An Open Letter to Virginia Governor McAuliffe and Virginia Secretary of Education Holton: Your Help Is Needed

One thing is certain -- Virginia's new Governor, Terry McAuliffe and his Secretary of Education, Anne B. Holton, will not be able to say they are unaware that the State Board of Education is failing to do its job to enforce Virginia's Compulsory Attendance laws.

Nor will they be able to say that they are unaware that Richmond Public School (RPS) officials are flagrantly violating Virginia's Compulsory Attendance laws and that the Virginia Department of Education and the State Board of Education are letting them get away with it. 

Retired Richmond attorney and a former assistant Attorney General, John R. Butcher, has made sure of that.  

In a letter sent to McAuliffe, and copied to Holton and other officials, Butcher makes a powerful legal and moral case that the Governor intervene and compel the members of the State Board of Education to uphold the law.  

Should the State Board of Education refuse to promptly do its legal duty, Butcher asks that McAuliffe remove them.  

See text of Butcher's letter below: 

January 13, 2014

Governor Terance R. McAuliffe 

Patrick Henry Building, Third Floor 

1111 East Broad Street

Richmond, Virginia 23219




RE: Education Board's Ongoing Malfeasance




Your Excellency,

I write to ask that you require the Virginia Board of Education to end its neglect of its duty to enforce the mandatory attendance laws.

Background

Va. Const. art. V, § 7 provides: “The Governor shall take care that the laws be faithfully executed.”

CODE § 22.1-254.A contains the compulsory school attendance provision of Virginia law:

[Requires schooling] 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 . . . (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 authorize part day absences for any reason not available for full day absences. In short, the law requires attendance for the full school year and the full school day.

CODE § 22.1-258 requires a school division to investigate every unexcused absence and to take specified actions, culminating with a CHINS (Child In Need of Services/Supervision) petition or complaint against the parent upon a seventh absence. [See CODE § 16.1-228].

CODE § 22.1-269 provides:

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.

Notwithstanding this clear mandate, the Board has been remarkably

uninterested in enforcing § 22.1-258.  Indeed, the Board does not even collect information that would allow it to assess whether a school division is in compliance with that statute. In this enforcement vacuum, Richmond 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 absences. 

In 2010, after I had pointed out that Richmond had been and was in wholesale violation of § 22.1-258, the Board proposed a truancy regulation.

Following a series of delays, the Board voted to adopt the regulation on September 27, 2012. I sued over the manifest defects in the regulation. Butcher v. Board of Education, No. CL12005348-00 (Cir. Ct. City of Richmond, Petition for Appeal, December 14, 2012).

Belatedly recognizing its fatal procedural errors, the Board on January 10, 2013, voted to rescind and repropose the regulation. In the reproposed version, the Board attempted to partially emasculate the (already weak) regulation by defining “truancy” to include only full-day absences:

·      "Truancy" means the act of accruing one or more unexcused absences.

·      "Unexcused absence" means an absence where (i) [either] the student misses his scheduled instructional school day in its entirety [or misses part of the scheduled instructional school day without permission from an administrator].

The Board filed the reproposed regulation with the Regulatory Town Hall on January 30, 2013. The regulation has since languished at the Department of Planning and Budget and, since October 10, 2013, in the Governor’s Office.

Discussion

The Board’s records contain its justification (pdf at p.6) for enfeebling the regulation:

To avoid potential complicating of division data reporting systems and overloading of court cases required by the Code after seven unexcused absences, the proposed definition [of “unexcused absence”] has been amended to missing a full day only. . . . Thus, the Board seeks to evade its duty and the manifest will of the General Assembly in order to simplify data reporting and (in the spirit of ultra vires but compassionate overreach) to avoid overloading the courts. In the latter case, the Board’s reluctance to overload the courts tells us that the Board knows that § 22.1- 258 is being grossly violated. Thus, it is clear that the Board is deliberately sabotaging the statute it is required to enforce.

As reproposed, the regulation would allow a student to attend school long enough to be present at the first roll call and then to skip out for the remainder of the day. Not only is this perversion of the mandatory attendance requirement unlawful, our experience in Richmond shows it to be unwise.

On January 5, 2005, Phillip Hicks stabbed Justin Creech to death near the intersection of Staples Mill Road and West Broad Street. Both Hicks and Creech were students at Thomas Jefferson High School; both had reported for school that morning and then had, as was their custom, left school. As is the custom in Richmond, the school was doing nothing to deal with Hicks’ and Creech’s truancy. More generally, much of our juvenile crime comes from students who are truant. Yet the Board now seeks to license truancy.

Governor, I ask that you object to this regulation as authorized by CODE §2.2-4013 and demand that the Board meet its obligation to enforce the mandatory attendance laws. If the Board then fails to promptly discharge its duty, please remove all the Board members.

With kindest regards, I am

                                                           Sincerely,

                                                                       John R. Butcher




Copy: Secretary Holton (education1@governor.virginia.gov) Sen. Alexander (district05@senate.virginia.gov)

Del. O’Bannon (DelJOBannon@house.virginia.gov) Superintendent Wright (Patricia.Wright@doe.virginia.gov) President Foster (dfoster@fulbright.com)
Senior Assistant Attorney General Forehand

(rforehand@oag.state.va.us)