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Inexcusable Absences

Skipping school is a problem. But why is it a crime?

A mother is led away in handcuffs during a 2011 “truancy sweep” in Orange County, California.

On June 7, 2014, Mike Tobias, a 28-year-old from Reading, Pennsylvania, was watching television at home when his brother burst into the room with an emergency phone call. Their mother, Eileen DiNino, had been discovered unconscious in her cell at Berks County Prison and taken to the hospital. “I talked to the doctor and he explained what happened,” Tobias told a reporter from the Reading Eagle. “She had blood coming from her nose and mouth when they found her and that was that.” DiNino suffered from a number of health problems, and did not have access to medications for high blood pressure, anxiety, and bipolar disorder while incarcerated. The night before, DiNino’s cellmate, Nicole Lord, said she heard DiNino complaining of pain all over her body, saying that she had been moaning, “It hurts, it hurts. I cannot breathe.” Now, the doctor told Tobias, his mother was dead.

This story was produced in collaboration with The New Republic. It appears in the March/April issue of the magazine.

DiNino, a 55-year-old single mother of eight, had been sentenced to a two-day stint at Berks County because she owed the local courts more than $2,000 in fines and fees related to the truancy of two of her teenage sons. She was unemployed, lived in a house owned by a relative, and her husband, Brian, who had owned a small business, passed away in 2011 from complications from hepatitis. Caring for her family was a struggle. “My brothers, despite the truancy, are good kids,” Tobias said. “They’re not out running the streets committing crimes.”

“She tried to make her sons go to school but there is only so much a parent can do.”

More than 1,600 parents—most of them mothers—have been jailed in Berks County since 2000 for failure to pay truancy fines. In Pennsylvania, truancy is defined as more than three days of unexcused absence from school. After that, kids and parents can be referred to court and fined $300 per additional unexcused absence, in addition to court costs. Because her sons were enrolled in different schools under different jurisdictions, two judges heard a total of 55 truancy charges against DiNino. The first, Wally Scott, cleared her after learning of her indigent financial situation. “We sat and talked for a long time in my office and I could see that she couldn’t pay the fines, that she tried to make her sons go to school but there is only so much a parent can do,” Scott said. The second judge, Dean R. Patton, ordered DiNino to document her inability to pay the truancy fees. When she failed to bring the paperwork to court, Patton sent her to jail. He later told The Associated Press that DiNino “cared about her kids, but her kids ruled the roost.”

DiNino’s death shed light on a murky corner of the criminal justice system, one in which school administrators, the police, and the courts enforce—often with nearly untrammeled discretion—strict school attendance laws. While incarceration of truant students and their parents is relatively rare and declining in most states, these cases—typically more than 150,000 annually—commonly lead to fines, loss of custody, and probation for both juveniles and parents. Over 1,000 truant children and teenagers are removed from their homes each year and placed in foster homes, group homes, or juvenile detention centers for nothing more than absences from school. An additional 15,000 truants are placed on juvenile probation, with probation violations such as breaking curfew or missing additional days of school leading to detention or out-of-home placement.

There is no reliable data on the number of parents nationwide who experience legal consequences for their children’s absence from school. But local news reports tell a tale of harsh, if sporadic, enforcement. In October, the Florida State Attorney’s office issued warrants for the arrest of 44 Jacksonville parents of truant children. They faced probation, fines, and up to a year in jail for contributing to the delinquency of a minor. Lucius Corbitt III and his wife, Afton Nolan, were both arrested after their daughter missed 40 school days over three years. But, they pointed out, she still made the honor roll. “Maybe there are some kids whose parents didn’t want to send them to school,” Corbitt told The Florida Times-Union. “But when my child missed school, my wife and I got makeup work and she passed. ... Most days she missed we had doctor’s documentation, but it is so hard to get someone at the school board. It really is crap.”

