What you should know about Georgia law as your child turns 21 years old

April 11, 2012

Once your child reaches the age of 21, he or she may legally drink in Georgia, is no longer entitled to a free secondary education and is no longer subject to special traffic laws for drivers under 21.  Once your child turns 21, her driver’s license can no longer be suspended for certain specified violations or one conviction that carries 4 points; rather, she will be treated like other licensed drivers 21 and older, and will be able to accumulate 14 points every two years before her license will be suspended on the basis of points upon reaching 15 points.  Of course, driver’s licenses can be suspended for certain offenses in addition to accummulating 15 points in a two year period.

What laws apply to your 18-year-old

April 3, 2012

When your child reaches his or her 18th birthday, he or she is legally emancipated.  This means that she will be treated as an adult under the law, except for laws involving the consumption of alcohol.  Thus, the contracts (including leases) she enters into are valid and binding on her and she can do a number of things without parental consent:  marry, move out of the house, enter the armed forces, obtain an abortion and retain her own wages.  18-year olds are also entitled to change school districts or withdraw from school on their own.   Once they turn 18, they are no longer subject to the state’s child welfare laws and do not have to remain in foster care.  They are also entitled to vote in local, state and federal elections, if they satisfy other criteria such as having a valid state-issued i.d.  However, because they are still considered relatively new drivers, 18-year-olds can still have their driver’s licenses suspended for certain specified convictions (which are the same as  for those under 21) or for accumulating 4 or more points in a twelve-month period.  They are also now eligible age-wise, to apply for a regular Class C driver’s license.

What you should know about the law and your 17-year-old

April 3, 2012

When your child turns 17, she can obtain a class D driver’s license without having taken or passed driver’s ed.  She must have a valid instruction permit which is not under suspension and have not been convicted of specified violations in the previous 12 months prior to applying for the license.  She is also now considered an “adult” for criminal purposes.  She cannot vote or withdraw herself from school or change school districts without the consent of her parent/legal guardian.

A word about school and driver’s licenses:  if a child less than 18 years of age withdraws from school without being home-schooled or enrolled in a GED program or having earned a high school diploma or equivalent, she will not be able to obtain a learner’s permit or driver’s license.  Further, if a child under 18 has dropped out of school without graduating and has been out of school for 10 days in a row, or has at least 10 unexcused absences in the current or previous academic year or has violated certain specified school conduct rules (such as possessing or selling drugs or possessing a weapon on campus or at a school event, certain sexual offenses, or threatening, hitting or causing personal injury to a teacher or other school staff, or “causing substantial physical or visible bodily harm to or seriously disfiguring another person”), her driver’s license (or learner’s permit) will be suspended.  The child will receive an official notice from DDS and, if she does not send a written request for a hearing within 10 days of receipt of the notice, her permit/license will remain suspended for a year, unless certain exceptions apply.

What to know when your child turns 16

March 20, 2012

When your child turns 16, she is no longer required to attend (public, private or home) school, as Georgia’s compulsory school attendance law only applies between her 6th and 16th birthdays. If, however, she has a truancy problem, she will need you to withdraw her from school since she will not be legally “emancipated” until she turns 18. If you don’t withdraw your truant child, and she has accumulated roughly seven unexcused absences before her 16th birthday, both of you could come under court supervision (like probation with conditions such as community service, attending school regularly and reporting in to a probation officer) for some period of time and, as her parent, you could face a misdemeanor charge and/or a fine between $25-$100, up to 30 days of jail and/or community service.

With respect to driving privileges, if your 16-year old has successfully completed an approved driver education class and meets all of the other requirements (aside from age), he can get a class D driver’s license. Class D driver’s licenses are quite restrictive. A class D driver’s license holder may NOT: (1) drive between midnight and 6:00 AM; (2) drive at any time when more than three other passengers in the vehicle who are not members of the driver’s immediate family are less than 21 years old; (3) drive with anyone who is not a member of his family during the 1st six months after obtaining the class D license; (4) drive with anyone who is not a member of his family and who is under the age of 21 during the 2nd six months after obtaining the class D license.

Sixteen also is the age of (sexual) consent.

My child’s after school care program won’t agree to do any diabetic care for my child, who has Type I diabetes. Doesn’t the program have to make “reasonable accommodations” under the Americans with Disabilities Act?

February 19, 2012

The U.S. Department of Justice (“DOJ”) is tasked with enforcing the Americans with Disabilities Act (“ADA”) in connection with government-run and privately-run child care centers, including before and after school care programs.  Click to read the DOJ’s guidance on this topic.  In addition, the American Diabetes Association has a number of “Safe at School” resources.

