The Supreme Court got it right today when it ruled that school districts cannot punish students for off‐​campus speech, at least speech that is not conducted during school activities, using school resources such as a computer, or that is clearly threatening. If government – which is what public schools are – can punish students for anything they say or write off‐​campus about schools, even crass things like the student’s speech at the heart of this case, it clearly hands government too much power.

What is more interesting than the ruling itself is the crucial aspect of education that the ruling only dabbles in: voluntarism.

A fundamental problem with public schooling is that supporting it, and hence attending public schools, is not truly voluntary. You must pay for public schools, and your children must receive education for a set number of years, or you go to jail. So while attending a public school is technically voluntary, the reality is that government powerfully pulls kids towards public school doors.

What is interesting is that we assume public schools act in loco parentis; parents give over some of their authority to the schools while their children are there. But in his concurrence, Justice Alito has an interesting little discussion of the legal history of in loco parentis. Basically, it appears to have come from voluntary – chosen – educational arrangements in which parents could not monitor their children. Writes Alito:

Under the common law, as Blackstone explained, “[a father could] delegate part of his parental authority … to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, [namely,] that of restraint and correction, as may be necessary to answer the purposes for which he is employed.” 1 W. Blackstone, Commentaries on the Laws of England 441 (1765) (some emphasis added).

Blackstone’s explanation of the doctrine seems to treat it primarily as an implied term in a private employment agreement between a father and those with whom he contracted for the provision of educational services for his child, and therefore the scope of the delegation that could be inferred depended on “the purposes for which [the tutor or schoolmaster was] employed.”

This raises a key question regarding public schools: How legitimate is any action that they take on the grounds that they act in loco parentis if the concept requires that parents voluntarily give them authority? The original concept clearly made parents the decision‐​makers, but we have substituted government control for that. That seems to abrogate in loco parentis.

The relatively easy way to become much more consistent with in loco parentis than our current system is school choice. Give parents control of funding, which would maintain government assurance of education while making actions of educators much more reflective of what parents voluntarily agree to.