In April 2013, police officers in Orange County, California conducted a “truancy sweep” of area households. Six parents were arrested and photos of their perp walk in handcuffs appeared in the media. Virginia Ferrer Avila, whose middle school child was absent from school 21 times, was booked on contributing to the delinquency of a minor and “failure to reasonably supervise or encourage school attendance.” Frank Acosta, the Orange County deputy district attorney, accompanied police officers on the sweep. He told reporters that Avila had come to the attention of law enforcement officials after failing to enroll in a free parenting class meant to combat truancy. He described Avila as oddly remote during her arrest: “It looked like she had tears in her eyes, but not an emotional cry,” he said. “It seemed from a distance that she understood what was going on.”

Absence from school is an undeniable problem. We know it is correlated with lower grades, with dropping out of high school, and with trouble with the law. What is less certain is if treating truancy as a crime addresses these underlying issues in an effective and reasonable way. Such interventions have not been proven to increase school attendance or decrease long-term criminal behavior. In fact, the criminalization of truancy often pushes students further away from school, and their families deeper into poverty.

T ruancy has been understood as a scourge since the early nineteenth century. That’s when the common schools reform movement, led by educational figures like Horace Mann, introduced the idea of laws requiring parents to enroll their children in school, with the goal of creating a more educated and moral electorate. In 1852, Massachusetts became the first state to legislate compulsory education. Later, progressive reformers also argued for the threat of arrest as a stick to drive reluctant working-class parents, many of them recent immigrants, to keep their kids off the farm and streets or out of the factory. In 1889, the Chicago Board of Education argued, “We should rightfully have the power to arrest all these little beggars, loafers, and vagabonds that infest our city, take them from the streets and place them in schools where they are compelled to receive an education and learn moral principles.” (A quarter of the juveniles jailed at the Chicago House of Correction in 1898 were there for truancy.) By 1918, every state had a law making school attendance mandatory.

It was the No Child Left Behind Act of 2001 (NCLB) that required schools, for the first time, to report truancy data to the federal government, alongside annual test scores in reading and math, as well as high school graduation rates. NCLB passed Congress with bipartisan support. The law did not specifically punish schools for truancy, but it created a social and political link between absence and negative outcomes for students. And with its explicit threat to declare low-performing schools as “failing,” the law infected state-level lawmakers, prosecutors, and judges with a zeal to eradicate the perceived causes of low test scores—with truancy seen as among the worst.

At a January 2004 event to mark NCLB's second anniversary, President George W. Bush said he wanted to highlight the importance of truancy and parental involvement. “There’s nothing like test results being published to get the attention of a parent. ... It encourages the parent to become involved.” The Bush administration went on to promote a truancy agenda much harsher than simply providing parents with information on their children’s education. Later that year, Secretary of Education Rod Paige hosted the first-ever National Truancy Prevention Conference, where he called for a “crackdown” on school absence. “A major focus of the No Child Left Behind Act is to keep kids in school,” he said. “How? First, by dragging truancy out of the shadows.” Paige acknowledged that “by the time truants reach the criminal justice system it’s often too late,” and urged schools to intervene with absent students earlier. But he enthusiastically cited stringent anti-truancy laws in New Mexico and Texas, which subjected truant students and their parents to fines and imprisonment, and endorsed a Georgia law that took driver’s licenses away from truant teens. Georgia also redefined truancy as anything more than five days of unexcused absence from school, and allowed parents of truant students to be charged with educational neglect and sentenced to up to 30 days in jail. (In 2009, the city of Atlanta went even further. It passed an ordinance that allowed parents to be imprisoned for 60 days if children are apprehended outside school on a weekday. Atlanta schools also refer families directly to the courts after a child has ten unexcused absences. That happened 900 times in 2011, and warrants were issued for the arrest of 70 parents who did not show up for required truancy meetings with a judge.) Paige also praised a Tennessee law that curbed state welfare payments to parents if their children were truant, a policy that was also part of President Bill Clinton’s 1996 federal welfare reforms. “The states have decided these penalties, and they’re taking the problem very seriously,” Paige said.

