or parents. The court explained that in the exercise of the discretion that officials enjoyed, the judiciary should not interfere, unless college rules were unlawful or violated public policy.
Cases such as Gott established the basic principles of law regarding extracurricular activities and their relationship to college and university students. The courts generally agreed that the power of institutional officials over their students was not confined to classes or grounds. Rather, the courts maintained that rules extended to any student acts that may have been detrimental to institutional good order and best interest, regardless of whether the student acts were committed during school hours or while individuals were on their way to or from campus. The courts acknowledged that while these rules and regulations were not meant to interfere with parental control of their children in their homes, they were designed to direct the actions of student bodies. Accordingly, the courts determined that institutional officials were well within their authority when, in cases such as Gott, they directed students as to what to eat and where they could get it, where they could go, and what forms of amusement were forbidden.
Limitations of In Loco Parentis
Over the course of the 20th century, the in loco parentis relationship between institutions of higher education and their students has become more limited in nature. Two factors contributing to this change are the increased number of students who move directly into graduate study and the lowering of the age of majority of students from 21 to 18, making the in loco parentis relationship between institution and student less and less tenable. Further, as military veterans returned to school in the post–World War II years, in loco parentis was seen as increasingly anachronistic. The move away from in loco parentis in higher education was evident in Dixon v. Alabama State Board of Education (1961). Although the U.S. Supreme Court refused to hear an appeal from the Fifth Circuit in Dixon, this case marked the shift away from in loco parentis as an approach to student–institution relationships in higher education, as the Fifth Circuit found that officials improperly exercised their authority in disciplining the students in this case, because they lacked the authority to expel students for misconduct without due process hearings.
Rights of Student Organizations
As the legal relationship between institutions of higher learning and their students evolved, student organizations and extracurricular activities entered the mix. For example, in Gay Student Services v. Texas A&M University (1984), the Fifth Circuit examined whether officials at a public university violated the First Amendment rights of a gay student organization and three of its members by refusing to grant the group official recognition. University officials argued that their refusal was not based on the content of the group’s ideas but rather on the university’s longstanding policy of refusing to recognize fraternal organizations whose principal purpose is to engage in social gatherings to encourage friendship and personal affinity. In disagreeing, the court found that the refusal of officials to recognize the gay student organization as an on-campus extracurricular organization impermissibly denied its members their First Amendment rights to freedom of speech.
In Healy v. James (1972), the Supreme Court examined whether the refusal of college officials in Connecticut to grant recognition to those who wished to start a local chapter of Students for a Democratic Society (SDS) violated the students’ First Amendment rights. The stated goals of SDS were to provide a forum for discussion and self-education for students, to bring about constructive social changes, and to provide a coordinating body for addressing the problems of leftist students and other interested groups on campus and in the community. The dispute arose in 1969, when a climate of unrest prevailed on many campuses, as widespread student civil disobedience was often accompanied by vandalism, arson, and seizure of buildings. Some institutions shut down altogether, while others had files looted and manuscripts destroyed. On some campuses, SDS chapters had been a catalytic force during the period. Based on these concerns, college officials refused to recognize the proposed SDS chapter.
In a unanimous decision authored by Justice Marshall, in Healy, the Supreme Court balanced the lawful exercise of First Amendment rights by the few with the concomitant rights of the majority of students. The Court decided that the mere disagreement of the college’s president with SDS’s philosophy did not afford a reason to deny it recognition absent clear evidence that it would have been a disruptive influence at the campus.
Cases regarding other efforts by college and university officials to regulate and control extracurricular activities have grown as the courts have examined a significant number of issues. In one such case, a student successfully challenged her dismissal for being a disruptive influence when she suggested a petition and signed it, along with others, charging the school’s administration with overcharging them and misappropriating government loans and grants (Fussell v. Louisiana Business College of Monroe, 1988). The court held that the student’s voicing her complaints to a newspaper reporter was not a violation of her obligation to avoid disruptive behavior.
