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Robin D. Poston wanted her sister’s three children to attend an elementary school near her Stone Mountain, Ga., home because they were living with her. Poston informally arranged to care for the children, whose mother is in Indiana and drug-dependent. But DeKalb County says the informal arrangement does not justify enrolling the children in the county’s schools. And a federal judge agrees. Last Wednesday, U.S. District Court Senior Judge Charles A. Moye Jr. vacated a temporary restraining order that had allowed the children to attend the DeKalb County elementary school near their aunt’s home while their mother remained in Indiana. Moye’s ruling affirmed the DeKalb County School District’s right to bar any child from attending a county public school if a parent or legal guardian does not live in the county, even if the child is actually living there with a caretaker, Poston v. DeKalb County School District, No. 1:00-cv-2358 (N.D. Ga., Nov. 8, 2000). “This is not new,” says Decatur, Ga., attorney Gary M. Sams, a partner with Weekes & Candler who represents the DeKalb County Board of Education. “This is what we thought the law was forever. You had to be a resident of the county to go to school here. … We were surprised when the suit was brought. We were certainly not surprised by the ruling. It just validated what we understood the law to be.” GUARDIANSHIP OPTION But Sams says the children, who have been attending a DeKalb elementary school since August when Moye issued his temporary restraining order, will not be summarily removed from school. “We certainly would give the aunt the opportunity to go down and apply for guardianship,” Sams says. “We’re going to give her reasonable time. But reasonable time is not the rest of the year.” Elliott Schwalb of the Georgia Legal Aid Society, who represented Poston on behalf of the three children, declined to comment, citing Poston’s reluctance and an agreement that he said his supervisor had with DeKalb County not to discuss it. The supervisor, Ashley Carraway, did not return telephone calls. According to Moye’s order, Poston’s sister’s children are living with her indefinitely. Poston and her husband already have adopted nine other children — six belonging to a sister who was murdered and three belonging to another sister who abandoned them six years ago. The three most recent children moved in with their aunt and uncle shortly before school began last August. But school officials told Poston that the children could be enrolled only by a parent or legal guardian who lived in the district. That prompted Poston to secure from her sister a signed, notarized release giving her temporary custody of the children. That release wasn’t enough. DeKalb school officials insisted on a letter of legal guardianship from the county probate judge. Robin Poston’s sister did sign the guardianship letter. But she didn’t complete it and didn’t designate anyone as her children’s new guardian, Moye’s order said. Poston, already apparently uncomfortable that she might harm her absent sister’s parental rights, balked when — prior to issuing the guardianship letter — the court appointed a guardian ad litem to investigate her own fitness as guardian, according to the order. She claimed it was an invasion of her privacy. Courts in other states routinely have upheld a school district’s authority to refuse to enroll a child unless a parent or legal guardian also lives in the school district, Moye wrote. Such a policy “provides the school district with an individual or individuals with whom to deal who has legal responsibility for the minor student’s education, health and well-being; in the areas of student discipline, attendance, medical conditions and emergencies, acquisition and certification of necessary immunities [vaccinations] and academic performance.” In addition, the judge noted that, according to the DeKalb school district’s lawyers, “In the past several years, the school system has been faced with hundreds of these situations in which people who were unable to satisfy either of these requirements have presented students for enrollment, and that, in a number of these cases, the putative caretaker had kidnapped the children or had otherwise removed the children from their lawful custodians without consent.” Sams says DeKalb County schools have had district residency requirements since 1960 when a federal lawsuit blamed the county’s open admissions policy for encouraging the white flight of students from Atlanta public schools. In addition, Sams acknowledges, “We have overcrowded conditions in our schools. A form of controlling overcrowding is to make sure only those citizens who have a right to go there, go there — that is, residents of the county.” LEGAL REASONS But there are legal reasons as well, Sams says. “If something happens to the child, who can we talk to about the child?” he asks. Following instructions regarding a child’s welfare from an unofficial caretaker doesn’t legally protect the school system from litigation by a child’s natural parent or legal guardian, Sams says. “We have allowed somebody with no legal authority to make a judgment on this child. … The school system is not going to find itself in a posture of asking a person with no legal authority how a child should be treated.” Both local and federal laws often mandate that only a parent or guardian has legal responsibility for the child, Sams says. A child’s caretaker cannot be held legally responsible for a child who is truant, he says. And federal laws prevent schools from sharing a child’s school records, including grades, with anyone but a legal guardian or a parent. Nor is the school system comfortable in making exceptions, no matter how worthwhile they may be. Says Sams: “How many exceptions do you make?”

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