These sorts of steps have been widely imitated by other states. According to an analysis of data collected by the Education Commission of the States, a nonprofit that tracks policy trends, the era of national school reform launched by NCLB has coincided with a burst in state-level lawmaking related to school attendance. Since 2002, when NCLB went into effect, states have passed an average of 23 new attendance-related bills per year. At least one-third of the states have passed laws that deepen court involvement in school absence or establish stiffer legal penalties for truant students and their parents. States have also decreased the number of absent school days required to be declared truant and pushed school administrators to report truancy cases directly to the courts. In addition, according to the National Education Association, 14 states raised the age of compulsory education from 16 to 17 or 18, a policy that President Barack Obama advocated in his 2012 State of the Union Address; others now require, for the first time, that children as young as five be enrolled in school. Expanding the age of compulsory study increases standards for education. But it also creates a larger pool of children who can be considered truant, and thus potentially punished for it.

“What are you doing to make the school a more inviting place for kids?”

With administrators and teachers held increasingly accountable for test scores under NCLB as well as reforms pushed by the Obama administration, some education advocates have developed a new fear: that school administrators are using truancy referrals to remove low-performing students from the standardized testing pool. Due to the current lack of data linking individual students’ attendance patterns and truancy referrals with their test scores, that contention is difficult to either prove or disprove. “People are suspicious,” said Melissa Sickmund, director of the National Center for Juvenile Justice. She points out that low-income students of color are both the most likely to be declared truant and are also disproportionately suspended and expelled from school.

Administrators know that truancy proceedings mean that certain students will appear in court, not in class, and can lead to children being reassigned to alternative education programs not subject to the same testing pressures. It is not unheard of to use disciplinary procedures to raise test score averages. Research from Florida and Texas suggests that administrators are more likely to mete out punishments that remove low-performing students from school during periods of high-stakes testing. The strategy, though cynical, achieves its aim. According to a 2005 paper by economist David Figlio, Florida schools that increased their suspension rates during testing demonstrated slightly higher aggregate scores in math and reading.

“You’re trying on one hand to punish kids for not going to school. Then there are a whole bunch of other kids you’re pushing out of school,” Sickmund said. “What are you doing to make the school a more inviting place for kids?”

R esearch from Robert Balfanz of Johns Hopkins University suggests that today, as many as 15 percent of American students may be “chronically absent,” meaning they are absent from school for any reason for two or more days per month. According to Balfanz, half of them skip school by choice (referred to as “willful defiance”); a quarter are avoiding something negative, such as a bully or disliked teacher; and another quarter miss school primarily because their families can’t afford transportation or the students are expected to babysit younger siblings or care for sick relatives.

Our courts are not very good at getting kids back to class. Research demonstrates that although truancy proceedings can increase a child’s school attendance in the short term, answering to a judge for school absence does not help students graduate from high school or avoid crime. A 2011 study from the Washington State Center for Court Research compared high school students who received truancy summons with kids who had the same number of unexcused absences and similar grades, but who were not called into court. The students in court experienced more subsequent absences than the ones who avoided law enforcement; they also received lower grades, and were more likely to drop out of school or be charged with a crime.

Still, some states continue to embrace court-driven consequences for school absence. A 2013 law in Delaware required schools to refer truant students for prosecution; a similar bill currently in front of the Michigan state legislature would send them to family court. In September, California Governor Jerry Brown signed a law that gave county prosecutors and public defenders seats on school-based attendance review boards that can levy sanctions against truant children and their families. The state’s attorney general, Kamala Harris, said, “a child going without education is tantamount to a crime,” and had taken steps to treat it as such: In 2011 she implemented new measures that could result in fines of up to $2,500 or a year in jail for parents of truant kids.

