The Cranky Taxpayer
On July 26, 2012, the Board of Education considered its (vastly defective) draft truancy regulation. The Board adopted two sets of amendments (They didn't bother to set out the draft regulation as amended. The amendments are set out here and here.). Unfortunately, one of the amendments rendered the entire regulation baldly unlawful. As well, the Board abided in its determination to avoid any requirement for transparency of the data or accountability for compliance with the regulation and with the statute that Richmond has been ignoring so assiduously. So, of course, I had to comment again:
Note: They adopted this defective regulation on September 27.
MEMORANDUMTO: Melissa Luchau, Director
Office of Board Relations
Virginia Department of Education
FROM: John Butcher
DATE: September 10, 2012
RE: Amendments to Proposed Truancy Regulation, 8 VAC 20-730
I learned today that the thirty-day comment period on this amended regulation was announced only in an email. The Board did not share that email with me albeit most of the amendments stemmed from my comments on the draft regulation. The further comment period was not announced in the Virginia Register or on the Regulatory Town Hall.
Thank you for the links (here and here) to the amendments to this proposed regulation as adopted by the Board at its meeting on July 26, 2012. Unfortunately the amendments render the regulations unlawful and, at the same time, fail to correct several of the defects identified in my comments of February 2, 2012.
Thus, albeit after the September 1 closure of the Board’s (apparently secret) comment period, I am submit these further and renewed comments for inclusion in the record of this rulemaking.
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.
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.
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 amendments to the 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.
Indeed, a student could march into school only during the last five minutes of class on each school 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 otherwise 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 ignoring § 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 school for “at least 180 teaching days or 990 teaching hours.”
II. 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 spectrum of definitions that would render the data collected under the regulation meaningless.
III. 8 VAC 20-730-30.E Still Does Not Require Reasons for the Choice Between CHINS and Misdemeanors.
Subsection 30.E requires a report whether a seventh absence leads to a complaint but fails to require the division to set out the reasons for choosing one course or the other.
This failure to require transparency is fully consistent with the general absence of any requirement in the regulation for accountability. See the next item.
IV. The Regulation Should Create a Clear Chain of Accountability.
As I pointed out in my earlier comments, 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.” This in a school division with 1,875 cases of ten or more unexcused absences during 2009 and, doubtless, nearly that number in 2011 and 2012. Call it <2.5% compliance with CODE § 22.1-258.
If, as at present, there is no clear chain of accountability and no expectation of consequences for poor performance, we can expect that Richmond, and surely other divisions, will continue to fail the children in its schools. The Board should use this regulation as an opportunity to correct that dismal situation.