[Editor's Note: John R. Butcher, a retired attorney and a former Senior Assistant Virginia Attorney General responsible for bankruptcy and all major litigation for the Natural Resources Section, has relentlessly tracked and written about Virginia's failure to produce and enforce a coherent truancy regulation. His analysis below chronicles not only the glacial pace of the Virginia Board of Education's recent six-year effort, but also reveals that the regulation remains unlawful, ineffective and essentially constitutes a classic Catch-22* situation. ~ CW]
CODE§ 22.1-269 requires that the Board of Education “see that the [mandatory attendance laws] are properly enforced throughout the Commonwealth.” Notwithstanding that mandate, the Board still neither collects nor publishes data that would allow the public to assess its performance of that duty.
In this enforcement vacuum, Richmond, for example, has been free to define “truancy” as ten unexcused absences and, instead of filing a petition for judicial action at seven absences, as § 22.1-258 requires, sending a letter after ten.
The Board did not publish a proposed truancy regulation until December 21, 2009. The history of that regulation is set forth on the Town Hall website. In short, the regulation now is in its fourth public comment period.
Despite six years of consideration and reconsideration, the regulation remains unlawful and ineffective.
I. The amended definitions of “excused absence” and “unexcused absence” render the regulation unlawful.
CODE§ 22.1-254 contains the compulsory attendance provision of Virginia law:
Except as otherwise provided in this article, every parent, guardian, or other person in the Commonwealth having control or charge of any child who will have reached the fifth birthday on or before September 30 of any school year and who has not passed the eighteenth birthday shall, during the period of each year the public schools are in session and for the same number of days and hours per day as the public schools, send such child to a public school or to a private, denominational, or parochial school or have such child taught by a tutor or teacher of qualifications prescribed by the Board of Education and approved by the division superintendent, or provide for home instruction of such child as described in § 22.1-254.1 (emphasis supplied).
CODE§ 22.1-98.B.1 provides: “The length of every school’s term in every school division shall be at least 180 teaching days or 990 teaching hours in any school year.” The statute sets out exceptions (e.g., severe weather); those exceptions do not include part day absences.
In short, the law requires attendance for the full school day and the full school year.
The Board of Education shall have the authority and it shall be its duty to see that the provisions of [§§ 22.1-254 through -269.1] are properly enforced throughout the Commonwealth.
That is, this Board has the authority and duty to enforce § 22.1-254 and -258, not to create loopholes in those statutes. Yet, the Board’s proposed regulation would excuse an absence that is shorter than the full school day by even a moment and would except that absence from the mandatory enforcement procedures of §§ 22.1-258 et al.
Under this regulation, a student could march into school only during the last five minutes of class on each school day, or report for the first roll call and then leave for the day, and never be classified as truant under the amended regulation. Surely the General Assembly did not intend that absurd result.
The sole rationale proffered by staff for this unlawful exception is convenience. Yet the statute does not make an exception for the convenience of the school divisions or of the courts.
Perhaps the Board could make an exception for an occasional de minimis instance where a student is tardy or unavoidably misses a few minutes of class. But the wholesale exception of any absence less than a full class day, as now proposed, is baldly unlawful.
As pointed out in my earlier comments, Richmond has been violating § 22.1-258 wholesale. Full compliance with the law surely will be greatly inconvenient to Richmond and to any division similarly engaged in ignoring § 22.1-258. Anything less, however, would be contrary to the manifest will of the General Assembly, would subject the Board to suit over an unlawful regulation, and would leave the divisions exposed to actions for mandamus for failure to comply with the clear requirements of Virginia law.
Indeed, any division that might be overwhelmed by the requirement to obey this law will have the same recourse as any other public agency with inadequate resources to comply with the law: Seek more resources and, in the meantime, prioritize the workload and deal with as many cases as possible.
