A ninth-grade student is often late to class after lunch. His tardiness counts as unexcused absences. He and his parents sign an agreement saying that he has violated the compulsory attendance law and that the court may sanction him for further absences. Although he promises to try to be on time, he continues to be late on occasion. A notice comes in the mail saying that he must attend a hearing to determine whether he is in contempt of court and that he faces arrest if he fails to appear.
This young man’s plight is like that of thousands of other youth in Washington. They are under the jurisdiction of juvenile courts simply for missing school.1
There is no clear evidence that court referral and threat of incarceration improve school attendance. However, there is evidence that our truancy system contributes to a disturbing national trend known as the “school-to-prison pipeline” in which children are funneled from public schools into juvenile and criminal justice systems. Data indicate that this pipeline has a disproportionate impact on African-American, Native American and Latino students.2
In studying implementation of the truancy laws, the ACLU, public defenders, civil legal advocates and educators are finding that among the thousands of youth in truancy courts are students who want to avoid harassment by other students, who have fallen too far behind academically to catch up, and who miss school because of learning disabilities. They include youth struggling with conflicts at home, mental health issues and drug or alcohol addiction.
Young people facing these obstacles should never reach truancy court. Working with youth and families, schools should take the lead in identifying problems and making sure students get help. Indeed, Washington’s truancy law requires just that: Youth may be referred to court only if school-based efforts fail.3
Unfortunately, the law lacks a way to make sure this actually happens. And it wrongly presumes that students will be able to stand alone in court and demand such efforts from schools and parents.
The Truancy Law
Washington’s compulsory attendance law requires children to attend public school regularly from age 8 to 17 and requires parents to ensure their children attend.4
Students and parents run afoul of the law when a student accrues unexcused absences.5 State law gives school districts discretion in defining unexcused absences.6 In some schools, tardiness and missed classes count the same as missing a whole day and can lead to court referrals.
Schools’ Obligations
The law requires schools to give notice to parents and schedule student-parent conferences before referring youth to court.7 It also requires schools to take steps to eliminate or reduce absences.8 If these actions are not successful, schools must file truancy petitions not later than the seventh unexcused absence in a month or tenth in a school year.9
While schools often give notice and may try to schedule a conference, too often they do not take other steps before making court referrals. Youth end up in court facing incarceration. Problems at school or home that might be resolved with early intervention worsen.
Agreed Orders and Hearings
Some schools routinely ask students to agree to truancy orders, foregoing hearings on the petitions. In theory, this reserves limited court time for the most serious cases. But when petitions are resolved by agreement, students are left to decide whether schools have followed compulsory attendance laws. In practice, youth often sign court orders even when schools have not complied with their obligations to give notice, schedule a conference and take action to reduce absences.
At hearings, courts determine whether the student had unexcused absences, whether actions taken by the school were successful in reducing absences and whether court intervention is necessary to assist the school.10 According to the statute, courts do not need to appoint a guardian or counsel for youth.11 Parents may not be able to assist their child, since they also may be named as respondents.12
This unfairly puts the burden on youth to challenge the school’s evidence and question witnesses; they must prove that absences should have been excused or show that the school should have taken steps to avoid the court process. These youth, who may be as young as 8 years old, can rarely, if ever, meet that burden.
The orders issued after hearings or by agreement typically direct youth to have no further unexcused absences and avoid suspensions.13 Youth have good reasons for challenging such orders. Once an order is issued, youth face incarceration for any additional unexcused absences.14
Youth need a chance, with the help of an advocate, to examine the reasons behind their absences and how the school might help reduce them. Otherwise, existing barriers to attendance are likely to continue unaddressed, setting youth up for failure.
Contempt
Youth who violate truancy orders face civil contempt sanctions, including up to seven days in juvenile detention.15 At that point, there is a constitutional right to counsel.16 But counsel’s role is restricted. Principles of res judicata generally preclude challenges to the underlying order.17 Counsel may be foreclosed from raising meritorious issues that a youth might have raised at the initial hearing, but was unable to do so.
When considering contempt sanctions, some courts inquire into reasons for absences, refer youth to services and require them to write essays describing the importance of school. But in other courts, youth are sentenced to incarceration upon the first contempt.
Problems and Solutions
Some problems with this system are obvious. Threatening incarceration to coerce school attendance is troubling. Immediate resort to incarceration is almost always inappropriate.18
Putting a student in detention does nothing to resolve the problems that led to truancy and may result in significant harm. At a minimum, time in detention sets youth back academically. At worst, it puts non-offender youth together with those who have committed serious crimes and sets them on a path to delinquency.
We can improve this system. Attorneys representing youth in truancy proceedings can urge courts to craft contempt sanctions that respond to individual needs, allow youth to remain in school during school hours and serve sanctions after school or on weekends. They can urge courts to limit the use of bench warrants for failure to appear at truancy hearings and clarify that warrants should never be executed at school.
Further, administrators can stop suspending students as punishment for missing school. When students start missing school, the first thing they usually need is help, not punishment.
We also must re-examine state policies. Schools must receive adequate resources to address underlying causes of truancy. Additional solutions will require more time to identify and implement. At present, we lack the basic data even to know how many youth are incarcerated for truancy each year, how many return to school and how many graduate.
The challenge is to make sure truancy policies help students succeed in school; not push them out. It is time to re-think policies that contribute to the school-to-prison pipeline.
n
Rose Spidell is a staff attorney with the Education Equity Project of the ACLU of Washington Foundation.
1 In the 2003–04 school year, 13,153 truancy petitions were filed; only 3,863 of those petitions were dismissed, leaving more than 9,000 youth subject to the jurisdiction of truancy courts. See Truancy: Statewide Statistics for the 2003–2004 School Year, Administrative Office of the Courts, Annual Report to the Washington State Legislature, May 2005.
2 Data are available at the Office of Superintendent of Public Instruction’s Web site: http://www.k12.wa.us/DataAdmin/default.aspx and http://reportcard.ospi.k12.wa.us/DataDown load.aspx.
3 See RCW § 28A.225.020 (requiring schools to take steps to reduce or eliminate absences); RCW § 28A.225.030 (directing schools to file petitions if actions taken by school have not been successful); RCW § 28A.225.035 (requiring schools to allege that their actions were not successful in reducing absences).
4 RCW § 28A.225.010. Students may be excused from public school attendance if they attend private school, are home-schooled or fall within one of the other limited statutory exceptions. Id.
5 RCW § 28A.225.020.
6 RCW § 28A.225.020(2).
7 RCW § 28A.225.020(1).
8 Id.
9 RCW § 28A.225.030(1). Schools may file petitions against the parent, the child or both. Id.
10 RCW § 28A.225.035(1), (12).
11 RCW § 28A.225.035(11).
12 RCW § 28A.225.030.
13 Courts may order children to attend their current school and meet minimum attendance requirements; attend another public school or alternative program, or, in some circumstances, a private school; be referred to a community truancy board; or, where indicated, to submit to drug or alcohol testing. RCW § 28A.225.090(1).
14 RCW § 28A.225.090(2).
15 Id.
16 See Tetro v. Tetro, 86 Wn.2d 252, 255, 544 P.2d 17 (1975).
17 State v. Coe, 101 Wn.2d 364, 370, 679 P.2d 353 (1984).
18 Incarceration should be imposed only when no other alternatives appear available to coerce the child’s compliance with the court’s order. In re Interest of M.B., 101 Wn. App. 425, 439–40, 3 P.3d 780 (2000), rev. denied, 142 Wn.2d 1027, 21 P.3d 1149 (2001).