That fall, as West Virginia Supreme Court Justice Robin Davis campaigned for reelection, she traveled around her home state giving a series of lectures on what she called a major driver of crime, incarceration, and joblessness: school truancy. She encouraged circuit court judges to see themselves as “the persons with the big hammer” when it came to truancy cases, and said they should not be afraid to jail parents of young children who were not showing up at school, or, in the case of teenagers, to remove them from their homes. The state teachers’ union and Governor Earl Ray Tomblin endorsed her efforts.

West Virginia Circuit Court Judge James J. Rowe supported Davis, too. In December 2011, he heard the case of “Brandi B,” a 14-year-old girl with a history of behavior problems. (Juvenile records are sealed, and Brandi is referred to in court documents under this pseudonym.) Brandi had been suspended from school for six days after getting into a fight. School administrators treated those suspension days as unexcused absences and reported her to the courts as truant. Judge Rowe then transferred custody of Brandi from her mother to the state. In an appeal, Brandi’s attorney argued that the girl’s out-of-school suspension provided her with a legal excuse for, well, not being at school. Bizarrely, the state’s supreme court thought otherwise. The justices ruled in 2013 that there was “nothing arbitrary” in a school declaring a child truant for days when she had been suspended. Brandi will remain on juvenile probation until she turns 18 this May.

“When a student is in elementary school, they’re going to share the values of their parents or whomever they live with. It’s child abuse if they don’t send them to school. Quite honestly, it’s criminal behavior.”

“People are now realizing we’re going to take truancy seriously,” said West Virginia Deputy Treasurer Josh Stowers, who crafted the state’s 2010 truancy crackdown while serving in the legislature. The law requires school employees to refer truancy cases directly to the courts after five days of unexcused absence if parents do not attend a conference with school officials. “When a student is in elementary school, they’re going to share the values of their parents or whomever they live with. It’s child abuse if they don’t send them to school. Quite honestly, it’s criminal behavior. We will figure out how to help that child.”

Nebraska also passed a strict new law, in which truancy became a court matter after 20 days of absence, even if 19 of those days were excused by a parent. In fall 2010, Victoria Herrera pulled her fourth grader, Alyssa, from an Omaha elementary school after several bullying incidents. Herrera planned to homeschool her daughter and submitted documents to the state, but Alyssa was declared truant. Herrera was charged with child neglect and briefly lost legal custody of her daughter. Amber Morris, an Omaha attorney, represented Alyssa as a court-appointed advocate, and quickly determined the neglect case against her parents had little merit. “I go out to the home, it was clean, the child was well cared for,” she said. Morris helped the family file additional paperwork on their home-schooling curriculum, and the case was eventually dismissed. But for Herrera, the incident seeded deep distrust in the public school system; she now homeschools all five of her children, while her husband works for an automotive supply company.

“It was a mess, a nightmare,” she said. “It just messed with my emotion. I live my life for my kids, and for someone to tell me that protecting them was wrong was just ridiculous to me.”

The Douglas County prosecutor’s office in Omaha did not respond to requests for comment. But between 2009 and 2012, the county increased its truancy filings from 79 to 639 annually. Morris estimated that she has worked on several hundred truancy cases. She would accompany parents to meetings with principals and teachers, pushing for truant students to be placed in courses they would enjoy more as a motivation to get them to school. She said she helped older kids enroll in sports programs they longed to join, and which required good school attendance for participation. She connected families with community programs that provided transportation to school, health care for problems like drug addiction, and childcare. “On truancy and educational neglect, I was totally more of a social worker than an attorney,” Morris said.

T he public has begun to push back against these laws. In Pennsylvania, Republican State Representative Mark Gillen, a former corrections officer, said DiNino’s death was the result of “a Dickens-era approach to truancy.” In January, the state House Education Committee approved his “Eileen’s Law,” named for Eileen DiNino. If passed, it would allow judges to forgo fines for the parents of truant children. Outrage over truancy charges filed against sick, disabled, or bullied children has also led to demands for change. In West Virginia, a juvenile justice reform committee, convened last year, has recommended that schools address truancy through social work before turning to the courts. In Nebraska, the state legislature revised its truancy law in 2012 to exempt health-related absences from the 20-day absence count, and to remove the requirement that school officials report all chronic-absence cases directly to prosecutors.

