A legal and philosophical perspective on the in loco parentis position of teachers

A legal and philosophical perspective on the in loco parentis position of teachers The in loco paren tis position o f the teacher implies that he/she is regarded as acting in the place o f the parent. This principle is em bedded in South African common law and in many respects confirmed by statutory law. In the South African legal context, it implies that the teacher is obliged to take care o f the physical and mental safety o f the pupil and has the right to maintain discipline. It is a legal instrument fo r bringing about order in the educative duties o f teachers. A more philosophical line o f reasoning, centring on sphere sovereignty, reveals why jurists tend to compare the duties o f teachers with those o f parents, but do not equate them with each other or regard these duties as synonymous. 1. Introductory remarks The principle o f in loco parentis is well embedded in the legal history of education (Lombard, 1993:7). In South Africa, in particular, it has had a strong influence on the formal education process (Oosthuizen, 1989:104; Prinsloo & Beckmann, 1987:281; Oosthuizen, 1994:44). After having gone through different phases of development, the approach to the in loco parentis position of the teacher presently adopted in the USA was referenced in the 1995 US Supreme Court decision of Vernon School District v. Acton. The outcome maintained that the relationship between pupil and parent was “custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults” (Rossow & Parkinson, 1995:1). Koers 63(1 & 2) 1998:89-99 89 A legal and philosophical perspective on the In loco parentis position o f teachers In this article, the legal as well as the philosophical bases of the doctrine of in loco parentis will be investigated in order to discern to what extent they relate to each other. 2. Two fundam ental aspects In considering the fundamental aspects o f the relationship mentioned above, certain Reformational philosophical insights were utilized, especially those insights pertaining to anthropology and societal theory. No specific philosophical system was followed, however. Philosophical perspectives such as the following have been applied: the leading and founding functions of societal spheres, primary and secondary functions of functionaries (parent and teacher), sphere sovereignty and universality, stewardship, and the resultant approach to education. Two fundamental notions come to mind when an analysis o f the in loco parentis principle is undertaken: “education” on the one hand, and the notion o f “a teacher being in the place or stead of the parent” on the other.


Introductory remarks
The principle o f in loco parentis is well embedded in the legal history of education (Lombard, 1993:7).In South Africa, in particular, it has had a strong influence on the formal education process (Oosthuizen, 1989:104;Prinsloo & Beckmann, 1987:281;Oosthuizen, 1994:44).
After having gone through different phases o f development, the approach to the in loco parentis position o f the teacher presently adopted in the USA was referenced in the 1995 US Supreme Court decision o f Vernon School District v. Acton.The outcome maintained that the relationship between pupil and parent was "custodial and tutelary, permitting a degree o f supervision and control that could not be exercised over free adults" (Rossow & Parkinson, 1995:1).
In this article, the legal as well as the philosophical bases o f the doctrine o f in loco parentis will be investigated in order to discern to what extent they relate to each other.

Two fundam ental aspects
In considering the fundamental aspects o f the relationship mentioned above, certain Reformational philosophical insights were utilized, especially those insights pertaining to anthropology and societal theory.No specific philosophical system was followed, however.Philosophical perspectives such as the following have been applied: the leading and founding functions o f societal spheres, primary and secondary functions o f functionaries (parent and teacher), sphere sovereignty and universality, stewardship, and the resultant approach to education.
Two fundamental notions come to mind when an analysis o f the in loco parentis principle is undertaken: "education" on the one hand, and the notion o f "a teacher being in the place or stead o f the parent" on the other.

