In loco parentis means “in the place of the parents.” It is an old legal concept that once had a venerable place in Western law.
The doctrine of in loco parentis was invoked when people or institutions had to act in the place of parents. Schools, for example, were deemed to share in a parent’s tutelary and disciplinary roles. When a child was injured and taken to a hospital requiring emergency treatment, care was provided in loco parentis. The hospital first made every reasonable effort to contact the parents and ascertain their instructions, but, when push came to emergency room shove, it was a natural and logical assumption that a parent would want his child to get life-saving care in life-threatening circumstances. Likewise, back in the quaint old times when even college dormitories were sexually segregated, the justification for it was that the university was acting in loco parentis: if mom and dad didn’t let their daughter have a boy in her room all night, neither should her college.
Behind the notion of in loco parentis stood certain, self-evident assumptions: that the person with primary care, concern, and responsibility for a child was the child’s parent; that the parent-child bond was primary and unique; and that those who acted in loco parentis did so on behalf of parents, whose primacy was just that—primary. Others did not have an inherent right to intrude or substitute their judgment for the parents’ judgment.
Also underlying the classical notion of in loco parentis was natural law. The assumptions of what a parent would want (or not want) were consistent with the primacy of the parental role because of the unique relationship of parent and child as well as the understanding that parents’ choices occurred against the backdrop of an objective moral order. In other words, parents wanted “what was best for their child” when “best” had a content and was not made up by every parent at whim. That is why, even in extreme cases like child neglect or abuse, parental rights had first to be suspended before the state could swoop in.
Ah, but I reminiscence. As we recently learned from Harvard Law Professor Elizabeth Bartholet, we’re in a brave new world.
The immediate source of controversy was an article Bartholet wrote for the Arizona Law Review, part of the recommended readings for a June Harvard conference on homeschooling. Bartholet attacks homeschooling as a “danger” that puts children “at risk.” After throwing out various strawmen—domestic abuse, parents who cannot teach their children—she finally comes to the nub of her position why the American legal default ought to prohibit homeschooling: homeschooling might deny a child’s “right to exposure to alternate views.”
National Review writer John Hirschauer rightly exposed what’s irritating Bartholet. Would she demand, in the name of a child’s “right to exposure to alternate views,” that a kid being raised by absolutely secular parents and being sent to secular schools would have to spend six months in some monastery school somewhere to gain “exposure to alternate views”? The answer is obvious.
Hirschauer rightly argues that what Bartholet et al. claim is not even a “right” but an “obligation” for exposure to secular viewpoints. Bartholet and company are advancing an audacious claim: not only does society have an obligation to be value neutral (itself an arguable claim) but that every child must be “exposed” to that same dictatorship of relativism, and that mothers and fathers who fail to do so are negligent parents for whom society must act in loco parentis to prevent asserted harms to the child.
Except that here in loco parentis does not mean in place of the parents as the primary guardians of the child, but in lieu of them.
To justify this unprecedented power grab, Bartholet brands as “dangerous” the notion that “parents should have monopoly control over children’s lives, development, and experience. That parents who are committed to beliefs and values counter to those of the larger society are entitled to bring their children up in isolation, so as to help ensure that they will replicate the parents’ views and lifestyle choices.” Fellow anti-homeschooling panelist James Dwyer, Professor of Law at William and Mary, goes further, appearing to assert that the “reason parent-child relationships exist is because the State confers legal parenthood.”
Well, Professor Bartholet, nobody is asserting that parents have a “monopoly” over their children’s lives, and in the modern world that is well-nigh impossible. On the other hand, be honest that you are asserting a right to subvert “parents’ views and lifestyle choices.” As a law professor, you know that the courts have generally protected them (see, for example, Wisconsin v. Yoder, nullifying Wisconsin compulsory school laws vis-à-vis Amish who did not want to enroll their children in high school). You know that these are long-established precedents. So, you admit that it’s okay when a couple of Amish in Pennsylvania or Wisconsin go off on their own, but you will not tolerate Christians in general walking out on post-Christian society. And, Professor Dwyer, you are utterly wrong: parenthood is not merely a legal construct, and parents will rightly fight any attempt by you to reduce it to only or primarily that.
The Sexual Revolution is obviously percolating behind all this. Don’t be surprised that Dwyer believes that parenthood is essentially a legal construct. When, in the wake of Roe et al. v. Wade, Missouri sought to create some balance by insisting that the father of an unborn child had a say concerning abortion, the Supreme Court in 1976 struck that law down. What intrigues me was the majority’s assertion that a father’s consent could not be demanded because Roe had established that states had no “veto power” over abortion and so could not “delegate” it to fathers (428 US 69). Do you get that, dad? Your interest in your child is “delegated” by your state.
Abortion is elsewhere behind the erosion of parental rights, in light of the fact that parents have essentially been stripped of a consent role vis-à-vis a minor’s abortion and, in many places, they are even deprived of notification—i.e., being told—about a minor’s abortion.
Bartholet, Dwyer, et al. are very much on the cusp of a new push against parental rights, also driven by the Sexual Revolution. When the Supreme Court ruled in Obergefell v. Hodges that homosexual “marriage” was constitutionally guaranteed, it had to address the claim of states that sexual differentiation was essential to marriage because marriage could be procreative. The Court got around that objection by asserting that marriage and parenthood were two completely separate things.
Now, however, naturally sterile homosexual “spouses” are claiming a right to children, on the grounds that Obergefell assures them of the rights and privileges of married life, including procreation. In order to advance that claim, the law must be blind to biology as a factor in parenthood, and the most cursory review of bioethics literature shows very much a trend in that direction. Biology alone should mean nothing. Paradoxically, just as in ancient Rome a child was not a father’s until he “adopted” it (allowing for discard with impunity of females and handicapped children), so the theory of “parenthood” percolating underneath the homeschooling issue is really that “every child is your child by an act of will and social consent.” Now it not only “takes a village to raise a child,” but apparently you need the village elders’ consent.
The controversy over homeschooling is merely the tip of an iceberg. What’s under the water is far more interesting—and dangerous to parental rights—than the immediate controversy. Catholics clearly have a stake in this new in loco parentis because it’s really a warmed-over version of the old patria potestas, except that now Caesar is the ultimate father.
Image: The Education of the Virgin by Louis-Jean-François Lagrenée