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State truancy law amended to improve attendance, prevent jail time for parents

Family court
Greg Windle

This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.

In 2014, the fight to decriminalize Pennsylvania’s truancy laws escalated after a Reading County woman was found dead while serving a 48-hour jail sentence for her children’s truancy, after she was unable to pay a $2,000 truancy fine.

Her death catapulted the state’s ambiguous truancy law onto center stage in Harrisburg, where multiple bills were introduced to reform the law.

The bills were eventually combined, and as a result, this school year began under an amended state truancy law, or Act 138, written to improve school attendance, avoid exclusionary punishments, and deter parents from being jailed on truancy charges.

“The purpose is that schools and systems are to identify and address attendance issues as early as possible to preserve the families and avoid sending children to foster care,” said Alex Dutton, a fellow at the Education Law Center, whose work centers on the state’s truancy laws.

The law now divides students into two categories: “truant” (three or more unexcused absences during one school year) and “habitually truant” (six or more unexcused absences in the same school year). The previous law did not explicitly define truant.

Perhaps the biggest difference between the old law and the new one is that even “habitually truant” students can no longer be placed in Alternative Education for Disruptive Youth schools for truancy. And schools can also no longer use exclusionary discipline to punish students, such as suspensions and expulsions.

The law creates two sets of procedures that school districts must follow when dealing with the two types of truant students.

Once a child reaches that third unexcused absence and becomes truant, the school has 10 days to notify that child’s parents. The notification must include a description of the consequences for the parent or guardian if the child becomes “habitually truant.” It must also be in the language preferred by the parent.

If the student gets a fourth unexcused absence, the school must offer the student and their family a “student attendance improvement conference.” School staff must attempt to reach the parent or guardian both in writing and by telephone and must invite the student, their parent or guardian, others identified by the student, relevant school personnel, and the student’s service providers like case managers and behavioral health specialists.

In the conference, staff members discuss why the absences have been occurring with students and their parent or guardian. Together, they come up with a written plan to avoid further unexcused absences.

“Prior to this, schools were referring cases of families who were habitually truant without first intervening at the school level,” Dutton said. “We know from the research on truancy reduction that early intervention before truancy becomes entrenched is really important and must include individuals who know the child at the school level prior to getting the courts involved.”

The school must hold the conference even if the parent or guardian declines or fails to attend, and schools are responsible for documenting these conferences to prove they occurred. Schools cannot take further action until the conference has occurred, regardless of the number of unexcused absences accrued.

“We have a lot of kids coming into the family court system for truancy repeatedly because it doesn’t actually do anything to remove the barriers that existed for that child,” Dutton said. “All of the research on truancy shows that it’s always a symptom of something else going on in a child’s life.”

A 2014 study by the Children’s Hospital of Philadelphia found that children in foster care are more likely to fall behind their peers academically and are more likely to qualify for special education services and to experience even higher rates of accumulating absences.

Once students reach their sixth unexcused absence during the same school year, assuming they have already had a conference, they become habitually truant. If students reach this label before the age of 15, the school can decide to enroll them in a school-based or community-based attendance improvement program or refer them to the county’s children and youth agency for services. In Philadelphia, that’s the Department of Human Services or one of their subcontractors.

If the student is 15 years or older when they get their sixth unexcused absence, the school can still refer them to an attendance improvement program and still can’t expel or suspend them. But if the student accrues another unexcused absence, or refuses the other options offered, the school can refer the child to a local youth agency to evaluate whether the child should be labeled a dependent of the state and put into the foster care system.

The School District of Philadelphia has not been sending parents to family court over truancy for years, instead diverting them into truancy courts operated in partnership with DHS. So the problem that the old law caused in Philadelphia wasn’t jail time for parents, but a large number of kids entering the foster system as the result of truancy, despite research showing the foster system alone is not an effective deterrent, according to Dutton.

The city’s four truancy courts are housed in District buildings, and each court is run by a hearing officer appointed by the administrative judge of the city’s family court. The District sends a representative to testify about the student’s absences, and DHS sends a case manager from one of their subcontractors.

One remaining ambiguity is whether or not Philadelphia even has any “attendance improvement programs” available to divert students into instead of referring them to DHS.

The law defines an attendance improvement program as a “program designed to improve school attendance by seeking to identify and address the underlying reasons for a child’s absence.”

“The big question for Philadelphia is whether or not regional truancy court meets that definition or is it just designed to divert as many cases away from family court as possible,” Dutton said.

“My experience in truancy courts is that it is designed to make parents aware that their children have been habitually truant, and the consequences of that, but it doesn’t address the underlying reasons for a child’s absences. It’s my hope that the regional truancy court will take a hard look at itself.”

Jail time has been reduced from five days to three days, and parents can only be jailed if the court finds that the parent had the ability to pay the fine and that their failure to pay was intentional.

The burden of proof has now shifted from the parent to the court. Previously, parents had the option of contesting absences by proving that the student actually had a good reason to be absent. Now, the burden of proof is on the court, which must prove that each absence was not justified.

The new law also affords more discretion to judges in some areas. For example, it is now up to judges to decide whether or not to forward a student’s truancy conviction to the Department of Transportation for an automatic license suspension. Youth who have had their driver’s license revoked can now apply for an Occupational Limited License to get to or from work or school.

The law also increases the amount of money that parents can be fined for habitual truancy: up to $300 for the first offense, $500 for the second, and $750 for the third and any subsequent offenses. However, unlike the old law, the new one explicitly defines one “offense” as a citation for habitual truancy, regardless of the number of unexcused absences in the citation.

Some judges interpreted the old law, which was written ambiguously, as having the authority to fine a parent as much as $3,000, or one “offense” for each unexcused absence, according to analysis by the Education Law Center.

The law also shifts more responsibility onto charter schools.

Previously, charters were simply required to report unexcused absences to their school district, and it was the district’s responsibility to deal with truant charter school students. Now charters report unexcused absences directly to the Pennsylvania Department of Education, and the charter operators are responsible for dealing with truant students in accordance with the law.

Students can now apply to have their records expunged if they obtain a high school diploma or a state-approved equivalent such as a GED.

Reporting on issues related to youth in and exiting the child welfare system is made possible by a generous grant from the Samuel S. Fels Fund.

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