Both the ADA and Section 504 of the Rehabilitation Act (“504”) address reasonable accommodations of diabetic children, and the legal standards under the ADA and 504 are usually analyzed the same.  Legally, what you would have to show is that your child is a person with a disability, that he is “otherwise qualified” for participation in the after school program and that he has been excluded from participation in or denied the benefits of that program or otherwise subjected to discrimination by reason of his disability.  In addition, to bring a claim under 504, you would need to show that the after school program receives federal funds.  These first legal hurdles are concerned with whether the after school program violated the ADA and 504 by failing to accommodate your child’s requests for diabetic care accommodations.  However, the analysis does not end here.

The next thing that you would have to show is that the after school program was “deliberately indifferent” to the disability discrimination alleged to exist.  If you could not show this, then the after school program would have no liability for money damages, which would mean it would have no real legal incentive to agree to the requested accommodations.    The deliberate indifference standard requires more than negligence or heightened negligence.  An after school program will be found to be deliberately indifferent when it acts with “conscious disregard” for a participant’s rights.  To show conscious disregard, you have to show that: (1) the after school care program actually knows that its actions will violate the participant’s rights; or  (2) such a violation is the “plainly obvious consequence” of the after school care program’s actions.

Therefore, in a failure-to-accommodate case, to establish the after school program’s deliberate indifference, you would first have to show that (1) you requested the accommodation; and (2) it was plainly obvious that the accommodation was reasonable and necessary.  In addition, if the after school program raised certain defenses under the ADA and/or 504, such as that making the accommodations would impose an undue burden on or would fundamentally alter the program, you would then have to show that it was “plainly obvious” when you requested the accommodation that it would not have created an undue burden on or fundamentally altered the after school program.  To put it another way, you would have to show that it was plainly obvious that these defenses would fail.  And, as at least one federal case concluded, if the after school program reasonably could have believed that the defense would succeed, it would not be liable for money damages.

In a recent case involving a public school student with Type I diabetes, Peterson v. Anoka-Hennepin Independent School District No. 11, 538 F. Supp. 2d 1125 (D. Minn. 2008), the  the parents of AP, a child with Type I diabetes, tried to enroll AP in an after-school program run by the school district.  The parents made three main requests for accommodation.  They asked the school district to provide staff that were trained and willing to (1) check AP’s blood sugar, which required operating his blood-glucose meter; (2); operate his insulin pump; and (3) give glucagon injections in the event of a hypoglycemic emergency.  The school district refused to provide any of the accommodations.

The school district asked the court to dismiss the case by filing a motion for summary judgment on the “deliberate indifference” standard.  The Minnesota federal trial court granted the school district’s motion as to the request to give the glucagon injections because it found that no reasonable jury could find that (a) it was “plainly obvious” that the glucagon injection request was a reasonable accommodation; or (b) it was “plainly obvious” that the glucagon injection request would not have placed an undue burden on the school district and would not have fundamentally altered the after school program.  The school district had presented evidence that Minnesota guidelines discourage school personnel, who are not supervised by school nurses, from giving glucagon injections, that giving glucagon injections is “at least modestly complicated”, that an unsupervised layperson should not give a glucagon injection and that it believed that it would have to hire a nurse for the after school program to give the requested glucagon injection.

However, the court found that the school district was not entitled to having the claims pertaining to the meter and pump operation dismissed on summary judgment because “both of these requested accommodations were almost certainly reasonably and almost surely would not have imposed an undue burden on [the school district] or fundamentally altered the” after school program.  The court also found that a reasonable jury could find that it was “plainly obvious” that the school district should have granted the requests and that doing so would not have been unduly burdensome.

The federal appeals court that governs cases arising in Georgia (the 11th Circuit) has not decided whether the “deliberate indifference” standard applies to civil money damages claims under the ADA and 504, or whether a more stringent standard applies, such as “discriminatory animus”.  Some recent cases have assumed that the deliberate indifference standard applies.  Litigants in Georgia can safely assume for the time being that they would have to show at least as much as AP had to show in MN, since that court applied the deliberate indifference standard.

State university did not violate graduate student’s free speech or free exercise rights

February 17, 2012

A recent decision issued by the federal appeals court that hears appeals from federal trial courts in FL, GA and AL looked at whether a state university had violated a student’s First Amendment rights regarding speech and religion when it required a graduate student to participate in a remediation plan prior to participating in a clinical counseling practicum.

The case, Keeton v. Anderson-Wiley, No. 10-13925, 2011 WL 6275932 (11th Cir. Dec. 16, 2011), involved a Christian graduate student (Jennifer Keeton) in Augusta State University’s (“ASU”) master’s degree in school counseling program who held certain beliefs about the LGBTQ population (e.g., that the LGBTQ population suffers from identity confusion, that sexual orientation is a personal choice, that gender is fixed and binary) and had stated she would refer counseling clients from that population to someone who practices conversion therapy if she could not convince them to change their behavior.

