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Criminalizing Truancy

by ANNETTE FUENTES

The judge peered down at Ashley Derrick from the bench and scolded her for being late to a 9 a.m. hearing in his Garland, Texas, courtroom. Derrick, 26, explained that she’d hit traffic coming from one of her two jobs as a phlebotomist. Her alleged crime: contributing to her child’s non-attendance at school, a misdemeanor punishable by a fine of up to $500 and community service for each unexcused absence.

“Your son has six lates to school and two leaving early,” Judge John Sholden declared. “How do you plead?

“Not guilty,” answered Derrick. The judge set a pretrial hearing for June 27.

Outside the courtroom, Derrick, who was dressed in brightly printed scrubs, looked weary but resigned. Her son Marcus, 7, had indeed missed class time but it was for medical appointments. “My son has chronic asthma and also ADHD,” she said, “and he panics a little when he has breathing problems. So we have him seeing a counselor.” Marcus’ doctor had been tardy herself in providing mandatory excuse notes to his school, prompting the principal to file a truancy case in the Texas court. “There’s no flexibility,” Derrick said. “But I know I will have the doctor’s notes, so I pled not guilty.”

The harried African American single mom was among the hundreds of parents and students who attended truancy court on that single May day in Dallas County. Unlike Derrick, most pled guilty or no contest and were given a fine of at least $195, due in 30 days. Students risked losing their drivers licenses, too, and those who failed to appear in court for one reason or another risked arrest warrants.

Dallas-area school districts are not uniquely harsh on suspected truants. Around the country, school administrators, elected officials, and prosecutors are tackling the truancy problem through the criminal justice system, ratcheting up enforcement, slapping students and parents with big-dollar fines, and threatening jail time. Atlanta, Georgia, and Lynchburg, Virginia sharpened their truancy policies this year with the aim of increasing prosecutions. In Detroit, Los Angeles, and Compton, the police sweep the streets for truants and enforce daytime curfew laws.

Supporters say the truancy crackdown is critical to improving test scores and high school graduation rates, but there’s a fiscal motivation, too. With school budgets cut to the bone, every dollar counts, and each absent child represents lost state funding. Some districts get a share of fines levied by the courts, providing an additional incentive for issuing tickets. While a recent study from the non-profit Get Schooled found that truancy cuts across all demographics, those most affected by harsh enforcement are low-income families whose financial struggles can contribute to attendance problems, and students like Marcus Derrick with health problems or learning disabilities, who may require costly educational interventions that school districts want to avoid by punting the problem off to the courts.

The absurdities of harsh truancy policies made headlines in May when a Houston-area judge jailed Diane Tran, 17, for missing too much school and fined her $100. News reports revealed that Tran was an 11thgrade honor student working two jobs to support siblings after her parents divorced and moved out of state. Tran’s treatment attracted the public’s attention, but thousands of students and their parents are regularly churned through similar courts without public scrutiny of the process, its costs, or its effectiveness.

For their part, education experts welcome the focus on attendance but say fines and threats of jail are the wrong approach for all but exceptional cases. “We’re paying more attention because education is more necessary than ever before,” said Joanna Heilbrunn, senior research and policy analyst at the National Center for School Engagement. “But there is always a reason a kid is not in school, and just fining the family doesn’t do anything. Most families are low income and the barriers stem from income issues.”

That’s true in Atlanta, where families are still swamped by unemployment and foreclosures from the busted housing market, says Jessica Pennington, executive director of the nonprofit Truancy Intervention Project. “Since the economic downturn, the state budget is shrinking and schools are dealing with the same problems and lot less resources,” she said. “In the past two years, we’re seeing families we wouldn’t have seen before. Construction workers who haven’t worked in two years. Lots of middle-class families who lost their houses and moved to apartments. The stress level in the home is high, kids are acting out, and parents are struggling with sustenance issues. Kids missing school is not such a priority. They are dealing with keeping the lights on.”

There are no accurate nationwide data on truancy in part because states employ different definitions. California considers a child truant after three incidents of either unexcused absence or being late 30 minutes or more. Chronic truancy is missing 10 percent of class–or 18 days–during the school year. Texas defines truancy as missing three full or partial days in a four-week period, or 10 days in six months.

