School Days, School Days, Good ‘Ole Golden Rule Days

So be true to your school now

Just like you would to your girl
 (or guy)     

Be true to your school now

And let your colors fly

Be true to your school

~Beach Boys

 “Be True to Your School”

It’s back to school time! In suburban Chicago, many students have already been back at school for more than a week. For me, this year is bittersweet because it is my younger daughter’s last year in high school.

Our educational system is intricately intertwined with the law. For about 13 years of our lives—kindergarten through 12th grade—the law dictates how we spend most of our waking hours nine months out of the year. Laws govern how old we must be to attend school and where we attend school. We might attend a public school or a private school; we might be home schooled. Teachers must be licensed.

Laws affecting education may be federal, state or local. The highest authority of federal law is the U.S. Constitution, and the Tenth Amendment defines the federal government’s role in education. The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Huh? Where’s the part about schools?

This is definitely a case of reading between the lines or looking at what the Constitution doesn't say. The U.S. Constitution does not give the federal government the authority to establish and oversee education, and it does not prohibit the states from creating their own public education systems. Therefore, the responsibility for education is reserved to the states or the people.

If the federal government doesn’t have the power to oversee public education, then why do we have the U.S. Department of Education? What does the Department of Education even do? Let's first look at the history of the Department of Education. It has been a part of the Executive Branch since 1867, but it did not become a cabinet level agency until 1980. Even now, it's the smallest Cabinet-level department. 

Its stated mission is to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access.

Why do we have a federal agency devoted to education, and what does it do? According to their website (www.ed.gov), the Department of Education carries out its mission in two major ways:

1. Playing a leadership role in the ongoing national dialogue over how to improve the results of our education system for all students—raising awareness of the educational challenges confronting the nation, disseminating the latest discoveries on what works in teaching and learning, and helping communities work out solutions to difficult educational issues.
2. Administering programs that cover every area of education.In plain language the Department of Education cannot create laws affecting the provision of education unless it is providing financial backing to the schools for federal programs.

It’s a tactic that the federal government uses to regulate aspects of our lives that they don’t have the power to regulate directly. Remember all the discussion about “No Child Left Behind” about a decade ago? The reach of this piece of legislation, which President Bush considered one of his greatest achievements (at least in relation to education), was limited by money. It affected schools that received federal funds. Of course, that pretty much included all public schools, but rather than adhere to the rigid and sometimes unrealistic standards of the legislation, many schools and school districts decided not to accept federal funds.

Still, the federal government's reach isn't completely limited by the Tenth Amendment. When fundamental rights are involved--free speech, freedom of religion, unreasonable search and seizure, cruel and unusual punishment, due process and equal protection--the federal government can step in to protect those rights for its citizens.

An Offer You Can't Refuse or Happily Ever After?

I don't care whose fault this was,

 just get it sorted!
And could someone please bring me something
deep fat fried and smothered in chocolate?
~Fairy Godmother, Shrek 2

Decisions, decisions, decisions ... expecting parents have a lot of decisions to make. What will you name your child? Will you need child care so both parents can work? What color should you paint the nursery? Who will be the godparents? Admittedly, not everyone selects godparents. My children don't have godparents. And, I'm not a godparent to anyone else's children.

Much of what we know about godparents comes from popular culture. Cinderella had a fairy godmother. Fiona's fairy godmother tried to break up Shrek and Fiona so Fiona could marry her son, Prince Charming. Vito Corlione was "The Godfather," the leader of the Corleone crime family – the most powerful Mafia family in New York City.

Television sitcoms depict the difficulties of selecting godparents. In recent episodes of both How I Met Your Mother, "Who Wants to Be a Godparent," and The New Normal, "The Godparent Trap," couples try to decide who should serve as godparents for their child.

What is a godparent? A common misconception is that the godparents are expected to step in to raise a child if both parents die. In fact, being named "godparent" gives you absolutely no legal standing.

Godparents are often selected for religious reasons. In some Christian denominations, the godparents are present during the baptism or christening. Along with the parents of the child, the godparents are tasked with helping to guide the child's religious path, promising to bring the child up in the Christian faith.

While the term "godparent," is largely confined to the Christian religions, other religions have similar roles. Additionally, the modern secular view of a godparent tends to be an individual chosen by the parents to take an interest in the child's upbringing and personal development. Google "aetheist godparent equivalent," and you will find discussions that typically start with, "I like the idea of godparents, but not for religious reasons."

What happens to the children if both parents die? Even if there is an understanding that the godparents would take care of a child if the parents died, the naming of godparents, without a will designating the guardian(s), does not hold any legal weight.

Child custody decisions are made in accordance with state law, so there may be slightly different considerations depending on which state the child lives in. Generally, however, the states are uniform in approaching  child custody issues using the "best interest of the chilld" standard. The court will appoint a guardian for the child.

