When keeping a sick child home from school is a crime
AUTHORITIES SAY THEY NEED A “HAMMER” TO DEAL WITH “EXCESSIVE” ABSENSES.
BUT A SICK CHILD IS NOT A NAIL.
In August of 2011, more than 20 families were forced to gather at the Douglas County Courthouse for an exercise in mass humiliation that sounds like something out of the 17th Century.
One-by-one the families, parents and children, were called to the front of the room to be publicly cross-examined by a deputy county attorney.
Their crime – and, in Nebraska, it’s literally a crime: During the previous school year, the children had been home sick from school for more than 20 days.
One family was struggling with cancer, two had children with mono. Another was trying to cope with the deaths of his mother, sister and uncle.
The Omaha World-Herald described the process:
One-by-one over the course of two hours, the families were called to the front of the room. [Mary] Reynolds-East and her husband [whose son had suffered from mono and strep throat] were next to last.
Deputy Douglas County Attorney Jordan Boler told them they were called in because their son had missed more than 20 days for two years in a row. "That's a lot," she said.
Boler asked whether the couple had done something to prevent their son from getting sick again this year — a question that frustrated Reynolds-East. "There's not much we can do," she said later. "Give him vitamin C?"[1]
If the family can’t somehow come up with a cure for strep throat and other diseases this year, they could face a lot worse than humiliation.
In a bizarre move, apparently unheard-of in any other state and diametrically opposed to what national experts consider best practice, Nebraska has erased the distinction between an excused and unexcused absence from school. The very term “truancy” was replaced by “excessive absences.”
Any student absent for more than 20 days, for any reason, automatically is referred to the county attorney, who then has the option to prosecute the child, or charge the parents with “educational neglect” and take the child from them.
The percentage of Nebraska families likely to be affected ultimately will be significant. In just one year, Nebraska schools referred 9,178 students to county attorneys as a result of the 20-day law.[2] That’s about three percent of Nebraska’s students in just one year.[3] Over the course of the 12 years that a child typically is in school, just think of how many families will experience at least one year where some combination of illness and family emergency might push them over the 20-day limit.
Authorities keep saying they won’t really take away children or do anything similarly drastic in cases where all or most of the absences are “excused.”
But the World-Herald reports that KVC, the “lead agency” serving southeast Nebraska (in effect, the equivalent of DHHS in that part of the state) says the number of families under their supervision because of school issues has quadrupled since the new law took effect. The story doesn’t say how many, if any, are in foster care. But it does note that KVC itself wasn’t expecting this:
Sandra Gasca-Gonzalez, president of KVC's Nebraska operations, said she was surprised at the numbers. In other states where she has worked, truancy is an issue handled by schools, not the juvenile court system, she said. [4]
In some parts of the state, it doesn’t take 20 absences to bring DHHS into a family’s life. In 11 school districts in Douglas and Sarpy counties, as few as six absences leads to a referral to an intervention “team” that includes DHHS.
Even the threat is doing enormous harm to families. A child abuse investigation – and when DHHS is involved, that’s what it is – is not a benign act. Taking a child aside and asking questions about the most intimate aspects of her or his life, even in private, let alone as part of a public shaming, can do serious emotional damage. And once DHHS is involved for one reason, it can go on the ultimate fishing expedition looking for other alleged “abuse” or “neglect.”
During the mass humiliation session in last August “one elementary-age girl clung to her mother, who explained the girl was terrified about what might happen to her. Illnesses had put the child over the 20 day mark.”[5]
Twelve-year-old Kylie Johnson also is under surveillance by a county attorney. A combination of illnesses, family trips, and being a victim of bullying pushed her one day over the legal limit for absences. The fact that she still gets As and Bs doesn’t matter. “They put me under the impression I did something terribly wrong,” Johnson told a legislative hearing.[6]
All that stress is bound to affect schoolwork. Beth Meyer of Lincoln, whose daughter missed 22 days of school because of illness, told the hearing “You’re taking my child, who is legitimately sick, through the court system and taking her from an A and B student to an F student.”[7]
Older students have another option. A 16-year-old who had endured years of stress in her life managed to reduce her absences from 40 in one semester to only three the next. But instead of praise, she was blasted in open court by a county attorney because she didn’t get her absences down to zero. He recommended juvenile detention – jail. Fortunately, the judge did not agree.
But rather than face any more torment from the system, the 16-year-old did the one thing still within her power: With only two math classes left before graduation, she dropped out.[8]
Proponents of the law argue that it’s working – attendance is up. But the fact that more students are in school does not mean that more students are getting an education.