But may education advocates say districts should be looking into the deeper reasons for chronic student absences. “If what matters is attendance, it matters how many days you miss for whatever reason,” said Robert Balfanz, of the Center for the Social Organization of Schools at Johns Hopkins. Balfanz co-authoreda May 2012 study that estimates chronic absenteeism at 10 percent to 15 percent among U.S. public school students, with highest levels among poor students of all racial and ethnic backgrounds. “Chronic absenteeism… is how poverty manifests itself on school achievement,” Balfanz said. “It isn’t an argument for making truancy criminal.”

The Truancy Fine Factories

Tyler M., 16, and his mother stepped up to Judge Sholden’s bench in the Garland, Texas truancy court that same May morning. Sholden read the charge: 12 unexcused absences, a first offense. The teen pled guilty and the judge hit him with a $195 fine. Stung by sticker shock, Tyler asked, “Why do I have to pay a fine?”

“It costs $450,000 to run this courtroom. Who’s going to pay for it?” an annoyed Sholden said. “Do you think the taxpayers of Garland should pay for it?”

The economics of truancy enforcement are boldly on display in Texas’ courts. From 2005 to 2009, truancy cases filed by public schools in the Lone Star state grew annually, from 85,000 to 120,000. Truancy courts are the traffic courts of public education, processing hundreds of parents and students daily in assembly-line fashion–even during summer months. The Dallas courts alone handle an average of 35,000 cases a year, and their revenue is eye-popping: just over $2 million in FY 2009 and nearly $1.8 million in FY 2011. Truancy court was founded in 2003 because the problem of unexcused absences was overwhelming the juvenile court system; now Dallas has five truancy courts, each with its own judge and staff. “They’ve developed a whole system in Dallas that has to feed itself to justify its existence,” said Deborah Fowler, deputy director of the legal advocacy group Texas Appleseed.

As in other states, truancy prosecutions seem motivated at least in part by the loss of state education dollars from student absenteeism. (Public schools receive funding based on their daily census, which is why attendance is taken every morning.) “In Texas, $4 billion has been cut from the education budget,” Fowler says. “When they start looking at where they’re losing money, truancy and low attendance are an obvious place. It’s a way to increase funding.”

There’s another potential revenue stream flowing from truancy courts. Under the Texas education code, school districts may enter into a memorandum of understanding with the truancy courts in their county to divide up the booty. “For some districts, it’s standard operating procedure to share fines with the court,” said Lisa Graybill, former legal director of the ACLU of Texas. “Too many people are unaware or indifferent to that.” Fines can cost up to $500 per truancy, due within 30 days unless a judge gives an extension. For many students and families, it’s another debt they can’t pay. And if fines aren’t paid, they can convert into an arrest warrant when a student turns 17.

In Hidalgo County, in southwest Texas, that’s exactly what happened to some 60 teenagers from poverty-level families who racked up thousands of dollars in truancy penalties. In 2010, the ACLU filed a class-action lawsuit on behalf of two 18-year-old plaintiffs who’d been sent to adult detention facilities for failure to pay their fines. Francisco de Luna owed more than $11,000 in truancy fines, accumulated over five years; he was sentenced to 132 days in jail. Another student, Elizabeth Diaz, was sentenced to jail for 18 days because she couldn’t pay $1,600 in fines assessed when she was 14 years old. “Our clients were indigents. They weren’t prepared for the choice of going to jail or paying exorbitant fines,” said the ACLU’s Graybill.

Diaz’s owed her school absences to chronic illnesses when she was younger–fibromyalgia and bipolar disorder–but she was on track to graduate high school until she was jailed. When her school learned of her arrest, it withdrew her enrollment, and she missed critical state exams, Graybill said.

De Luna also faced serious challenges that contributed to his absenteeism. His father died when de Luna was 13 and his family’s finances, along with the teen’s mental health, suffered. “He got into trouble in school for saggy pants, talking back to teachers–not unusual,” Graybill said, “and he started accruing these criminal tickets.” Eventually, De Luna dropped out. “It’s sad because with some intervention he could have stayed in school,” Graybill said. “Dropping the hammer on these kids is not an effective way to keep them in school.” The ACLU lawsuit forced a change of policy in Hidalgo. The court must now determine if students are indigent, and if so, judges cannot jail them for failure to pay fines.