Regardless of whether there is a will or not, the ultimate decision of who takes custody of a child is up to the courts. If there is no will, family members can step forward and nominate themselves to take on the role of guardian. The judge appoints the guardian based on what he or she determines is in the best interest of the child. This is not necessarily the closest relative or the person that the parents would have chosen.

If the parents do have a will, they can and should name a legal guardian for their children. However, the court has final say in the matter. Still, unless there is an obvious issue as to why the named guardian cannot serve, the parents' choice will likely be appointed.

Considerations

If you're the parent of minor children and you want to name godparents for religious reasons, understand that the godparents do not have any legal standing. Instead, you should choose godparents based on who you think shares your values and will help guide your child as he or she grows.

Aside from legal considerations, there are also practical considerations. Many times, parents select different godparents for each of their children. Or, the godparents may not be a couple living together. Since courts generally try to keep siblings together, it is not practical to make custody decisions based on an individual's status as a godparent.

In order to name a guardian for your children, you should make a will naming the person(s) you think will be best able to raise your children if something should happen to you. This may be the same person(s) that you've selected as godparent or it could be someone else. The court still must approve the guardian(s), but your wishes will be taken into account.

If a parent doesn't have a will, friends and family members can step forward and nominate themselves to take on the role of guardian. A judge will determine who is best suited for the job based on evidence as to what is in the best interest of the child. Without your desires being set forth in a will, the issue of custody could be hotly contested among family members or other potential guardians. The ultimate decision may not be what you would have chosen.

If you are asked to be the godparent of a child, you should have an understanding of what is expected of you. Are the parents looking for you to take an active role in the religious education of the child, and, if so, are you comfortable taking on that role? Or, will your participation in the baptism be the extent of your role as godparent? Make sure the parents know that your status as godparent does not mean that you'll take custody of their child if they should die.

Finally, if the parents want to designate you in their will as a legal guardian in the event of their death, you should then carefully consider whether you are willing and able to take on that role. If you decide you are not willing to be a guardian, this allows the parents to find someone else to name as guardian.

Rock-a-Bye Baby

Mommy had. A little baby. 

There he is. Fast asleep.
He's just. A little plaything.
Why not. Wake him up?
Cute. Cute. Little baby.
Little pee pee. Little toes.
Now he's comin' to me.
Crawl across. The kitchen floor.

Baby, baby, 

please let me hold him

I wanna make him 

stay up all night

~Stay Up Late 
Talking Heads

Packed somewhere in the back of my garage, behind boxes full of old baby clothes, is the crib that both of my girls used as babies.

The crib, which came to us second-hand, was top-of-the-line when it was purchased in 1987. Unfortunately, this crib does not meet federal safety standards created by the Consumer Product Safety Commission (CPSC).

Yes, the long arm of the federal government even reaches your baby's crib.

My question is whether or not I can sell or donate my now 27-year-old drop-side crib.

Consumer Product Safety Commission. Like the post office, the CPSC is an independent agency of the U.S. government. It was created in 1972 by the Consumer Product Safety Act (CPSA). Specifically, if the CPSC finds an unreasonable risk of injury associated with a consumer product, it can develop standards to reduce or eliminate the risk.

It's probably not a surprise that many of the products for which the CPSC has created standards are made for infants and children. In addition to cribs, the CPSC has developed standards for play yards (a/k/a playpens or pack-and-plays), car seats, high chairs, baby swings, strollers, clothing, toys, etc.

More recently, the Consumer Product Safety Improvement Act (CPSIA) of 2008 amended the CPSA to provide CPSC with significant new regulatory and enforcement tools. CPSIA pays particular attention to children’s products, including cribs.

Cribs. Standards for baby cribs were first established in 1973, just a year after the creation of the CPSC. Since then, the agency has amended its standards to reduce the number of infant deaths resulting from crib design issues. In the early 1970s, before crib standards were developed, 150 to 200 babies each year died in crib-related incidents. By the year 2000, that number had decreased to about 35 per year. By 2004, that number had further decreased to 20 crib-related deaths per year.

The drop-side design is particularly troublesome because a baby could suffocate by getting his or her head trapped between the side and the mattress. Initially, the CPSC allowed retrofit kits that would immobilize the drop side, but discovered that often the retrofits were incorrectly installed and did not solve the problem. Over the course of nine years, 32 infant fatalities occurred due to entrapment in drop-side cribs.

In December 2010, the CPSC voted to approve new standards for cribs. Most of the cribs currently on the market, particularly drop-side cribs, would not meet these new standards. As of June 28, 2011, all importers, distributors, manufacturers, and retailers must offer only cribs that meet the CPSC's new and improved full-size and non-full-size crib standards. Some of the new mandatory rules for cribs included: (1) stopping the manufacture and sale of dangerous, traditional drop-side cribs; (2) strengthening mattress supports and crib slats; (3) requiring crib hardware to be more durable; and (4) making safety testing more rigorous.