"Education"
Van Rensburg, Landman and Bodenstein's (1994:366) definition o f education was found to be helpful in this respect.According to them, education in its pedagogic (i.e.child-directed) form is the conscious and purposeful intervention by an adult (i.e. the teacher or parent) in the life o f a non-adult (educand) to bring the latter to a state o f adulthood characterized by independence and maturity.Various authors have analysed this definition, in the process revealing the following essential features o f education (cf.Van Rensburg et al., 1994:366;Van der Walt, 1983:23;Van Loggerenberg & Jooste, 1980:45): • Education is characterized by a strong agogic relationship or bond between the two participants: the educator and the educand.
• Attaining "adulthood characterized by independence and maturity" through the process o f education entails the development o f the educand in his/her totality.This process includes the development o f aspects o f being human such as the spiritual, intellectual, the norm and value system o f the educand, as well his/her ability to fulfil his/her calling in life, including taking up a career (Van Rensburg et al., 1994:366).
• A variety o f societal spheres such as family, church and school, is instrumental in guiding the educand to adulthood.The interaction among these societal relationships or spheres is determined by the fact o f sphere sovereignty, as will be outlined in 2.2 and 2.3 below.Sphere sovereignty has serious implications for the in loco parentis principle, as will be indicated.
What has been outlined above, is education in the sense o f the German word Erziehung, i.e. as the all-embracing and complete guidance and assistance of the educand to full adulthood (see Henz, 1975:23ff.).This means that parents as well as teachers are educators.In the same line of thought, ministers of the church as well as traffic officers are educators in the course o f their dealings with children and others who need guidance.Education occurs within a variety o f interacting societal spheres.The spheres of family and school are examples o f such inter acting societal spheres or relationships: parent and teacher each fulfils his or her respective role as educator of one and the same child.
However -and this is important for understanding the in loco parentis position of teachers -education is not the prim ary task o f either parents, teachers, ministers of the church or traffic officers.The primary task of each o f these educators is determined by the primary task o f the societal relationship in which the person functions.Education in the parental home is therefore qualified by the primary task o f loving care for the children as family members (the ethical aspect of reality), whereas education at school is qualified or characterized by logicalanalytical activity (the analytical aspect o f reality).The difference between the respective leading functions (primary tasks) of the parental home (i.e.loving care) and of the school (i.e.analytical processes) results in a concomitant difference between the competence area and authority sphere o f parents on the one hand, and o f teachers on the other, regardless of the fact that they find themselves involved with one and the same child (Van der Molen, 1979:176).Both have an educative task, differently qualified.(It is important to note that philosophers of education sometimes make a rigid distinction between the primary tasks of respectively the parent and the teacher mainly for theoretical reasons.One is seldom aware o f such a rigid differentiation in tasks in real life.) Because o f the difference between the competence areas and authority spheres of parents and teachers, a teacher as educator can never "take the place" of the parent as primary educator o f a child.No teacher can in principle be entrusted with the parental task o f education as qualified by the loving care o f the fam ily.
The educative task o f the school as a societal sphere, and thus o f the teacher, is typically qualified by the school's primary task o f teaching-leaming, i.e. by analytical processes.
In view o f this point o f departure, the following misconceptions can be avoided: • The idea that the school has been derived from the family.Although a group o f parents might have been instrumental in erecting a school, a school is an independent societal relationship in its own right, with its own unique ontic structure, task and aims.
• The idea that teachers derive their authority from the parental home.Being the office bearers o f an independent societal relationship or sphere, teachers possess independent authority in their own right.
• The notion that parents can delegate their educative task to teachers.Such an action on their part would lead to the abrogation o f the parental home as a societal relationship.
• The notion that teachers can, in their own right and within the context o f the school, educate the child to full maturity.Within the context o f sphere sovereignty, the task o f teachers is restricted to educative teaching.
In conclusion, then, the in lo c o p a r e n tis principle should be applied in such a manner that the fundamental difference between the respective educative tasks o f parents and teachers is not violated or negated.

In loco parentis as a legal principle applicable in education
Literally translated, in loco parentis means "in the place (in lieu, instead) o f a parent" (Hiemstra & Gonin, 1986:210).According to Black (1983:403) it means " in the place o f the parent; instead o f the parent; charged factitiously, with a parent's rights, duties, and responsibilities" .
The in loco parentis principle reveals the following essential legal elements (Oosthuizen, 1989:104;Prinsloo & Beckmann, 1987:281;Oosthuizen, 1994: 44;Hosten et al., 1983:476): • These legal elements suggests the presence o f office bearers.This view refers to the persons who legally hold the office o f in loco parentis and who can, depending on circumstances, be teachers or housemasters, entrusted with temporary custody of the child by the child's parents .
• In loco parentis refers to the interaction between two societal spheres, e.g.those o f the school and the family: the family is regarded as the primary societal sphere since education commences within the context o f the family.The school is regarded as a secondary societal sphere since the child (educand) is entrusted to it by the primary societal sphere o f the family.The school, and therefore also the teachers, operate within well-defined juridical parameters, which provide them with a great deal of independent discretion in the education (as qualified by teaching/instruction) o f the child within the context o f the school as a societal relationship.

