West Virginia Eases Strict Truancy Law

Detention for truancy used to mean sitting in a classroom after school while your friends went out to play.

In West Virginia, especially for the past five years, detention for unexcused absences has too often meant something else entirely: appearing before a magistrate and, in many cases, ultimately being locked up.

For five unexcused absences. In an entire school year.

One in three children was considered truant in the state by 2012, the latest year for which statistics were available, while 40 percent of juvenile court referrals — about 2,750 children — were for truancy.

Now, after an aggressive campaign against the truancy law by the American Civil Liberties Union of West Virginia, state lawmakers have voted to ease the law, perhaps the strictest in the nation.

The ACLU dubbed its campaign “5 Days to Life,” (Twitter: #5daystolife), underscoring how youngsters’ involvement in the juvenile justice system for five unexcused absences can have impacts extending into adulthood. Among them: “collateral” consequences in seeking employment, housing or entering the military, for example, and  increased likelihood of becoming involved with the criminal justice system as an adult

“We wanted to make clear to legislators that sending a kid to the court system for truancy could have lifetime consequences, and they should look long and hard at whether shuffling kids to the justice system is the best approach,” said Jennifer Meinig, executive director of the ACLU of West Virginia.  “Once you touch the system, it’s like quicksand. It forever changes a youth’s life.”

When a youth gets involved in the system, it’s easy to get caught up in the vortex of parole violations and ensuing incarceration. In West Virginia, truancy is the most common offense for children put on probation or on an “improvement period” similar to probation , and children who fail to meet requirements can face court-supervised probation until age 21, which in turn can lead to incarceration.

And while the human costs of incarceration are incalculable — youths incarcerated for truancy spend an average of 400 days locked up — the monetary costs are pretty steep too: West Virginia spends an average of $100,000 per year to incarcerate a child, often in for-profit facilities, and even more money to imprison them out of state.

Meinig said “youth reporting centers” where truants will check in but not be locked up or stay overnight will sometimes be used as an alternative to incarceration.

The existing truancy law, enacted in 2010 as part of a get-tough policy on unexcused absences, reduced from 10 to five the number of unexcused absences leading to a court appearance, unless a parent or guardian shows up for a meeting with school officials.

The new law, which takes effect in June, will change the threshold for a court appearance back to 10 days while adding other provisions designed to return more truants to the classroom while keeping them out of the courtroom.

Among the changes:

• County attendance officers must make home visits to families of students suspected of truancy as part of an effort to return the child to school without the need for a court appearance.
• A parent or guardian of a student with three unexcused absences must receive a written notice of a required conference with a school official and be told a conference with the principal will be required if the student accumulates five unexcused absences.
• After five unexcused absences, a parent or guardian will receive a written notice of a required conference with the principal or another school official to “discuss and correct the circumstances causing the unexcused absences of the student,” according to the newly enacted law.
• Schools, the law says, must “take such steps as are, in their discretion, best calculated to encourage the attendance of students and to impart upon the parents or guardians the importance of attendance and the seriousness of failing to do so.”
• Health and disability-related absences are not to be counted as truancy. (Some schools had interpreted these absences as truancy, while others did not.)
• The law also forbids schools to count as truancy days during which students are suspended, as one school did in the case of “Brandi B.,” a decision backed by the state’s supreme court in 2013.

Students with 10 unexcused absences will still be referred to court, and the children as well as parents and guardians can be arrested.

For the first time in more than 80 years, both houses of the West Virginia Legislature are controlled by Republicans. But the truancy measure received overwhelming bipartisan support, approved 95-2 in the Senate and 31-2 in the House of Delegates.

The ACLU’s Meinig called the easing of the state’s truancy law a “good first step” but added, “Obviously, we thought it could have been tweaked and we wanted to push forward juvenile justice reform that didn’t make it into the legislation.”

For example, schools themselves do not have the final say over whether to refer truant students to court, as schools in many states do.

And Mishi Faruqee, national juvenile justice policy strategist at the ACLU, said courts aren’t equipped to deal with the causes of why kids miss school.

Stephen Skinner, a Democrat in the West Virginia House who cosponsored the truancy legislation, called the existing truancy law Draconian.

“We want kids to be productive members of society, and they’re not going to be productive  members of society if we’re incarcerating them off and on for their entire life,” Skinner said.

“We’re going to have evidence-based decisions about placements and we’re going to be able to intervene at the community level much sooner.”