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Authors

Scott J. Street

Abstract

tudent speech" doctrine defined by Tinker in favor of an in loco parentis standard that defers to the expertise of school officials in maintaining a safe, effective, and orderly school environment. Contrary to what its critics assume, an in loco parentis standard would not give school officials carte blanche to violate their students' rights. It would, for example, prohibit school officials from discriminating against students on the basis of viewpoint. But as long as Tinker's student speech doctrine survives, efforts to improve our schools and prepare our children for the rigors of the twenty-first century will suffer. The in loco parentis standard recognizes that these efforts are as important as protecting student speech rights and it therefore tolerates restrictions on speech to ensure the success of educational reforms. This concept of "in loco parentis," does not fully embrace the English notion that parents delegate their authority over their children to school officials. Rather, Part II describes how that concept evolved into the American concept of preparing children for their civic roles in the Republic. It also tracks the way courts treated school disciplinary policies, from the laissez-faire attitude of nineteenth century judges to the skepticism of their post-Vietnam counterparts. Part III explains why reformulating the Court's student discipline doctrine to emphasize a school's in loco parentis-responsibilities is necessary to raise academic achievement and ensure that students finish high school-the most compelling interests in modern education policy. Part IV considers the counter-arguments and explains why we should not be as concerned when the government regulates speech in its nonsovereign capacity, such as when it acts as an educator. It also describes how the in loco parentis standard properly defers to the authority of school officials while prohibiting them from disciplining students in a way that promotes one viewpoint over another. Finally, Part V compares how a recent student speech cases would have been decided under the in loco parentis standard. The comparison concludes that an in loco parentis standard provides as much protection for student speech rights as the current student speech doctrine without compromising the ability of educators to control their classrooms.