An Overview of Admissions, Attendance, and Truancy1
Marquette M. Maresh
Attorney at Law
Walsh, Anderson, Brown, Schulze & Aldridge, P.C.
What’s the big deal about admissions, attendance, and truancy? Money makes the world go ‘round. The amount of state money a school district receives depends in part on the number of students in attendance and whether they are being served in special programs. Student absences, whether excused or unexcused, result in a reduction in state aid. To give you some idea of the dollars and cents involved, the state funding for each student in Average Daily Attendance (ADA) for the 1997-1998 school year ranged from $248 to $14,893 as calculated by dividing the school districts’ total state aid by their ADA.2 Thus, school districts have financial as well as educational reasons for keeping kids in school. This article will discuss the admission and enrollment of students, as well as the legal requirements related to keeping kids in school.
A school district is required to admit into the free public schools of the district all persons who are at least 5 and under 21 years of age on the first day of September of any school year in which admission is sought if any one of nine residency conditions exist. Those residency requirements are found in Texas Education Code § 25.001(b).
The board or its designee must establish the minimum proof of residency acceptable to the district.3 Likewise, the board may make reasonable inquiries to verify eligibility for admission. The school district may withdraw any student who ceases to be a resident and it may do so without providing procedural due process in the form of notice and a hearing beforehand.4 Of course, before withdrawing a student, the district must establish that the student does in fact not meet one of the nine residency requirements of Education Code § 25.001(b).
Residency is particularly important in the special education context because the student’s residence determines which school district must provide a free appropriate public education (FAPE).5 In the case of special education students, there often is a question about the residence of an adult student who has an appointed guardian. The Fifth Circuit Court of Appeals has ruled that when an 18 year old student is found incompetent and a guardian is appointed, the residence of the guardian determines the student’s place of residence for educational purposes.6 This is true even if the adult student resides in a different district than his guardian, e.g., when the student is placed in a residential facility outside the District. Thus, the guardian-ward provision of Education Code 25.001(b)(3) determines residency for an adult special education student who has an appointed guardian, rather than the parent-child provision of § 25.001(b)(1).7
Pursuant to Texas Education Code § 25.002(f), a student must be enrolled by the student’s parent, guardian, or other person with legal control under a court order. Of course, if the student is living separate and apart from his parent pursuant to Education Code § 25.001(b)(4), the student should be permitted to enroll himself. For enrollment purposes, the board may allow a person who shows evidence of legal responsibility for a child (other than a court order) to substitute for a guardian or other person having lawful control of the child under court order.8
No later than the 30th day after the student enrolls in public school, the parent or person with legal control of the student, or the school district the student most recently attended, must furnish to the district all of the following: (1) the child’s birth certificate or other document suitable as proof of the child’s identity; (2) a copy of the child’s records from the school the child most recently attended if he or she has previously enrolled in a school in Texas or another state; and (3) a record showing that the child has the immunizations required by Education Code § 38.001, proof that the child is not required to be immunized, or proof that the child is entitled to provisional admission.9 However, a student may not be denied enrollment in the school simply because a birth certificate or a copy of the student’s most recent education record was not provided.10
If the required documentation is not furnished to the district within 30 days of enrollment, the district must notify the police department of the city or the sheriff’s department of the county in which the district is located and request a determination of whether the child has been reported as missing.11 If a child is enrolled under a name other than the name that appears on the identifying documents or records, the school district must notify the missing children and missing persons information clearinghouse of the child’s name as shown on the identifying records and the name under which the child is enrolled. The information in this notice is confidential and may only be released to a law enforcement agency.
