2016-2017 Edition of Legal Rights of Children 3d is Now Available

2016-2017 edition of Legal Rights of Children 3d is now available

What’s New

With this 2017 Edition of Legal Rights of Children, you will find the same comprehensive, up to date treatment of the law affecting children which continues to be unmatched since the first edition of this work was published several decades ago. Noteworthy changes in this present edition include:

1.         A new section on child labor and the family.

2.         A new section on Title IX and student accommodation.

3.         Supplementation of the scope and coverage of many sections

            throughout the work.

4.         Comprehensive updates on new legislation and case law

I thank those who have purchased this book and continue to hope that it assists you in your important work, in whatever manner that work affects or is related to the legal rights of children. Additionally, I strongly encourage lawyers, judges and legal scholars to feel free to offer any suggestion that would make this work more useful to you.

Donald Trump, Hillary Clinton and Post Election Student Protest

   With the conclusion of a divisive election cycle, student protest, both for and against the election of Donald Trump and others this election cycle, is now part of the daily headlines. Some of this protest is occurring during the school day-during school hours-and on school property. With schools more than ever being held accountable for student outcomes, it seems inevitable that the patience of school principles and school system administrators will increasingly grow thin. With this there will likely be a flurry of sanctions imposed on protesting students only to be followed by inevitable litigation over the balance between First Amendment speech rights and the right of a school to maintain discipline and to preserve a positive learning environment.
   The fundamental right of students to engage in non-disruptive political protest on school grounds has been firmly upheld by the Supreme Court by such cases as Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed 2d 731 (1969) (Court upholds student protestors rights to wear black armbands to protest Vietnam War) and its progeny. However, it has been equally established by the lower Circuits that schools may restrict even highly protected individual student expression when that expression materially and substantially interferes of school discipline, the work of the school, or the rights of other students. See e.g. Henerey ex rel. Henerey v. City of St. Charles School Dist., 200 F.3d 1128, 141 Ed. Law Rep. 95 (8th Cir. 1999). The critical issue in any inquiry involving student speech or protest is whether the act would substantially disrupt the activities of the school. Where this has occurred, the courts have extended considerable latitude to school officials and administrators to either restrict or prohibit the disruptive activity. See Westfield High School L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98, 175 Ed. Law Rep. 506 (D. Mass 2003)( School administrators act denying distribution of literature that was deemed disruptive upheld); Riggan v. Midland Independent School Dist., 86 F. Supp. 2d 647, 142 Ed. Law Rep. 836 (W.D. Tex. 2000) (student conduct that is materially disruptive not immunized by First Amendment).
   Thus it is fundamentally clear that student walkouts in the middle of the school day, student protest that has at its core denunciation of one party or another, and student vandalism--in short, all the things that have been transpiring across the United States for the past week -- all fall within the scope of administrative regulation. For now, the students have won the sympathy of those in charge. But when protest and non-attendance start disrupting the school day, when academic scores and school standings decline, and persistent offense become a regular feature of the American educational landscape, the tide of sympathy will most certainly turn against these protestors. At the end of the day, the integrity and productivity of the educational system will be held to be the paramount value, eclipsing the subjective unhappiness of many of the students that make it up. And it will again be the job of the American court system, like it was in 1969,  to sort it all out again.

Verification of Pleadings, Notary Error, and the Presumption of Appropriate Performance

   It is crucial to properly verify juvenile petitions and motions seeking to terminate parental rights. If any one should doubt this admonition, they need only reference the decisions of the North Carolina Carolina Supreme Court in recent years which have repeatedly tied subject matter jurisdiction to this ministerial act. Take for instance the Court's 2006 decision in In re T.R.P, 360 N.C. 588,
636 S.E.2d 787 (2006)), where the Court was confronted with a juvenile petition that was "notarized, but was neither signed nor verified by the Director . . . or any authorized
representative thereof. Id. at 589, 636 S.E.2d at 789. Noting not just the importance of the verification process to confer proper jurisdictional authority upon a trial court, the Court also emphasized that verification had a safekeeping function where the General Assembly ensured through the verification requirement  “that our courts exercise their power only when an identifiable government actor ‘vouches’ for the validity of the allegations." Id. at 592, 791.
    Fast forward eight years later and the issue still carries the same potency-where a petition is not verified, the Court still maintains the petition to be void ab ititio. But what if the petition was verified but there were defects with the verification process?  In its March 2016 opinion in the Matter of N.T
_N.C.__,__S.E.2d (March 18, 2016), the Court was confronted this very problem. Unlike the scenario in T.R.P., an official had verified a signed petition but the signature of the verifying official was illegible and lacked any indication of the officials title. The Court of Appeals had determined that these defects deprived the trial court from obtaining subject matter jurisdiction. In re N.T., __N.C. App.__, 769 S.E.2d 658 (2015). Not the case, announced the higher court. In its decision reversing the Court of Appeals,  the Supreme Court distinguished T.R.P. from the facts of N.T.: it wasn't that verification didn't occur but rather there was a challenge to the authority of the verifying official to perform the act of verification. As such, the Court made it clear that “[g]enerally there is a presumption that a public official in the performance of an official duty acts in accordance with the law and the authority conferred upon him." Moreover, the Court continued, " [t]he burden is upon the contesting party to overcome this presumption.” In re N.T., at ___ citing State v. Watts, 289 N.C. 445, 449, 222 S.E.2d 389, 391 (1976) (citations omitted).
      While subject matter continues to be absent where unverified petitions or motions that are filed with the trial court, it seems that the Supreme Court intends to narrowly focus its holding on the subject to facts that actually suggest that the verification process did not occur. Where there are defects with the process itself (i.e. illegible signature, boxes not checked, expiration of notary commission not present), the official acts of a verifying official are subject to a presumption of administrative appropriateness. Unless this presumption is overcome, the act stands, is presumed appropriate, and subject matter jurisdiction will be found to have accrued to the trial court.

 

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