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Truancy Reg III


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On Sept. 27, 2012, the Board of Education adopted its proposed truancy regulation with the changes and other changes suggested by staff the previous month.  One of the changes modified the definitions so that the regulation would apply only to full-day absences.  In response to my comment that this change rendered the regulation inconsistent the law requiring attendance at all 180 teaching days or 990 hours, the staff response in the Town Hall Agency Background Document was merely:

The proposed regulations are consistent with § 22.1-258 of the Code, which specifies actions to be followed by school personnel when “any pupil fails to report to school on a regularly scheduled school day and no indication has been received by school personnel that the pupil’s parent is aware of and supports the pupil’s absence” and further requires school personnel action: to develop an attendance plan after failure to report to school for “ a total of five scheduled school days for the school year;” hold a conference with the pupil and parent after an absence of “an additional day;” and file a complaint in the juvenile and domestic relations court or institute proceedings against the parent “upon the next absence.”

The plain purpose of § 22.1-258 is to control truancy.  The reasonable reading of "report" would "report for the full class day" in order to be consistent with the compulsory attendance law.  Nonetheless, they decided to read § 22.1-258 narrowly, rather than broadly to achieve its purpose, and to ignore the compulsory attendance statute.  Their sole rationale was convenience: Some divisions did not want to be bothered to obey the law as to part day absences.  So I raised the matter in a more exalted forum.

The regulation wound up back at the Attorney General's office for review of the lawfulness of the changes.  As of late November, the matter still was pending so I filed a Notice of Appeal, just in case the AG let the changes slip through. 

In late December (still 2012) I had tickets for a visit with my sibs in Florida (it was 75+ and sunny there; eat your hearts out), where I would be when my thirty days (pdf; see Rule 2A:4) from the notice ran.  There still was no action from the AG so I sued the Board on Dec. 14.

On Jan. 10, 2013, the Board rescinded the regulation and started a readoption to cure the procedural errors I identified in my Petition for Appeal (see the video at 2:37:54).  Unfortunately, they persisted in refusing to execute their duty to enforce the mandatory attendance laws as to part day absences.  Governor: You have a cure for this kind of scofflaw behavior.  So I wrote the Governor (again):


                                                                                                January 19, 2013

Governor Robert F. McDonnell
Patrick Henry Building, Third floor
1111 East Broad Street
Richmond, Virginia 23219

RE: Unlawful and Perverse Truancy Regulation

Dear Governor McDonnell:

The Education Department tells us:

Due to the strong link between attendance and successful completion of school, consistent monitoring of truancy and intervening with supports for students and families are critical.

Nonetheless, on January 10 the Board of Education voted to repropose a truancy regulation, 8VAC20-730, that ignores part-day absences from school. Aside from enacting an inappropriate policy, the regulation is unlawful. I write to ask that you object to the regulation as authorized by CODE § 2.2-4013

I.         The Regulation Repudiates the Board’s Duty to Enforce the Compulsory Attendance Statutes.

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

[Requires attendance] 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[1] petition or complaint against the parent upon a seventh absence.

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.

The Board’s reproposed regulation defines “unexcused absence” to include only instances where “the student misses his/her scheduled instructional school day in its entirety.” Thus, a student could skip out after homeroom without being subject to the (mandatory) enforcement requirements of § 22.1-258.

The rationale proffered by staff for this defect in the regulation is convenience. Yet the statute does not make an exception for the convenience of the school divisions or of the courts. Moreover, the purpose of the regulation must be to require attendance for the required “number of days and hours per day,” not to provide for the convenience of the schools or courts.

Staff also 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 narrowly, 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, even if 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 is absent” a sixth time and requires referral to court “[u]pon the next absence,” both without mentioning failure to “report.”

More to the point, we are obliged to read the statute to accomplish its purpose: every student must attend school for “at least 180 teaching days or 990 teaching hours.” Staff’s narrow reading of the failure to report language would lead to a regulation that is manifestly inconsistent with the will of our General Assembly.

Indeed, having officially interpreted the statute to apply only to full day absences, the Board would be challenged to later expand the reach of the regulation to part day absences. Further, the regulation as reproposed does not even require the reporting of part day absences. The Board thus seeks to codify its failure to enforce the mandatory attendance statute as to such absences.

Richmond has been ignoring § 22.1-258. Yet the Board now has created a regulation that would permit this abuse to continue for any student alert enough to attend school long enough to be marked “present” (or, even, “tardy”).

II.        8 VAC 20-730-20 Invites Up to 132 Separate Definitions of “Excused Absence.”

The reproposed § 20-730-20 of the regulation 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 produce scattershot enforcement of § 22.1-258 and render meaningless the data collected under the regulation.

III.      8 VAC 20-730-30.E Does Not Require Reasons for the Choice Between CHINS and Prosecution of the Parents.

Subsection 30.E of the reproposed regulation requires a report when a seventh absence leads to a complaint under § 22.1-258 but fails to require the division to set out the reasons for choosing among the three options under the statute.

Yet the choice should 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 a complaint 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.

Moreover, § 22.1-258 provides two courses as to the parent: § 22.1-262 merely provides for a “complaint against the parent,” without specifying any penalty while § 18.2-371 provides Class I misdemeanor penalties. Particularly where there is a second complaint against a particular parent, the division should be required to justify any failure to proceed under § 18.2-371.

This failure to require transparency is exemplifies the general absence in the regulation of any requirement for accountability. See the next item, below.

IV.      The Regulation Should Establish 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.” Either is a paltry number in a school division with 1,875 cases of ten or more unexcused absences (ten being greater than seven) during 2009 and, doubtless, nearly that number in 2011 and 2012.

These data suggest << 2.5% compliance with CODE § 22.1-258 by Richmond.

If there is to be no clear chain of accountability and no expectation of consequences for poor performance, we can expect that Richmond will continue to fail the children in its schools. The Board is ignoring its duty to correct that dismal situation.

V.        Conclusion

The Board of Education has deliberately adulterated the mandatory attendance statutes that it has the duty to enforce. Please object to this malfeasance pursuant to CODE § 2.2-4013.A or -D. 

With kindest regards, I am

                                                                                                Sincerely,

                                                                                                John R. Butcher
 

Copy:           Secretary Fornash (laura.fornash@governor.virginia.gov)
Secretary Decker (marla.decker@governor.virginia.gov)
Sen. Alexander (Senator@kennyalexander.com)
Del. O’Bannon (DelJOBannon@house.virginia.gov)
Superintendent Wright (patricia.wright@doe.virginia.gov)
President Foster (dfoster@fulbright.com)
Assistant Attorney General Belue (jbelue@oag.state.va.us)


[1] Child In Need of Services/Supervision.  See CODE § 16.1-228.

 

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Last updated 01/20/13
Please send questions or comments to John Butcher