If a student under age 11 is enrolled for the first time at the school, according to Texas Code of Criminal Procedure § 63.019, the district must do three things. First, the district must request from the person enrolling the child the name of each previous school attended by the child. Second, it must request the school records for the child from each school identified by the first inquiry. If the person enrolling the child provides copies of previous school records, the district should request verification from the school of the child’s name, address, birth date, and grades and dates attended. Third, the district must notify the person enrolling the student that he or she must provide either a certified copy of the child’s birth certificate or other reliable proof of the child’s identity and age and a signed statement explaining the person’s inability to produce a copy of the child’s birth certificate not later than the 30th day after enrollment, or the 90th day if the child was not born in the U.S. If a person does not provide the valid prior school information required, the school must notify the appropriate law enforcement agency before the 31st day after the person fails to comply.
The school district is required to inform the parent or other person enrolling the child that presenting false information or records is a criminal offense.12 The district may include on its enrollment form notice of the legal penalties and liability for falsifying information on the form.13 If a person knowingly falsifies information on an enrollment form or submits false documents, that person is subject to civil and criminal penalties.
Texas Education Code § 25.085(a) requires that a child attend school each day for the entire period that a school’s program of instruction is provided. Attendance is compulsory for a child at least six years of age, or who is younger than six and has been previously enrolled in first grade, and who has not yet reached age 18.14 Throughout this article, this provision is referred to as the compulsory attendance law. The Education and Family Codes contain “truancy” laws to enforce this compulsory attendance requirement.
Last year the 76th Legislature expanded Education Code § 25.085(d) by adding accelerated reading, accelerated instruction, and basic skills programs to the compulsory school attendance requirement. Extended year programs and tutorial classes had already been incorporated into compulsory school attendance under the previous version of § 25.085(d). Thus, students who are required to attend any of those accelerated or compensatory programs are subject to the compulsory attendance laws for those programs the same as they are for a regular school day.
The 76th Legislature also revised Education Code § 25.085 to provide that a student who voluntarily enrolls in school or voluntarily attends school after his 18th birthday is required to attend school each day for the entire period the program of instruction is offered. The student’s enrollment may be revoked for the remainder of the school year if the student has more than five unexcused absences in a semester. Once the student’s enrollment is revoked, the student may be considered an unauthorized person on school grounds for trespass purposes as per Education Code § 37.107.
School districts also may apply Education Code § 25.085(e) to special education students over age 18. While the district must make FAPE available to the student, nothing prevents the school district from applying a neutral administrative rule to that special education student if he or she has more than five unexcused absences in a semester. However, before the school district revokes the special education student’s enrollment, the district should conduct a manifestation determination to rule out any connection between the student’s disability and the absences (i.e., any chance that the absences are a manifestation of the student’s disability).
The Compulsory Attendance Exemptions
The Education Code sets out numerous conditions that exempt a student from the requirements of the compulsory attendance law:
1. The student is at least 17 years old and has a high school equivalency certificate or diploma.15
1. The student attends a private or parochial school that includes a study of good citizenship.16
1. A student in a home school shall be exempt from compulsory attendance if he or she is pursuing in good faith a curriculum consisting of books, workbooks, or other written materials (including those that appear on computer or video), or any combination of these. The home school curriculum must be designed to meet basic education goals of reading, spelling, grammar, mathematics, and a study of good citizenship.17
1. The student is eligible to participate in the school district’s special education program under Education Code § 29.003 and cannot be appropriately served by the resident district.18
1. The student has a temporary and remediable physical or mental condition that renders attendance infeasible and the student has a certificate from a qualified doctor that specifies the condition, indicates the prescribed treatment, and covers the anticipated time of absence needed for remedial treatment.19
1. The student has been legally expelled by a school district that does not participate in a mandatory juvenile justice alternative education program.20
1. The student is at least 17 years old and is attending a course to prepare for the high school equivalency exam, and:
1. Has the permission of the student’s parent or guardian to attend the course;
2. Is required by court order to attend the course;
3. Has established a residence separate and apart from the student’s parent, guardian, or other person having lawful control of the student; or
4. Is homeless as defined by 42 U.S.C. § 11302.21
1. The student is at least 16 years old and attending a course to prepare for the high school equivalency exam and a public agency that has supervision or custody of the student under court order recommended the course or the student is enrolled in a Job Corps training program under the Job Training Partnership Act (29 U.S.C.§1501).22
1. The student is enrolled in the Texas Academy of Mathematics and Science.23
1. The student is enrolled in the Texas Academy of Leadership in the Humanities.24
1. The student is specifically exempted under another law.25
1. The student is observing holy days, including days of travel to or from a site where the student will observe holy days.26 Excused days for travel are limited to one day to the site and one day from the site. A student whose absence is excused for the purpose of observing religious holy days must not be penalized for the absence and is to be counted as if the student attended school for purposes of calculating the average daily attendance. Additionally, a student whose absence is excused must be given a reasonable time to make up work missed on those days. If the student satisfactorily completes the work, the absence should be counted as a day of compulsory attendance. Since the 76th Legislature amended § 25.087(b) in 1999, the parent is no longer required to submit a written request to the school district prior to the religious activity.