Societal or sphere sovereignty
The reciprocal relationship between parent and teacher is based on a partnership o f common interest in the education o f the educand.As far back as 1874, under the presidency o f T.F.Burgers o f the Zuid-Afrikaansche Republiek, this partnership obtained a judicial basis on South African soil through the promulgation o f the Education Act (no. 4 of 1874 -popularly known as "the Burgers Act").This Act determined that school matters be decided by a " School Commission" which should consist of six members who were parents o f pupils from the particular community (Barnard, 1979:49 ff.)Although the partnership between parent and teacher(s) is mainly driven by the common goal o f education, it should be borne in mind that in this respect we are dealing with two separate societal relationships: the school and the family, and thus with education in its respective meaning o f parental education and education by teachers.
The status o f in loco parentis as a legal principle can not be contested.As a legal or juridical instrument, the in loco parentis principle has been devised (positivized) by jurists to serve the important function o f regulating the legal relationships between the parental home (parents) and the school (teachers).As such, it pertains to the function o f ordering and regulating the life o f people within the borders o f the state.The common law principle o f in loco parentis is an expression o f this responsibility o f the community and the state.The in loco parentis principle can therefore, in a sense, be regarded as founded and grounded in the fundamental task o f the state, viz. the duty to order, rule and regulate civil life in its territorium.It is a consequence o f efforts on the part of the state, of legislators and jurisprudents to give verbal expression to an ontic feature o f statal existence, viz.that o f order and regularity (Van Zyl & Van der Vyver, 1982:275).This is the true foundation of the in loco parentis concept as a legal instrument.
Against this background, as well as against the background o f the school as an independent societal relationship in its own right (cf. Dooyeweerd, 1986), the teacher has the task -as determined by his/her duty o f educative teaching (i.e. of regulating or managing the processes of teaching-learning) -o f performing the following duties: • to discipline pupils; • to take care o f the physical and mental well-being o f pupils whilst they are under his or her supervision; • to organize and manage the parent-teacher partnership in order to enhance the teaching-learning processes o f the pupil/learner (Van Katwijk, 1994:80-81).
As was previously explained, the aims o f teachers and parents converge in the fact that their efforts are continually fo cu sed on the education o f one and the same child.Parents and teachers thus have a shared interest, i.e. the welfare o f the child, despite the fact that the child assumes different statuses when involved with the parent or involved with the teacher.Their shared focus on the child, and concern for the well-being o f the child, result in an unavoidable teacher-parent relationship, which should be cherished and promoted by both teachers and parents.In the school context (i.e. the teaching-learning context) the teacher is expected to maintain and promote this teacher-parent relation ship.In the context o f the family, the parent is expected to reciprocate.
Although the legal principle o f in loco parentis implies that the teacher is "in the place" (Black, 1983:403) o f the parent, it can never mean that he or she replaces the parent.According to Black (1983:403), the teacher stands in the place o f the parent in a "factitious" way.The relationship between teacher and pupil can be described as "artificial rather than genuine".

Some p ra ctic a l implications of the in loco parentis
principle as a leg al instrument in ed u catio n

General remark
Given the fact o f the teacher's unique interest in the educative teaching o f the child, his/her in loco parentis role implies that he/she has the obligation to manage the teaching-Ieaming processes involving the pupil, that he/she has the right to maintain "school"-authority over the pupil, to discipline him/her at school in the context o f the teaching-Ieaming process, and that he/she has a duty of taking care o f the pupil with regard to the physical and mental well-being o f the latter (see figure 1).