Exorbitant fines and jail time also plagued families in Lebanon, Pennsylvania, where the public school district has been using the courts to deal with a very real attendance problem. Last year, the Public Interest Law Center of Philadelphia and the NAACP filed suit against the Lebanon School District, charging officials there with imposing fines far in excess of legal limits. The complaint alleges that the district went on a veritable ticketing spree between 2005 and 2010, filing 8,000 truancy violations and collecting $1.3 million in fines, all of which ended up in the district’s coffers. One plaintiff, a single parent named Omary Rodriguez-Fuentes, received 29 truancy tickets over three years along with fines totaling just under $7,000. To take care of the debt, Rodriguez-Fuentes was paying $150 a month from her disability income. State law limits fines to $300 but Lebanon schools and the truancy court routinely violated those limits, according to the complaint. In July, the court hearing the lawsuit granted it class action status, adding 170 more plaintiffs to the original four.

Lead attorney Michael Churchill says that shifting demographics over the last decade are at the core of Lebanon’s truancy woes, with newer Latino residents now forming a majority in the schools and longtime white residents feeling resentment. Truancy is at 14 percent and the dropout rate is 45 percent. “For the most part, the Hispanics don’t have lot of interaction with the rest of the community,” he said. “Lots of students aren’t comfortable or doing well in school, so there’s a high dropout rate. The schools’ reaction was, instead of offering services, they went after truants.”

The lawsuit is far from resolved but it has forced the district to repay about $400,000 in illegal fines to families; the courts there are now following the letter of the law in imposing new fines. Churchill is still fighting for $108,000 more in refunds for plaintiffs, and a trial is scheduled for September. Rebecca Young, an attorney for the district, declined to comment for this article. Meanwhile, the district’s ticketing blitz has slowed, which school officials attribute to the lawsuit making parents more careful about truancy.

Truancy Court’s ‘Secret Society’

In Rhode Island, the truancy court program has become infamous, not for sky-high fines and voluminous dockets but for the large proportion of students with learning and other disabilities who have landed in its iron grip. For Rozanne Thomasian and her daughter Cheyenne, the nightmare began in 2007 when Cheyenne was in seventh grade. Cheyenne, who attended a public school in South Kingston, had an Individualized Education Plan (IEP) because of severe ADHD and Tourette Syndrome and the medications she was taking for anxiety. The meds caused stomach problems, which in turn caused school absences and tardiness.

Thomasian learned that the school had filed a truancy petition for Cheyenne’s excessive absences when a truancy officer came to their home. She had no idea she needed doctor’s notes to justify her daughter’s absences. “There were no set guidelines,” Thomasian said in a phone interview. “Each district had their own definition of truancy–if a child is late once, or five times–there was no consistency from school to school, even in the same district.”

Thomasian, a single mom who works as a nurse, and Cheyenne fell into the rabbit’s hole of the family court’s truancy diversion program. There they remained stuck for three years. Without understanding the legal process or possible penalties, mother and daughter signed away their right to be heard in either family court or truancy court at their very first hearing. The magistrate didn’t question the merit of the school’s petition but instead ruled Cheyenne “wayward,” putting her under court supervision that required weekly meetings. Due process didn’t seem to mean much during the hearing; no transcripts were made of the court proceedings, making it impossible for the mother to appeal her case.

“It’s like a secret society. How many parents and children can we scare?” said Thomasian, who attended many of the hearings with Cheyenne. When the judge threatened to send Cheyenne to detention during one meeting, Thomasian contacted the ACLU. Soon after, the magistrate declared that Cheyenne had “graduated” from truancy court.

“What’s going on with Rhode Island is schools are using the truancy program for kids who are difficult to educate,” said the ACLU’s Courtney Bowe. She is the lead attorney on a lawsuit against the courts and school districts that participate in the truancy program. “Rhode Island is not alone, but because of the way they define truancy, they’ve thrown the rule book out of window,” Bowe said.