One parent sent her child to school with a fever of over 100 degrees – because she was terrified of exceeding the limit on absences.[9] That’s not unusual, according to Dr. Lisa Whitcomb, a pediatrician at Methodist Physicians Clinic in Omaha:
I see parents sending their children to school ill because they’re afraid they have missed too many days of school. This is concerning both for the child and their classmates that might be getting exposed to infectious diseases. … I have seen good parents taken to court over what seem to be to be legitimate absences. I have one patient in particular who has been taken to court twice. Mom also has been threatened with CPS for the absences of her child, who has recurrent illnesses and does well in school despite her absences.
All of this is contrary to best practice in child welfare and juvenile justice. In 2009, one of the nation’s leading child welfare and juvenile justice think tanks, the Vera Institute of Justice found that roughly half the states don’t even have “educational neglect” statutes – they leave it to the schools.
The study was commissioned by the New York State agency that oversees county child protective services agencies (CPS is a county function in New York). In it, the Institute recommended that if agencies like DHHS are not going to get out of educational neglect cases entirely, at least for older children, they should restrict the cases with which they get involved and reduce their role to offering genuinely voluntary help through a process called “differential response.” The study also cited a series of better options for dealing with actual truancy.[10]
But in Nebraska, Judge Elizabeth Crnkovich reportedly said the law is needed as a “hammer” to get families to cooperate with the “help” she and others want to offer. If she said that, it reveals the same appalling lack of knowledge of child development she displayed when she tore seven children in a “safe haven” family from the loving aunt who took them in because the aunt had not yet had time to buy each a separate bed and, yes, had not yet had time to enroll them in school (see p. xx).
A higher court judge understands this. According to the World-Herald:
Nebraska Chief Justice Michael Heavican to warn that courts are the "most expensive and least flexible" way to deal with truancy. He said courts should be reserved for the most difficult and unresponsive truants, while others should be handled through school interventions and court diversion.[11]
But even a diversion program causes tremendous needless stress when there is nothing to divert.
A “hammer” is not necessary to deal with a sick child because a sick child is not a nail. Neither is a child whose only crime is to have been a victim of bullies.
That’s what happened to Victoria Herrera’s daughter. Two years of torment for one of the very few Latino students in the Millard Public Schools[12] culminated toward the end of her third grade year when several classmates beat her with sticks on her way home from school.
When the school refused to protect her child (not our problem, said the school district, it happened on the way home) Ms. Herrera withdrew her child for the last 24 days with the intention of home schooling her.
With a new principal at the school the next fall, Ms. Herrera decided to give the school another chance. But her daughter was placed in the same class as one of the worst of the bullies – and Ms. Herrera was told she and her daughter were being referred to the county attorney for “truancy.”
On the day of the first court hearing, her daughter was assaulted again, by another student, this time in the school. But again, the school did nothing. Well, not quite nothing: The principal kept the fourth grader in the office for three hours until she “admitted” the assault was an “accident.”
DHHS was called in to investigate – no, not the people who bullied Herrera, but rather Herrera’s mother. To her face, they told Ms. Herrera that clearly this was not a case of neglect. Between that and her own lawyer saying she should just plead guilty, she agreed to jump through all their hoops. Then the DHHS workers said exactly the opposite to the court – which promptly gave DHHS legal custody of the girl, though she was allowed to remain in her own home, under the constant surveillance of DHHS.
The ordeal ended only when the “guardian ad litem” named to represent the child’s best interests actually did just that. She recommended that the case be dismissed. The child is being home-schooled.[13]
State Sen. Tony Fulton has proposed a simple, sensible solution for all this: His legislation, LB1165, actually would reduce the number of absences before school districts are required to intervene – but he would restore the distinction between an excused and an unexcused absence, and leave it to the discretion of the school district whether to refer the matter to the county attorney.[14]
If anything this law does not go far enough. Nebraska should join the states that do not consider so-called “educational neglect” to be any of child protective services’ business. School districts should be prohibited from involving DHHS in cases of either “excessive absences” or truancy.
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And finally, one last item about that public humiliation session at the Douglas County courthouse last August: In order to attend the session, some of the children had to miss school.
[4] Stoddard, note xx (second story) supra.
[5] Stoddard, note xx, supra.
[6] Martha Stoddard, “Truancy law has many on edge,” Omaha World-Herald Feb. 14, 2012.
[7] Christine Scalora, “Parents, students criticize truancy law,” Nebraska News Service, Feb. 14, 2012.
[11] Stoddard, note xx (second story) supra.