Duty of care
Figure 1: The in loco parentis position of the te a c h e r One o f the main pillars of the South African approach to the duties and functions of teachers is the teacher's duty of care in the sense o f protection (not loving care as in the case o f the parent) (cf. Figure 1).Not only is this approach in line with section 28(2) of the South African Constitution which determines that the best interests o f the child "are o f paramount importance in every matter concerning the child" (SA, 1996), but it is also in line with the stipulations o f the United Nations' Convention on the Rights o f the Child.In terms of article 3(1) o f the Convention "the best interests o f the child shall be a primary consideration ... in all actions concerning children" (UN, 1989).Apart from this, article 3(2) o f the Convention stipulates that " State Parties undertake to ensure the child such protection and care as is necessary for his or her well-being ..." South African common law principles stipulate that a parent has the duty "to protect his/her child against danger" by taking adequate care as well as precautionary measures to ensure the child's safety (Botha, 1994:74).Authorities agree on the point that a teacher also has a duty to protect the pupil against dangers.It is, however, necessary to note that the teacher's obligation does not derive from that o f the parent, but should be seen as an original duty and obligation o f the teacher in the unique and autonomous context o f the school.The fact that South African law expects of both parent and teacher to take care of the physical and psychological well-being o f the child when in their respective presence and care, can amongst others be ascribed to the duty o f the state (legislature) to order and regulate life in its territorium to the advantage o f each and every citizen -in this case the child.The duty o f taking care is expressed in the form o f the common law principle o f in loco parentis.
As early as 1925 the South African Appeal Court in Transvaal Provincial Administration v. Coley set the standard by comparing the teacher's duty of care with that o f a prudent father (Transvaal Law Reports, 1925:27).The care which is exacted from the teacher by South African law is that which the diligens paterfam ilias (lit.: the prudent, diligent, careful, circumspect head o f a family; Hiemstra & Gonin, 1986:186) would have taken in similar circumstances.It is not the kind of care which someone would take o f his own affairs, nor that which the man in the street would take -it actually implies care o f a higher dimension.
This viewpoint was confirmed in the supreme court case o f Rusere v.The Jesuit Fathers (SALR, 1970:537).Judge Beck, who presided, said: The duty of care owed to children by school authorities has been said to take such care (sic!) of them as a careful father would take of his children.This means no more than that schoolmasters, like parents, must observe towards their charges the standard of care that a reasonably prudent man would observe in those particular circumstances.
The Judge did not equate the care o f teachers with that o f parents but used parental care as a fo il or standard against which to explain and measure the profound nature o f the care exacted from teachers for children in their temporary custody.The comparison stresses the fact that both parental and teacher care focus on the child as the common object o f concern.
In the supreme court case o f Broom and another v.The Administrator, Natal (SALR, 1966:518), Judge Harcourt referred to English law as the root o f the teacher's duty o f caring for the pupil in his/her in loco parentis position.This case and other cases demonstrate that in the English system o f law the acid test to determine whether or not a teacher's conduct is negligent, is to compare (not equatej the teacher's conduct with that o f a reasonably careful parent in relation to his/her own children.

The right to maintain discipline
The other consequence o f the in loco parentis position o f the teacher is his/her right to exercise authority (see Figure 1).This right traditionally included the right to draft school rules, to administer corporal punishment, to take general disciplinary measures and to expel and or suspend a pupil from school.

School rules
One o f the means at the disposal o f the teacher which enables him/her to maintain discipline at school is the right to draft school rules to regulate pupil behaviour.
Traditionally, this right has never been confirmed by legislation.However, the promulgation o f the South African Schools Act 1996 (section 8) confirms this aspect of the teacher's in loco parentis position (SA, 1996).It stipulates that "a code of conduct for learners ... aimed at establishing a disciplined and purposeful environment" must be adopted (SA, 1996).

Corporal punishment
Sections 10 (human dignity), 11 (freedom and security o f the person) and 30 (the rights o f a child) o f the Interim Constitution of 1993 created the impression that, among other things, no teacher retained the right to administer corporal punishment (SA, 1993).Three years later, the South African Schools Act (SA, 1996) confirmed this impression.Section 10 of the latter unequivocally stipulates that "no person may administer corporal punishment at a school to a learner" (SA, 1996).As a result of this, the traditional common law right o f the teacher to administer corporal punishment on the basis of his in loco parentis position, has statutorily been altered.

Suspension and expulsion
Suspension is the temporary refusal of admission o f a pupil to a school or the hostel o f a school, while expulsion amounts to the permanent refusal o f admission o f a pupil to a school or the hostel o f a school (Oosthuizen, 1994:67).This right of the teacher to maintain discipline in the school environment is also confirmed in section 9 o f the South African Schools Act which stipulates that suspension or expulsion o f a pupil may be considered on grounds o f "serious misconduct" (SA, 1996).
It is clear that, within the parameters o f these legal restraints, teachers are entitled to discipline their charges, on condition that their administration of disciplinary measures is determined by the teaching context in which teachers and pupils (learners) find themselves at school.

C oncluding remarks
The in loco parentis principle has become firmly entrenched as a principle in South African law.It is essentially founded in the responsibility and calling o f the state (and organs of state) to order civil society within its territorium.The teacher's task o f educating the pupil/learner has such momentous dimensions that judges tend to compare (not equate) and measure their task and duties with those o f parents.
The legal position concerning the in loco parentis position o f teachers seems to culminate in this argument o f the comparability o f the duties o f teachers with those o f parents.Philosophical reasoning supplies the more profound rationale for the legal position.Such reasoning proves it to be fallacious to derive the existence o f the school as a societal sphere or relationship from the parental home, or to derive the teacher's educative task from that o f the parent.It is also untenable to equate the educative duties o f teachers with those of parents.On the basis o f the principle o f sphere sovereignty, the structural differences between the family and the school as independent societal spheres have to be respected, and resultantly, their respective focus on the education o f one and the same child.
The duties o f teachers, viz.caring and disciplining, can at most only be comparable with those o f parents, as the in loco parentis principle implies, and not equated with it.