1. The student has a documented appointment with a health care professional during regular school hours, and the student commences classes or returns to school on the same day of the appointment.27 The appointment should be supported by a note or other document from the health care professional. A student whose absence is excused for a doctor’s appointment is not to be penalized for the absence and is to be counted as if the student attended school for purposes of calculating the average daily attendance. Additionally, the student must be given a reasonable time to make up any missed work. If the student satisfactorily completes the work, the day of absence is to be counted as a day of compulsory attendance.
Average Daily Attendance and Related Issues
Schools are required to provide a minimum of 180 days of instruction.28 In the case of disaster, flood, extreme weather, lack of fuel, or other calamity, the Commissioner of Education may approve fewer days of instruction.29 With the outbreak of school violence, many school districts have asked whether their ADA will be affected if they experience a bomb threat and have to evacuate school. The commissioner has stated that if the attendance rate for any particular day was at least 10 percent below last year’s average rate because of safety concerns, that day can be excluded from ADA computations.30
Attendance is determined by the absences recorded in either the second or fifth period of the day unless TEA has granted the district permission to use an alternate period to record absences.31 The period for attendance recording must be the same during the entire school year. As they say, there’s always an exception to the rule. If a student is not actually on campus at the time attendance is taken, that student may still be considered in attendance for Foundation School Program purposes under the following circumstances:
· Board-approved activities. The student is participating in a board-approved activity, which is under the direction of a member of the district’s professional staff or an adjunct staff member who has a bachelor’s degree and is eligible for participation in the Teacher Retirement System of Texas. 32
· Mentorship. The student is participating in a mentorship approved by district personnel to serve as one or more of the advanced measures needed to complete the Distinguished Achievement Program set out in 19 T.A.C. § 74.13(a)(3). 33
· Medicaid. The student is eligible for medicaid and participating in the Early and Periodic Screening, Diagnosis, and Treatment Program. These students may be excused for up to one day at any time without loss of ADA. 34
· Religious holy days. The student is observing a religious holy day, including travel to and from the site where the student will observe the holy day up to one day to and one day from the site. 35
· Health care appointments. The student has a documented appointment with a health care professional during regular school hours and returns to school on the same day as the appointment or begins the day at school on the same day as the appointment. 36
School districts frequently ask if they are allowed to provide monetary incentives to their students with perfect attendance in an attempt to increase their ADA. The decision whether to offer attendance rewards rests with the school board, since it is the board that is responsible for determining whether an expenditure is related to public education. Although districts may spend public funds to purchase incentive awards for students, school officials must continue to use sound discretion in the financial management of those funds.
