Nebraska Family Forum

Our family’s history with the new truancy law predates the actual implementation of the newer legislation and requires some history of her health. My daughter Hailey has had health issues for most of her life. When she was young, she would get recurrent bouts of severe tonsillitis and strep throat. Unfortunately, with the changes in standard medical protocols from when I was a child, removing the tonsils was not an option until Hailey had been 6 cases of strep throat within a 12 month period.

Any parent who has had a child with a severe case of strep knows that it can be a protracted illness and the thought of having to see your child go through that 6 times in one year is just unbelievable. One time her tonsils were so swollen they were closing off her air way in her throat and we had to take her to the emergency room.

Her tonsils were finally removed when an excellent ENT physician here in town asked us about her sleeping patterns, when we told him she didn’t sleep well because of sever snoring, he advised us that removing her tonsils would be the proper course of action. This in fact helped with her snoring issue and we were hopeful that this would also result in less bouts of illness.

When Hailey started 5th grade she started to frequently suffer from sinus and upper respiratory infections combined with sever debilitating headaches. We worked with the building principal of the Elkhorn elementary school and she was able to keep up with her school work and maintain excellent grades.

The fight we were starting to wage was with the health care community. They couldn’t find a cause for her illness so they believed she was was either being abused at home or was making the illnesses up. I cannot even begin to explain how it feels to have an ill child, one you can’t seem to do anything to help, and then to be confronted with the implication that you are somehow abusing your child. The “please wait out here Mr. Horton, we would like to talk to Hailey alone” statement still burns to this day.

In 6th grade Hailey was hospitalized after a severe upper respiratory infection turned into a particularly nasty case of pneumonia. It was during this stay, purely by chance, she was evaluated by a pediatric infectious disease doctor from Children’s hospital that just happened to be on the floor for another patient. Within 20 minutes of talking to us they were convinced that our daughter had an immunological issue.

This was subsequently confirmed with simple blood tests. We were relieved that we knew what was causing Hailey’s illnesses, but were heartbroken to hear that it was chronic and that there are no treatment options for her. I have heard the lines “…should be able to live a relatively normal life” in movies and television shows, but I can tell you that they really are not comforting words. No parent has aspirations of a “relatively normal life” for their children. They want their children to live extraordinary lives.

With this diagnosis and with Hailey moving into junior high where the course work would be far more demanding, we were concerned with how her health issues would affect her school work. We worked with the Elkhorn Ridge Middle school staff and Hailey was accepted to the school’s Special Education department under what is called a 504 (other medical reasons) placement. This was done expressly to deal with potential “truancy” issues. 7th grade went by pretty much normally for Hailey with her missing well over 30 days.

It is at this point I will explain that Hailey’s immune deficiency prevents her from recognizing that she is getting sick and once she is, it is usually severe. Prolonged regimens of antibiotics are used to help fight the infections and these can last well over a month and a half when the normal regimen is 3 days to two weeks. Even after completing these, she is often not noticeably better. It is the migraine like headaches that are the most debilitating. Light, sound, and movement can bring about such pain that it causes her to be ill, or nearly pass out. Hailey completed 7th grade with A’s and B’s as she always does and we looked forward to 8th grade.

It was 2008, or Hailey’s 8th grade year when we were first introduced to truancy and Douglas County’s enforcement thereof. Due to a mistake at home, Hailey wasn’t being reported every day that she was out sick. It was my ex-wife’s assumption that since Hailey was “protected” by the special education 504 placement, the fact that at the start of the illness the school was contacted, and no notice to the contrary, we didn’t need to let them know that Hailey was out ill. This resulted in the quick accumulation of excessive unexcused absences for which we were turned over to the Douglas County Attorney’s office.

We were scheduled an “evaluation” meeting with the Douglas County Diversion Department. We were told to bring any documentation to explain the absences. We obtained all of Hailey’s medical records, copies of her Special Education paperwork, and a copy of her current grades (once again A’s and B’s). At or first interview we explained everything while the gentleman listened politely and took notes, then he asked us if we would allow him to interview Hailey in our absence. We agreed and 25 minutes later, we were informed that Hailey would be placed in a diversion program.

The program require that Hailey stay out of any trouble, maintain her grades, and that we document all further absences for the school and the diversion officer. The length of diversion was set at 6th months and would be concurrent over the summer. This resulted in approximately 3 months of diversion during school. We were dumbfounded. What about the medical records? What about the 504 placement? What about her good grades? None of that mattered and we were told that of course we could obtain legal counsel and fight the ruling, but we were given a very lenient program so we should be happy with that!

