News about a Michigan teen sent to jail for missing online assignments this spring served as a cautionary tale for how kids could still be punished for not attending class, even if their schools move to a remote learning solution that may not be workable or accessible for all kids.
Across the country and in Washington state, advocates and families are wondering: Could the same thing happen in Washington state, as dozens of districts start the school year virtually?
The short answer: yes. But flexible rules from the state around how school districts take attendance — and a new law that kicks in next summer — could make truancy cases less likely or harsh. That law prohibits the incarceration of youth for noncriminal offenses such as truancy, a failure to attend school.
The changes come as Washington school districts try to improve after a spring when it was hard to know who was showing up for online classes. During the last few months of the 2019-20 school year, when the coronavirus pandemic suddenly forced schools to close, many districts stopped taking attendance. But this fall, in an effort to hold schools accountable and help them stabilize, the state is requiring districts to track participation every day.
State officials and advocates weren't aware of any truancy cases that were pursued because kids didn't participate in coursework last spring while buildings were closed.
"The direction from OSPI (Office of Superintendent of Public Instruction) last spring was that districts should not pursue truancy, full stop," said Krissy Johnson, OSPI's attendance department director.
Students eight and older are considered truant if they have five or more unexcused absences in a month, or 10 absences in a school year, according to OSPI. In the 2018-19 school year, more than 85,000 of the state's 1.1 million students met this definition, according to the department. In 2018, 453 students were incarcerated for a truancy-related issue, according to the Washington State Center for Court Research.
By no later than the student's seventh unexcused absence, the law requires districts to file a truancy petition with a juvenile court. Districts must also try to notify and engage families to find attendance solutions. The students can also be referred to a community truancy board, composed of people who are knowledgeable about chronic absenteeism and charged with engaging the student and providing more help.
The last resort is involvement by a judge, who can issue legal consequences, including requiring a student to perform community service or sending them to stay in a juvenile detention facility for up to a week.
Guidance issued last week from the OSPI gives school districts more ways to take attendance in a remote learning setting and expands the definition of an excused absence to include common barriers students face to learning remotely, including not having internet access, caring for a sick family member or having to work a job to support their families.
OSPI also requires districts to roll out a system for preventing and responding to chronic absenteeism that is specific to concerns with education in the pandemic, including verifying family contact information, notifying parents of absences every day they happen and crafting workarounds for common barriers to remote learning.
Districts will have a grace period of about a month where they don't have to identify whether an absence is excused or unexcused, giving students time to acclimate to new standards and schools time to work out online attendance policies and access to instruction.
"I'm having a hard time imagining the path" to a court truancy petition given all these conditions, said Katherine Mahoney, assistant director of policy at OSPI.
Washington lawmakers have been working on ways to reduce harsh punishments for truancy. In 2019, legislators passed a law that will prohibit courts from incarcerating youth for "status offenses" — things that only get you in trouble with law because of your age. Some counties, including King, stopped detaining kids for truancy ahead of the law's implementation in July 2021. Advocates for the law pointed to the racial disproportionality of kids in the justice system. In recent years, Washington incarcerated more youth for status offenses than any other state in the country, the law stated.
Only about 11% of students who meet the definition of truant actually have petitions filed on them in Washington state, according to OSPI. The disparity is likely because of hesitation to penalize students or get them involved in the court system, or maybe a misunderstanding of the law by districts, a department report from last year suggested.
But truancy isn't the only way that kids get sent to jail for missing class. Kids on probation from juvenile justice facilities can be required to attend school or face jail as a result of violating probation agreements, said Kendrick Washington, youth policy counsel for the Washington state chapter of the ACLU. That process falls outside of truancy — but it's how the Michigan teen was jailed.
Washington and Karen Pillar, a managing attorney for TeamChild, which provides free legal representation for youth, said school districts must first work out how they're going to address lackluster engagement of families before thinking about attendance standards.
"Before attendance and truancy even comes up on the agenda, you can’t punish people for not showing up when the door to the building is so hard to reach for so many people," Pillar said.