Additionally, the CPSC cautions parents and caregivers not to use cribs older than 10 years or broken or modified cribs. Infants can strangle to death if their bodies pass through gaps between loose components or broken slats while their heads remain entrapped. Moreover, the CPSC does not believe that a crib currently in use can be retrofitted and tested to show compliance with the new crib standards, so retrofits no longer meet standards.

For more about the CPSC crib standards, see The New Crib Standards Questions and Answers.

The use of cribs outside the home. Childcare providers had until December 28, 2012, to provide cribs that meet the crib requirements. This includes child care centers, foster homes, churches, hospital facilities, family child care homes, and places of public accommodation, such as hotels and motels. After that date, places of public accommodation may no longer use traditional drop-side cribs or noncompliant cribs and must use cribs meeting the new federal safety standards. Parents should check that their child care provider is using a crib that meets standards.

Exceptions to this rule include in-home care in the child’s own home or care provided by the child’s relative, foster home care provided for child 24/7 that is a private residence and child care arrangement in which volunteers provide care, e.g., during church service

I volunteer in my church nursery during church services, so I paid particular attention to the application of the standards to churches. Here's the rule: If a church owns or operates a child care facility and pays a person or people to care for children, that child care center is covered by the CPSC’s crib rule. However, if the child care arrangement at a church involves parents (or others) volunteering to care for children during church service (and no one is paid to care for the children), this arrangement is not covered by the crib rule.

Pssstt ... Wanna buy a used crib? Don't do it. A consumer (parent, childcare provider or anyone else who has an old crib) should not resell, donate or give away a crib that does not meet the new crib standards, such as trying to resell the product through an online auction site or donating to a local thrift store. The CPSC recommends disassembling the crib before discarding it.

So bottom line, no matter what condition I think my old crib is in, the responsible thing to do is to put it out with the trash.

For more information on the federal requirements, check out this poster from the CPSC: A SAFER GENERATION OF CRIBS: New Federal Requirements

Laws Laws Everywhere Laws

There seems to be a law that governs all our actions so I never make plans.

Greta Garbo

Have you ever thought about how pervasive the law is in our lives? 

• When you woke up this morning, did you turn on a radio? Or a TV? The federal communications commission regulates the content that we hear on the radio, as well as the content we see (and don't see) on our televisions. 
• Did you drive your car? State laws determine who may be licensed to drive a car. State and local laws set speed limits and other traffic laws. 
• Do you have your garbage picked up? Local ordinance governs when and how my garbage should be put at the curb. 
• Did you stop and buy coffee this morning? You probably paid sales tax.
• Do you have school-aged children? The federal department of education enforces regulations governing the services that children receives at school.
• Do you have a job? The federal department of labor enforces regulations affecting your employment, and the Internal Revenue Service (an agency of the federal department of the treasury) gets its cut of your paycheck.

The examples I've listed are just the tip of the iceberg. Each of those examples interact with other laws and layers of laws. Our paychecks not only show deductions for federal income taxes, but also state income taxes. The sales taxes on that cup of coffee are not just county taxes, but also state sales taxes. 

I went to law school. I studied the standard array of topics: torts, contracts, property, criminal procedure, civil procedure and constitutional law. I also studied more specialized topics, such as administrative law, family law, business law, conflicts of law, agency law, products liability and wills and estates. I learned legal research and writing. I participated in moot court.

Then, I took the bar exam in Illinois, and I passed. I got a job with a legal publisher, and I've worked there for more than 20 years now. In the beginning, I worked on a product that reported on aviation law. I transferred to another department and worked on a computer law product. I also audited an intellectual property class at the local law school. Somehow, I ended up reporting on tax law. I've now been doing that for 18 years.

A little over 21 years ago, I became a mother, never realizing how much I would use my law degree as I raise my two daughters. I learned how child care facilities are licensed and regulated. Later, I had to learn some family law. As my daughters grew, it also became necessary to learn about special education law and No Child Left Behind.

Most importantly, however, I know how to find the information that I need. I love to research to find the answers to my questions, and I understand how laws fit together like a puzzle.

That brings us to this blog. I want to use my skills as a researcher to explain the laws that we encounter everyday. Sometimes, the law doesn't seem fair. Sometimes, it doesn't seem right. But, the law is the law, and my goal is to clarify law for the average person. Sitting in meetings with my child's teachers, I've sometimes wondered, how difficult it must be for the average parent who doesn't have a law degree to negotiate for special services. 

It is for these reasons that I plan to use this blog to look at the wide variety of laws that most of us, encounter every day. Please feel free to post comments with ideas.