Cheyenne was not the only student with disabilities ensnared in the truancy program. ACLU attorneys and their allies found that one-third of students under truancy court supervision had Individualized Education Programs. A much higher number had disabilities that had not been diagnosed by their schools. One plaintiff, Alin N., 13, had sickle cell anemia and missed school during bouts of extreme pain. Truancy court founder Judge Jeremiah Jeremiah issued an arrest order for the boy and threatened his mother with jail if he didn’t go to school one day in February 2010. His mother sent him to school, but once there, his condition became critical and the school had to call an ambulance.

“Our state law is so clear that kids with disabilities are not supposed to be caught up in truancy proceedings if their absences are related to their disabilities,” said Anne Mulready, supervising attorney at the Rhode Island Disability Law Center, who is involved in the lawsuit. “But as more cities face budget cuts, we’ve seen schools unwilling to do things that five years ago, before the economy took a turn for the worse, they would have done. Sometimes it appears schools have done an end run around special ed services by using truancy court.”

Fifteen plaintiffs have joined the suit, which is currently bogged down in procedural issues. After it was filed in 2010, five districts dropped out of the truancy program altogether and Judge Jeremiah retired. A new judge issued clearer guidelines for truancy court, including a rule that all hearings must be recorded. Family Court spokesperson Craig Berke declined to comment on the pending lawsuit but he said the court is proud of what he described as a successful program. Some school districts dropped out of the program, Berke said, because they did not want to incur the cost of litigation, but he said that they planned to use the truancy courts once the matter is settled.

L.A.’s Curfew Problem

Los Angeles has attacked its truancy problem, which reached about 36 percent last year, with a daytime curfew and aggressive policing and tickets for all those violating it. The crackdown hasn’t managed to improve attendance, but it has sent thousands of kids and their parents to court and incited a student revolt against the policies.

Cinthia Gonzalez joined the campaign against the truancy sweeps as a sophomore at Roosevelt High, where she was editor of the newspaper and a college-track student. But good academics didn’t shield her from truancy enforcement. “Three cops stopped me one day a block from school,” she recalled. “I wasn’t even supposed to be in school anyway. I was really mad. It was embarrassing.” She was lucky the police let her go without a fine. “My friends who got tickets were outraged. They had to pay $250 and their parents would have to miss work to go to court,” Gonzalez said.

From 2009 to 2011, L.A. school police issued 33,500 tickets to students on or near school campuses; nearly a third were for violations of the daytime curfew, according to data obtained by the Community Rights, the ACLU of Southern California, and public counsel. City police also conducted truancy sweeps and were known to ticket tardy students on their way to school, sometimes handcuffing them.

Curfews are a popular prescription for curbing crime, but there is scant proof they work. A widely cited 2003 study by Kenneth Adams, funded by the National Institute of Justice, surveyed the research and found little “to support the argument that curfews reduce crime and criminal victimization.” Enforcement generates arrests for curfew-related violations, which Adams suggests “needlessly add to the criminal histories of some juveniles.”

The Community Rights Campaign spent five years fighting rampant curfew ticketing of L.A.’s public school students, who are overwhelmingly black, Latino, and low-income. They spoke about unreliable public bus service, neighborhood violence, health issues, and financial hardships at home as hurdles to kids getting to school on time. Many students told of ditching school rather than risking a fine for being late.

In the spring of 2011, the L.A. police halted ticketing tardy students and stopped running truancy sweeps during the first hour of school. In October, the school police followed suit. Last February, the L.A. City Council amended the daytime curfew: no tickets for students late to school; no fines or court appearances for the first two curfew violations; and fines for a third offense limited to $20.

But the campaign’s broader agenda is to improve the quality of L.A.’s public schools to entice students to attend, not avoid, class. Truancy is a symptom of schools’ failure, not the students’, says campaign director Manuel Criollo. “Officials say if you don’t go to school, you’re going to end up in jail. The automatic assumption is that you’re up to no good, and that’s the wrong response to what’s happening in public schools,” he said. “What is the responsibility of the school? If they have a 50 percent failure rate, it should indicate something is wrong.”

Annette Fuentes is an EHRP contributor and a Bay Area journalist and author of “Lockdown High: When the Schoolhouse Becomes a Jailhouse” (Verso).

This story was produced by the Economic Hardship Reporting Project.

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