Staff point to the 2d and 3d paragraphs of § 22.1-258 which require notice to the parent “[w]henever any pupil fails to report to school on a regularly scheduled school day” and require an attendance plan after the fifth such failure. Read literally, these provisions would never invoke the enforcement mechanisms of § 22.1-258 so long as the student reported in at any time during the school day, regardless of whether the student then departed immediately. This narrow reading of the second and third paragraphs overlooks the fourth paragraph of § 22.1-258, which requires a conference “[i]f the pupil as absent” a sixth time and requires referral to court “[u]pon the next absence,” both without mentioning failure to “report.” Moreover, staff’s narrow reading of the failure to report language would lead to a regulation that is manifestly inconsistent with the General Assembly’s command that every student attend (i.e, report to) school for “at least 180 teaching days or 990 teaching hours.”
The Supreme Court’s Blake decision does not modify this duty. Blake holds that “send” in § 22.1-254 is sufficiently ambiguous that a parent cannot be prosecuted for her child’s tardiness. Nowhere, however, does the decision contradict the manifest purpose of the compulsory attendance statutes that, with very limited exceptions, every school age student shall attend school all of every school day.
Moreover, the Board has the authority (and duty) to rectify any ambiguity in the statute in order that the statute may serve its clear purpose.
Finally, the separate definitions of excused and unexcused absences are dangerous and unworkmanlike.
By setting out long definitions of both excused an unexcused absences, the Board invites lawlerly mining for ambiguity and conflicts between the two definitions. Moreover, in light of the statutory requirement for full attendance, the Board should set out careful and narrow standards for excused absences, and then define any other absence as “unexcused.”
II. Consistent with the Failure to Require Full Day Attendance, the Regulation Fails to Require Reporting of Part Day Absences.
The data collection portion of the Regulation, 8 VAC 20-730-30, is silent as to part-day absences.
III. The New § 8 VAC 20-730-20 Invites Up to 132 Separate Definitions of “Excused Absence.”
The new § 20-730-20 would have each school board provide “guidance” as to “what would constitute an excused absence.” In this, the Board unlawfully delegates its own authority and invites a spectrum of definitions that would emasculate the compulsory attendance laws and render the data collected under the regulation meaningless.
IV. 8 VAC 20-730-30.E Does Not Require Reasons for the Choice Between CHINS and Misdemeanors.
Upon the next absence after the scheduling of the six-absence conference,CODE§ 22.1-258 requires either or both (1) filing of a complaint alleging the student is a child in need of supervision (CHINS petition), and (2) prosecution of the parent.
Subsection 30.E of the Regulation requires a report whether a seventh absence leads to a complaint but fails to require the attendance officer or Superintendent to set out the reasons for choosing one course or the other.
Yet the choice must be driven by the facts of each case. For example, one of the division’s options under § 22.1-258 is to prosecute the parent under § 22.1-262. That latter statute authorizes prosecution for, inter alia, “refus[al] to participate in the development of the plan to resolve the student’s nonattendance or in the conference provided for in § 22.1-258.” Manifestly, if the division fails to prosecute a parent who refuses to participate, the attendance officer should be required to set out a principled reason for not prosecuting.
This failure to require transparency is fully consistent with the general absence of any requirement in the regulation for accountability. See the next item.
V. The Regulation Should Create a Clear Chain of Accountability.
The regulation fails to require a system of accountability so that the public, the Board, and the local school boards, can measure the performance of a school system and its employees.
Richmond serves as an example, perhaps an extreme one, of the effect of this Board’s failure to obtain reliable truancy data and to enforce the requirements of § 22.1-258.
In an email dated May 22, 2012, Felicia Cosby of the City of Richmond Public Schools wrote: “As of March 22, Richmond Pubic Schools has sent 77 failure to send petitions–an increase from last year’s total submissions of 47.” Yet Richmond had 1,875 cases of ten or more unexcused absences during 2009. CODE § 22.1-258.
Note: The 2013 report from the Department of Education (the most recent report available as of November, 2015) shows 3,268 six-absence conferences in Richmond, 13.8% of the fall ADM of 23,649. In the absence of any further data from the state, it is impossible to know whether that astounding datum represents an improvement or not.
If, as at present, there is to be no clear chain of accountability and no expectation of consequences for poor performance and no State enforcement of the mandatory attendance laws and no useful information from the State, we must expect that Richmond, and surely other divisions, and the State will continue to fail the children in our schools. The Board should use this regulation as an opportunity to correct that dismal situation.