Some school systems have developed new methods to help parents get their kids to school. After initially considering a plan to fine the parents of truant children, the high-poverty school district of New Britain, Connecticut, instead partnered with Attendance Works, a nonprofit founded in 2010 to help policymakers reduce school absence, to develop a data system that provides principals with a list of chronically absent students every ten days. Every school in the district has an “attendance team” that meets to develop a plan for each of those students. Interventions include teachers calling parents; home visits by specially trained staff; and connecting families with anti-poverty services provided by the state and community nonprofits like the Boys and Girls Club. Between 2012 and 2014, these efforts showed some positive results among the youngest children, with chronic absence rates decreasing from 30 to 14 percent for kindergartners and from 24 to 9 percent for first graders.

In New Britain high schools, around 30 percent of students remain chronically absent. Hedy Chang, the director of Attendance Works, acknowledged that it can be more difficult to address teenage absence. That’s why she believes it is crucial to focus on younger children before they fall behind academically and become even more discouraged about school. “A lot of people in the education system used to say, ‘I can’t do anything about poor attendance. That’s for families.’ What I think is changing is the realization that educators can affect it.”

One state in which that message might be sinking in is Texas, long the hardest of hard-liners on truancy—although the baseline there is particularly troubling. In Texas, “failure to attend school” is a Class C misdemeanor. About 70,000 such charges were filed against juveniles in 2013-2014, along with 68,000 charges against parents for “contributing to non-attendance.” An additional 40,000 cases were dealt with in special truancy courts in Dallas and Fort Bend. Each charge can result in a $500 fine for the child and additional $500 fines for each of the child’s parents. Between 2010 and 2013, judges in Texas ordered approximately 9,000 truant students, many with special-education designations, out of traditional high schools and into GED programs. (Research shows GED recipients earn incomes more similar to high school dropouts than to those who hold traditional high school diplomas.) Texas truancy cases are handled by municipal or justice of the peace courts, which means defendants are not entitled to a court-appointed attorney. “Since there are no checks on the system, the numbers explode out of control,” said Deborah Fowler, deputy director of Texas Appleseed, a nonprofit that advocates the decriminalization of truancy and other low-level juvenile offenses.

Former Texas Governor Rick Perry vetoed a bill in 2013 that would have shifted emphasis away from court sanctions and toward school-based interventions for chronically absent students. But supporters of truancy reform in the state say they are hopeful the legislature under Governor Greg Abbott will embrace reform in the coming year, in part because bipartisan support exists for change. Seven bills have been introduced in the state legislature that would decriminalize truancy entirely, reduce or remove fines associated with it, or establish more school-based interventions. One bill, from East Texas Representative James White, a Republican, would strike “failure to attend school,” and “parent contributing to nonattendance,” from the criminal code altogether.

Washington is shifting, too. Senator Sheldon Whitehouse and Senator Charles Grassley have introduced bipartisan legislation to end juvenile detention as a result of truancy and other status offenses. The Department of Education’s Office of Civil Rights now requires schools to report how many students are absent for 15 or more days per school year. Draft language to revise NCLB, produced by Senate Democrats, favors “chronic absence” over truancy, defining the term as missing more than 10 percent of the school year, and requiring school districts and state education agencies to address the problem. (Republican language ignores truancy and chronic absence entirely.) Whether these changes would reduce the criminalization of truancy depends entirely on how states, counties, and school administrators choose to use the absence data they collect. Will they lean on judges and prosecutors to address this issue? Or on educators?

“Most of our students involved in this truancy trap are moderate to low income. How is their criminalization—these fees—pulling them out?” White said. “I know this sounds odd that a Republican is saying this, but in many instances, are we criminalizing being poor? People gloss over this, but in some cases, students have to stay home to take care of siblings. This stuff really happens.”

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