We now move on to Hailey’s freshman year in high school. Since she was moving to a new school and this transition occurred within the 2 year placement review that exists for all special education students. We met with the staff of Elkhorn High School and were very satisfied with the arrangements that had been put in place for her. They were very aware of her situation, they would work with us in any way they could, and we were to communicate every absence and keep them apprised of her overall health issues. This was done and there were no issues at all. The school modified her schedule to alternating days to assist her in staying caught up, worked with us when she was hospitalized late in December for a few days. The school year ended with Hailey getting her usual good grades and with nervous thoughts of moving to the new high school in Elkhorn.

Who would have guessed that 2010 would become such a dramatic year in our lives.

Things proceeded as they had the year before. We started the school year by meeting the staff of Elkhorn South High School that would have the responsibilities of managing Hailey’s case. Everything seemed in order and was going along fine until Hailey’s first bout of illness. Even though I called every day that Hailey was out ill and or that I was picking her up early because she wasn’t able to finish the day, I received a letter from the school informing me of the truancy law and warning me of Hailey's accrued absences. The letter also indicated the number of doctor’s notes that the school had received from me.

Since we had modified her schedule, at the schools insistence, with all of her core classes in the first five periods of the day in case she were unable to make it a whole day, I felt the issue was resolved. It was this assumption that everything was OK that made my reaction to the letter that we were being turned over to the County Attorney so demonstrative.

I was incensed that the school would do this. We we had done everything we were supposed to do and now they were turning us over to the authorities?! I fired off a very heated email to the building principal and it was his calm response that set me on the correct path in fighting this legislation. He informed me, and provided the actual verbiage from the bill, that the school’s hands were tied.

The language of the legislation made no provision for excused absences. He explained that no health issue was exempted from this legislation. Not even a student battling terminal cancer would be exempted. My level of frustration, anger, disillusionment, and sorrow for families facing far worse than us, was indescribable. 

It was then I realized that my fight wasn’t with the school, but with the County attorney’s office. I contacted all the news media I could. I told them about this upcoming mass truancy meeting that was being held at the county court house, my daughter’s story, and my belief that this law was absolute government over-reach into the area of parent’s rights. I initially was only contacted by Jon Athens, a news reporter for KPTM television (local fox affiliate). It was his story on Hailey’s situation that brought the new truancy law to the public’s attention.

On the day of the hearing, I and Hailey were at the court house with our stack of medical documentation prepared to present our arguments to the county attorney’s office. We were interviewed again by Mr. Athens and two other local television stations. We were nervously optimistic, if not frustrated by having to be there.

What we experienced in the jury assembly room that afternoon, was the best case for limited government I have ever witnessed. My daughter was so disgusted that she wanted to storm out on several occasions.

While the 100 or so families were waiting for the proceedings to begin, we were provided a very juvenile and condescending civics lesson by Judge Elizabeth Crnkovich. A civics lesson where she asked the assembly if we knew what the separation of powers was and if we could name the three branches of government. She proceeded to explain as if we were 6 years old what compulsory education was and how important education is for every individual and society as a whole.

She proceeded to introduce the assembled team. There was the county attorney supervising the proceeding, a representative from OPS, a person from Child Protective Services, a translator for Spanish speakers, and a volunteer from Douglas County Legal Aid Society. The last being there just in case anyone felt that they needed legal representation. I was most puzzled by this person’s presence, but it soon became clear. Judge Crnkovich’s condescension and my growing sense of unease aside, what was most chilling was when the county attorney in charge of the proceedings explained how the process would work.

The children were broken up into groups based on the reasoning for the absences provided by the schools. Each group would receive a public explanation of the actions the county attorney’s office would take in our case. The parents would then be asked to sign paperwork accepting the county attorney’s recommendations. She stated that we didn’t have to agree with the recommendations, but if we didn't the county attorney’s office would be free to take further actions.

While I was mentally coming to grips with the true meaning of this, Judge Crnkovich proceeded to explain what these further actions would be. We were told that the county attorney’s office would be free to pursue additional legal action that could extend as far as the removal of our children from our home. Isn’t this an example of the coercive methods of totalitarian states? This explained why the public defender was there!

My next shock occurred when 12 names were called and the group was assembled at the front of the room. This group was asked to sign a release allowing for an immediate onsite drug test. If they refused, they would be detained by local members of law enforcement while their disposition could be arranged. I sat there with my daughter dumbstruck. I thought to myself, …sure come to court to explain why your son or daughter is absent, oh and by the way sir or maam, we believe your child is on drugs and we demand that you give up your personal liberties or face immediate criminal proceedings! I really started to wonder about this proceeding. I even mentioned to Mr. Athens who was observing for his story that I am starting to wonder if I should have brought an attorney.

The next group was around 25-30 OPS students who were being recommended for diversion placement. The details of the diversion plan were not expressed to the whole group. But I sat in growing dismay as that group was escorted out of the room with the OPS representative.