ASU’s position was that it was required to adopt and teach its school counseling graduate students the tenets of the American Counseling Association’s (ACA) Code of Ethics to maintain its accreditation by the Council for Accreditation of Counseling and Related Educational Programs and that the remediation plan was necessary so that Keeton could learn how to comply with the ACA Code of Ethics.  Keeton alleged that ASU violated her First Amendment rights by discriminating against her viewpoint, by retaliating against her for exercising her free speech rights, by compelling her to express beliefs she did not agree with, and by violating her free exercise of religion rights by requiring that she comply with the ACA Code of Ethics.

Keeton filed a lawsuit and asked the trial court to enjoin ASU from dismissing her from the graduate program if she refused to participate in the remediation plan.  The trial court denied her motion for a preliminary injunction and the 11th Circuit affirmed.  Perhaps one of the best quotes that sums up the outcome of the case is:  “Keeton does not have a constitutional right to disregard the limits ASU has established for its clinical practicum and set her own standards for counseling clients in the clinical practicum.”

An even more recent case from the Sixth Circuit Court of Appeals, Ward v. Polite, Nos. 10-2100, 10-2145, 2012 WL 251939 (6th Cir. Jan. 27, 2012), looked at similar issues and resulted in a different outcome.  To read the full opinions in either case, click on the case name:  Keeton v. Anderson-Wiley or Ward v. Polite

 

Will I be kicked out of school if I’m adjudicated with a felony in juvenile court? Don’t I have a right to a public education?

January 29, 2012

If you were expelled or suspended for being convicted of a felony (in criminal court), being adjudicated to have committed a felony or any delinquent act under O.C.G.A. §15-11-28 which, if it were committed by an adult, would be a felony, or for being indicted for same, your school board can refuse to re-enroll you and can refuse to let you attend an alternative educational program.  O.C.G.A. §20-2-768(a).  And, if you try to enroll in another school outside your district, that district can refuse to enroll you.

Note that if you are under an IEP, you have the right to a “Free Appropriate Public Education”, or FAPE, and your school board cannot take away all educational services provided to you.

 

What should I do if the school board schedules a student disciplinary hearing to hear charges that my child violated a school code of conduct rule?

January 5, 2012

If the school board schedules a disciplinary hearing, it means that your child’s school principal has recommended that your child be suspended for more than 10 days or expelled, or your child is alleged to have committed an assault or battery upon a teacher, other school official, or school employee and that teacher, school official or school employee requests that a disciplinary hearing be held. At a minimum, you should: (1) review your child’s school’s “student code of conduct” for information on the rule your child allegedly violated; (2) review the letter notifying you of the student disciplinary hearing for information on how to obtain copies of the documents your child’s school will use against your child at the hearing and obtain copies of all statements and evidence the school will use at the hearing; (3) review the code of conduct and/or the school’s letter for information about any deadlines for notifying the school that you will be bringing an attorney to the hearing, if that is what you plan to do.

If your child is alleged to have violated a school rule that is also a criminal offense, it is highly recommended that you seek advice from an attorney familiar with school law, juvenile law, and, depending on the nature of the alleged offense and/or your child’s age, criminal law, so that additional evidence is not created at the school hearing that could be used against your child in a juvenile delinquency/criminal proceeding.

Note, that if your child is under an IEP, the hearing will be split into two parts, the “adjudicatory”, or “guilt” phase, and then a “Manifestation Determination” to determine whether the alleged rule violation was directly and substantially related to your child’s disability or was a direct result of the school’s failure to implement the IEP.

It is illegal for my child’s school to take photographs of her bottom without first advising me or allowing me to be present?

January 5, 2012

No.  Under Georgia law, school teachers, school administrators, school guidance counselors, visiting teachers, school social workers and school psychologists are required to report child abuse under certain circumstances.  See generally O.C.G.A. §19-7-5.  That is, where they have “reasonable cause to believe that a child has been abused”, they must “report or cause reports of that abuse to be made” as set forth in O.C.G.A. §19-7-5.  See O.C.G.A. §19-7-5(c)(1)-(2).  “Child abuse” is defined in relevant part as “[p]hysical injury or death inflicted upon a child by a parent or caretaker thereof by other than accidental means; provided, however, physical forms of discipline may be used as long as there is no physical injury to the child”.  O.C.G.A. §19-7-5(b)(3)(A).  In connection with reporting the suspected child abuse, the statute specifically states:

Photographs of the child’s injuries to be used as documentation in support of allegations by . . .  school officials . . . may be taken without the permission of the child’s parent or guardian.  Such photograph shall be made available as soon as possible to the chief welfare agency providing protective services and to the appropriate policy authority.

 O.C.G.A. §19-7-5(e).