Additionally, if a school district offers non-monetary rewards for perfect attendance, such as the benefit of skipping tests or final exams, the district must offer the same reward to a student who has an excused absence under § 25.087(b) of the Education Code. Section 25.087(b) prohibits students from being penalized for missing school under certain circumstances. That section also provides that once the student has satisfactorily completed all missed work, the day of absence is counted as a day of compulsory attendance, i.e., the student is in effect treated as not having been absent. To deny a student who successfully completed all missed work and whose absences are excused pursuant to § 25.087(b) from benefits based on perfect attendance is impermissible according to the Texas Attorney General.37
Attendance for Course Credit
To receive credit for a class, the student must have been in attendance 90 percent of the days the class is offered. 38 Excused absences do not count as a day of attendance toward earning course credit. Education Code § 25.092(a) does not distinguish between excused and unexcused absences; the student must be present for at least 90 percent of the class days in a semester to earn credit. However, an attendance hearing committee appointed by the school board may grant the student class credit in extenuating circumstances despite a failure to meet the attendance requirement. 39
Education Code § 25.092 requires the school board to appoint an attendance hearing committee which must include a majority of classroom teachers. The attendance hearing committee hears each case in which a student’s attendance falls below the 90 percent mark and the student or his parent or guardian has filed a petition for class credit. The committee may give class credit to a student because of extenuating circumstances according to the policies set by the school board. The school board must establish guidelines identifying those extenuating circumstances that would justify giving a student with less than 90 percent attendance in a class credit for the course. Additionally, the school board must establish alternative ways for students to make up work or regain lost credit because of absence due to extenuating circumstances. If the student is denied credit by the attendance hearing committee, the student may appeal the decision to the school board. The decision of the board may be appealed to the trial court of the county in which the school district’s central office is located.
School Attendance Officers
School boards are authorized to appoint school attendance officers to enforce the compulsory attendance laws.40 Probation officers or officers of the juvenile court are permitted to serve as the attendance officer.41 The attendance officer may receive compensation from the funds of the county or school district as applicable.42
For school districts without the workload or financial means to justify having an attendance officer, one option is to get together with a neighboring school district and hire someone to serve the districts jointly.43 Another option is to allow your local peace officer to serve as an unofficial attendance officer. The Education Code specifically gives any peace officer the authority to enforce the compulsory attendance law.44 The Texas Code of Criminal Procedure § 2.12 lists 30 different types of peace officers such as sheriffs, constables, and marshals to name a few, so there are plenty of options/officers to chose from. If the school board does not appoint someone to the position of attendance officer, then the statute requires “school superintendents and peace officers of the counties and districts” to perform those duties without additional compensation.45
The powers and duties of the school attendance officer are set out in Section 25.091(a) of the Education Code. According to that section, attendance officers have the power and duty to:
· Investigate each unexcused absence from school;
· Administer oaths and serve legal process;
· Enforce the provisions of the compulsory school attendance law;
· Keep records of all investigations performed in the discharge of duties;
· Make reports required by the commissioner of education;
· File a complaint against any person standing in parental relation who thwarts the compulsory attendance law as per § 25.093 of the Education Code;
· File a truancy complaint against a student for failure to attend school as per § 25.094 of the Education Code; and
· Refer truant students with absences illustrating “conduct indicating a need for supervision” to the juvenile court or justice court if the juvenile court has waived jurisdiction.
There are two specific limitations on the school attendance officer’s powers and duties.46 First, the attendance officer is not allowed to enter a private residence without permission except to serve lawful process on a parent, guardian, or other person standing in parental relation to a student subject to the compulsory school attendance law. Second, the attendance officer is not allowed to forcibly take custody of any student without permission of the parent, guardian, or other person standing in parental relation unless he is following a valid process issued by a court with jurisdiction.
There are three methods for handling compulsory attendance and truancy violations.47 First, the school district can file a formal complaint in the appropriate court against the parent who is thwarting compulsory school attendance. Second, the school district can separately file a complaint against the student who is truant for failure to attend school. Third, the school district can report the student to the juvenile court for engaging in conduct indicating a need for supervision. A truancy offense is a Class C Misdemeanor punishable by a fine up to $500.48
To determine if a student is truant, the school district must keep an accurate record of the student’s absences. Excused absences do not count for truancy purposes so it is important to identify what absences are excused under the law. According to Family Code § 51.03(d), an absence is excused when the absence results from:
· the illness of the child;
· illness or death in the family of the child;
· quarantine of the child and family;
· weather or road conditions making travel dangerous;
· the absence is approved by the child’s teacher, principal or superintendent; or
· the absence is based on other reasonable and proper circumstances.