While this was going on, Mr. Athens took the opportunity to ask Judge Crnkovish some questions he had about Hailey’s case. It was obvious by the Judge's response that she was very aggravated. When asked if she thought this particular piece of legislation had gone too far by entangling families like ours, her reply was that it wasn’t her place to comment on the legislation. Though she defended the intent by saying that truancy is a real problem and there are parents out there that will allow their children to miss school for no good reason. It took a great degree of self control not to earn myself a contempt citation and to keep my daughter from saying something we both would regret! Before the discussion could continue, Hailey’s name was called.

We went to the front of the room and I placed my sizable pile of medical records on the ledge between the panel and us. We were told that the county attorney’s office was aware of Hailey’s health issues as the cause of her absences and that we should not be called back for further action. Just as I started to sigh in relief, the following was stated, “We will continue to monitor her, however”. I was yet again dumbfounded! What is there to monitor I thought. She has a chronic illness! With as much control as I could muster, I asked in a clipped voice, “And what happens WHEN she is sick again?” The attorney replied, “We will make that assessment when it happens”.

I stood there for a few moments considering my options when the words of Judge Crnkovich came back to me, “…up to and including the removal of the child from the home.” I reluctantly signed the paper picked up the pile of medical records that I wasn’t allowed to present and escorted my daughter out of the room. We expressed dissatisfaction to the news media and left the building. As we were walking back to the car, my daughter broke down and screamed, “Just take me out of school and home school me! I am so done with this!” She then perceptively asked me, “We will have to deal with this next year won’t we?” Unfortunately, the answer appears to be yes.

The next turn in this story occurred when we heard about LB 463 which would expand the truancy law making it tougher and providing significant resources to the county attorney's office to enforce the law. The new additions to the law mandated that the school districts of the learning community write a plan in partnership with the county attorney's office for how to deal with students like Hailey. I was asked by the media if I was hopeful that this would take care of the issue for Hailey and I prophetically said, that I unfortunately did not have much hope that this plan would provide any protection for my family.

Last month I watched with doubt when the Governor, Senator Ashford, Dr. Breed, and the impacted superintendents had their press conference. I still hear the words, “common sense will prevail”. The following day, I contacted my daughter’s building principle to get specifics on the school district's plan for kids like Hailey. I was told that the procedures wouldn’t be any different this year than last. Reports to the authorities would go out at 10 and 20 days respectively, per the law. The school would include their recommendations, just like last year.

I was told that the difference would be that the school would intervene earlier to work on ways to get the students in the classroom. They would be asking my for permission to contact my daughter’s health care providers directly in order to determine what they could do to assist the child in getting back to the classroom. I sadly, but politely informed the principal that it looks like my fight isn’t over yet.

So far this year, Hailey has already missed one day of school. In fact, she became ill before the school year started and was seen prior to the first day of school by one of her doctors so I could start building my documentation. Since then, she has been seen a total of 3 different times, by three doctors, had numerous blood work and tests done, all while continuing to go to school sick because of this law that was designed to address the issue of truancy.

In addition to this, not only is my daughter going to school ill, but other parents are doing the same. This poses a very difficult situation for my daughter who is unable to fight off whatever illness that her school mates are spreading around. Although they may get better in a few days, it takes Hailey weeks or months.

Webster’s online dictionary defines Truant:

tru·ant  /ˈtruənt/ Show Spelled[troo-uhnt] Show IPA
noun
1. a student who stays away from school without permission.
adjective
3. absent from school without permission

Neither of these definitions apply to my daughter nor to many other children caught up in this legislation and yet they are being called "truant". I implore the state legislature, the various county attorney’s offices, the department of child protective services, the juvenile courts, Governor Heineman, and every parent of school age students, please join me in recognizing that there is an important distinction between excused and unexcused absences that protects families like mine from unwarranted state supervision and scrutiny.

I would ask that they reconsider the new law and consider amendments that will provide relief from the investigative aspect of this law. If lawmakers restore the important distinction between excused and unexcused absences student's like my daughter Hailey will be protected by her school administrators who are fully aware of her case and have the documentation of her health condition. There is no need for our family to receive further investigation by law enforcement.

I would also ask that lawmakers provide an exemption for any student who meets and is accepted into a school district’s special education program. As a federal program the guidelines are quite stringent and placement in such a program by definition requires adequate documentation as well as the involvement of both the school and parents. When a student in enrolled in special education their parents are given special protections under federal law and the same rights spelled out in detail should be retained when excessive absenteeism is the result of conditions related to their placement in the program.

If I can assist any other parent please feel free to contact me through the NFPF Facebook page.

God bless you all!
Mike Horton
Elkhorn Public Schools

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