Every school year I receive urgent phone calls from parents who have learned that their child with a disability has been suspended and taken into custody or arrested at school for violating a school rule and have received notice to appear in juvenile court. This is a traumatic experience for parents. Parent learn from school officials that their child has been charged with fighting, a drug offense, possession of a weapon, or some other criminal offense that results in delinquency charges. A child is taken into custody which is the equivalent of an arrest. What can a parent do? I will try to demystify the procedures of school suspension, manifestation determination, and juvenile court proceedings. I will break this summary into three parts because there are several moving parts to these processes and procedures at both school and in juvenile court.
Every school system has a code of conduct that you and your child usually receives at the beginning of the school year. You can also find the code of conduct on the school system’s website. School systems generally have similar codes of conduct but they are not all the same. You should become familiar with the school system’s code of conduct at the beginning of the school year and it sometimes changes. You should become aware of you child’s rights and responsibilities as you never know what will happen during the school year. This is particularly true if your child has had previously behavioral challenges and disciplinary referrals. The IDEA provides that a child charged with a delinquent offense can be referred to juvenile court or state court for prosecution even if the conduct that gave rise to the offense was a manifestation of your child’s disability. 20 U.S.C. 14115(k)(6). This has been the rule since the 1997 Amendments to the IDEA. Some school systems have the reputation of using this provision punitively. In any case, school schools have this discretion and most exercise it without any hesitation.
If your child violates certain rules of the student code of conduct they can be suspended from school and face a disciplinary panel or tribunal. Obviously chewing gum in class is different from bringing a knife to school. School systems will suspend a child with a disability and recommend a disciplinary tribunal or panel for serious offenses (e.g. fighting, weapons, drugs, sexual assault, etc.), and also file delinquency charges against the child. Delinquency offenses are simply violation of criminal laws. A child can be charged with the same criminal offense as an adult. For example, an adult can be charged with fighting which may result in a criminal charge of simple battery, disorderly conduct or affray. This charge is brought in state court. Similarly, a child can be charged with simple battery at school for fighting which will result in a delinquent charge of simple battery, disorderly conduct, or affray and charged in juvenile court. A child under the age of 17 years old is charged with delinquent offense. A child over the age of 17 years old – even if they are still attending high school – is charged in state court for misdemeanor offenses, which are offenses that carry a sentence (in most cases), of a maximum of 12 months in jail and $1,000. fine. In juvenile court, if the child admits the offense or is adjudicated at a trial, he can receive anything from an informal adjustment, which is the least severe disposition, to incarceration at a Youth Detention Center. Disposition for minor offenses usually result in probation for up to two years. If a child is charged with a felony such as possession of drugs of weapons at school (e.g. violation of Georgia Controlled Substance Act or Violence of School Act), the consequences may be more severe but it depends upon the prior delinquent record of the student and nature of the charged offense among other things. You should keep in mind that the juvenile court has wide discretion. The disposition of the case depends upon the particular circumstances of your child’s case.
If your child is charged for violating a student code of conduct that results in a delinquent offense, your child is entitled to an attorney. If you are indigent, the court must appoint an attorney for your child. The same is also true if your child who is over 17 years old is charged with a criminal offense. If you are indigent then the state court must appoint an attorney for your child. If you are not indigent or otherwise entitled to a public defender or court appointed attorney, then my recommendation is to retain an attorney for both the school disciplinary hearing, and either state court or juvenile court proceeding. The attorney should be knowledgeable about criminal law, special education law, and juvenile court proceedings. There are not many attorneys who meet these qualification. In fact, there are probably very few. If you cannot find an attorney who meets these qualifications then try to find an attorney who can handle the disciplinary proceedings and manifestation at school and a criminal defense lawyer that can handle your child’s case in either state or juvenile court.
The school disciplinary tribunal or hearing and manifestation determination will occur within 10 school days of the offense. Juvenile court proceedings have specific timelines for arraignment and trial or disposition. The timelines for juvenile court can vary from case to case depending upon the circumstances. For instance, the juvenile court may schedule an arraignment within 45 days of the charge at which time the child must enter either an admission or a denial of the charge. But I would not rely upon the 45-day timeline in every case. A child over 17 years old must appear in state court for an arraignment. The scheduling of the arraignment in state court will vary depending local jurisdiction and court scheduling. In other words, the time lines for juvenile court are shorter and for this reason hiring a lawyer sooner than later is advisable.
For Part Two of this post, I will discuss the procedures for school disciplinary hearing and manifestation determination meetings for children with disabilities served under the IDEA and Section 504 of the Rehabilitation Act.