An absence is also excused when a student who has been referred to a juvenile court for delinquent conduct or conduct in need of supervision (CINS) is absent from class because of the referral, as long as (1) the probation officer provides a written explanation for the absence to the school district, and (2) the student successfully completes all missed assignments.49 Likewise, an absence is excused when a student who has been referred to the Texas Department of Human Services or other welfare unit on the basis of abuse or neglect is absent from class because of the referral, as long as (1) the caseworker communicates the reason for the absence to district personnel, and (2) the student successfully completes all missed assignments. 50
Of course, a person required to attend school may be excused for temporary absences resulting from any cause acceptable to the teacher, principal, or Superintendent of the school in which the person is enrolled.51 Thus, the school district has some flexibility in excusing students as it deems necessary.
Unexcused, Voluntary Absences
How many absences are too many? The Texas Family Code sets out the number of unexcused absences a student may have. Before filing against a parent or legal guardian, a student must have had unexcused, voluntary absences from school on 10 or more days or parts of days within a six-month period, or on three or more days or parts of days within a four-week period.52 This type of excessive absence is referred to as “conduct indicating a need for supervision” or CINS for short. Only voluntary unexcused absences apply to the CINS count. What constitutes an unexcused absence is generally left to a school district’s discretion. If the student has the requisite number of unexcused, voluntary absences, the attendance officer is required to refer the child to the county juvenile probation department for action based on the student’s engaging in CINS.53
Contrary to popular belief, tardiness does not equal an unexcused absence. The Attorney General has concluded that tardiness to class generally does not constitute an “unexcused voluntary absence” for which truancy charges may be brought. However, the Attorney General noted that circumstances may exist where the tardiness is so egregious as to constitute an unexcused voluntary absence.54
Although marriage is one of several alternative conditions that creates an “emancipated minor” status, the list of statutory exemptions to compulsory attendance does not mention emancipation as a basis for exemption. Thus, a married student is subject to the compulsory attendance laws. However, a married 16 year old student may not be prosecuted for truancy under Family Code § 51.03(e) for exhibiting conduct in need of supervision.
Special Considerations for the Absent Special Education Student
When a special education student compiles excessive absences, some special precautions should be taken into account. Is it possible that the absences are related to the student’s disability? If so, is there anything the school can do to reduce those absences? Before a school district takes action against a special education student for excessive absences, the ARD committee should consider these questions. There are cases in which Texas hearing officers have ruled against school districts because the district failed to present thee issues to the ARD committee. For example, in David A. v. El Paso I.S.D., the hearing officer concluded that the district failed to provide the student with an appropriate education and ordered the school to reimburse the parent for private school tuition.55 The school argued that David’s lack of progress was due to his nonattendance. The hearing officer ruled that the district should have held an ARD meeting to determine if the absences were related to the student’s disability.
Districts that go through the ARD process in dealing with excessive absences have fared better in due process hearings. For example, in Korey D. W. v. Beaumont I.S.D., a student was retained in the 9th grade due to excessive absences.56 Prior to making the retention decision, the district conducted an ARD meeting to consider whether any possible link between the student’s disability and his absences. The ARD committee found no link, and the school imposed its customary policy. The hearing officer found for the school district.
Prior to initiating compulsory attendance complaints, or revoking course credit due to excessive absences, it is advisable to hold an ARD to address these issues. If there is a connection between the disability and the absences, the district should address the problem through behavior strategies and supports for the student. When there is no connection, the district is in a better position to follow through with its proposed action.
Keeping kids in school is a worthy goal for both the student and the school district. School districts, in addition to gaining additional ADA money, can better fulfill their purpose of educating students if those students are in school. Thus, there is an incentive for all to keep students in school.