Other legal issues arise related to fraternities and student use of alcohol. In general, if the actions of students who are involved in fraternities contribute to alcohol abuse by their members and others, they and their organizations can be liable for this abuse. Moreover, as reflected by a case from South Carolina where a student who was seeking to join a fraternity died of being forced to consume large amounts of alcoholic beverages, its members were liable for his death, because they had a duty to provide aid to students who are inebriated (Ballou v. Sigma Nu, 1986). Consequently, in order to regulate alcohol abuse and consumption, campus officials commonly take steps to monitor fraternity activities more closely.
Hazing on college campuses, particularly in the context of fraternities and sororities, has resulted in litigation. Students have been injured in hazing incidents during school-sanctioned extracurricular activities, exposing institutions to financial liability. Based on these concerns, state laws regarding hazing by fraternities and sororities are typically upheld and often lead to having fraternities and sororities on campuses becoming decertified if their officials are unable to control the activities of their members (Phelps v. Colby College, 1991). College and university officials continue to be concerned that they have a duty to exercise reasonable care when they know or should have known that fraternities haze prospective members. As a result, due to the large number of injuries that prospective fraternity members and others sustain during hazing, legislatures in a growing number of states have joined colleges and universities in enacting antihazing laws to control the behavior of students.
Status of Constitutional Claims by Students
As a final matter, in the context of events that transpire on college and university campuses, students cannot always rely on constitutional claims, such as deprivations of their First Amendment rights as in Healy, to overturn charges that they have violated institutional rules, especially because constitutional constraints typically are inapplicable at private institutions. Furthermore, insofar as college or university attendance is considered a privilege and not a right, courts do not often allow constitutional claims to supersede institutional rules, particularly when students are subject to discipline. Participation in voluntary extracurricular activities is even less like a right than a privilege, and thus it is even further removed from constitutional protection than attendance at colleges and universities; as a result, there is even greater judicial reluctance to intervene in disputes over such activities. Moreover, while some courts conceded that students entered into contractual relationships with their institutions, officials typically have virtually unlimited power to dictate contractual terms. Not surprisingly, courts routinely uphold rules that are promulgated by college and university officials.
In general, courts agree that because attendance at colleges and universities is a privilege and not a right, officials have the authority not to accept students for admission. However, once admitted as students at institutions of higher learning, students are required to comply with rules and regulations that are related to academics as well as to their deportment during school hours and extracurricular activities. To this end, institutional officials promulgate rules and policies affording them the authority to dismiss students whose behavior they determine is unacceptable.
Colleges and university officials have also implemented rules aimed at regulating the prevalent moral environment, however widely defined as following institutional policies. In attempting to regulate student morality, institutions often oversee extracurricular activities and accepted behaviors. As a result, officials must be able to refer to rules, regulations, or reasons related to students’ academic performances or deportment that the students allegedly violated before the students can be expelled for disciplinary infractions. At the same time, once accused, students bear legal burden of proving that they have followed institutional rules and regulations. If officials find that students failed to comply with the established norms, the students may be dismissed. In this way, college and university officials preserve their authority over students outside of classrooms as they engage in extracurricular activities.
Vivian Hopp Gordon
- Melear, K. B. (2005). Contracts with students. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 209–234). Dayton, OH: Education Law Association.
- Russo, C. J., & Thro, W. E. (2005). Student equal protection and due process. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 257–275). Dayton, OH: Education Law Association.
- Ballou v. Sigma Nu, 352 S.E.2d 499 (S.C. Ct. App. 1986).
- Dixon v. Alabama State Board of Education, 294 F.2d 150 (1961), cert. denied, 368 U.S. 930 (1961).
- Fussell v. Louisiana Business College of Monroe, 519 So.2d 384 (La. Ct. App. 1988).
- Gott v. Berea College, 161 S.W. 204 (1913).
- Healy v. James, 408 U.S. 169 (1972).
- Phelps v. Colby College, 595 A.2d 403 (Me. 1991).