1. Portions of this article are derived from Ms. Maresh’s earlier article entitled “Admissions, Attendance, Truancy, and Tardies: What You Need to Know About the Law,” published in Volume 16 of the Texas School Administrators’ Legal Digest.
2. TEA Answers On-Line, Question #13621, http://www.tea.state.tx.us/school.finance/faq
3. Tex. Educ. Code Ann. § 25.001(c).
4. Daniels v. Morris, 746 F.2d 271, 271 (5th Cir. 1984).
5. Susan R.M. v. Northeast Indep. Sch. Dist., 818 F.2d 455 (5th Cir. 1987).
7. Scott C. v. Richardson Indep. Sch. Dist., 122-SE-1291 (May 1992).
8. Id. § 25.001(j).
9. Id. § 25.002(a).
10. 19 Tex. Admin. Code § 129.1(b).
11. Tex. Educ. Code Ann. § 25.002(c).
12. Tex. Educ. Code Ann. § 25.002(d).
13. Id. § 25.001(i).
14. Tex. Educ. Code Ann. § 25.085(b).
15. Id. § 25.086(a)(5)(B).
16. Id. § 25.086(a)(1).
17. TEA v. Leeper, 893 S.W.2d 432 (Tex. 1994).
18. Tex. Educ. Code Ann. § 25.086(a)(2).
19. Id. § 25.086(a)(3).
20. Id. § 25.086(a)(4).
21. Id. § 25.086(a)(5)(A).
22. Id. § 25.086(a)(6).
23. Id. § 25.086(a)(7).
24. Tex. Educ. Code Ann. § 25.086(a)(8).
25. Id. § 25.086(a)(9).
26. Id. § 25.087(b); 19 Tex. Admin. Code § 129.21.
27. Tex. Educ. Code Ann. § 25.087(b); 19 Tex. Admin. Code Ann. §129.21.
28. Tex. Educ. Code Ann. § 25.081(a).
29. Id. § 25.081(b).
30. Comm’r Letter to the Administrator Addressed, May 17, 1999; TEA Answers On-Line, #24002, http://www.tea.state.tx.us/school.finance/faq.
31. 19 Tex. Admin. Code § 129.21(i).
32. Id. § 129.21(k)(1).
33. Id. § 129.21(k)(2).
34. Id. § 129.21(k)(3).
35. 19 Tex. Admin. Code § 129.21(k)(4); Tex. Educ. Code Ann. § 25.087.
36. 19 Tex. Admin. Code § 129.21(k)(5); Tex. Educ. Code Ann. § 25.087.
37. Tex. Att’y Gen. Op. JC-0099 (1999).
38. Tex. Educ. Code Ann. § 25.092(a) & (b).
39. Tex. Att’y Gen. LO. 90-013 (1990).
40. Tex. Educ. Code Ann. § 25.088.
41. Id. § 25.089(b).
42. Id. § 25.089(a).
43. Id. § 25.088.
44. Id. § 25.096.
45. Id. § 25.090.
46. Tex. Educ. Code Ann. § 25.091(b).
47. A discussion of how truancy complaints are filed is beyond the scope of this article.
48. Id. § 25.094(f); see Tex. Pen. Code Ann. §§ 12.41, 12.23.
49. 19 Tex. Admin. Code § 129.22(a).
50. Id. § 129.22(b).
51. Tex. Educ. Code Ann. § 25.087(a).
52. Tex. Fam. Code Ann. § 51.03(b)(2).
53. Tex. Educ. Code Ann. § 25.091(a)(6).
54. Tex. Att’y Gen. Op. No. DM-200 (1993).
55. David A. v. El Paso Indep. Sch. Dist., 308-SE-595 (Aug. 1995).
56. Korey D. W. v. Beaumont Indep. Sch. Dist., 322-SE-694 (Aug. 1994). See also Jimmy E. H. v. Dallas Indep. Sch. Dist., 079-SE-1194 (Feb. 1995).