Questions & Answers: The law, the plan, the policy
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Question: Does this new truancy law apply to private schools?
Answer: Private Schools that are accredited have to report attendance data and report to the county attorney at 20 days; But they more often use their discretion (their ability to recommend how the county attorney should handle the case) to protect the family then do the public schools. Unlike some public school districts private schools may not be defining "excessive absenteeism" as aggressively. The law only requires that they define excessive absenteeism as five days missed in one quarter and may decide whether those days will be excused or unexcused. So in the case of a private school they may decide to use the most flexible definition and say a student is excessively absent when they miss five unexcused days from school in one quarter (anyone would agree that is excessive I think). Then they are free to define what and unexcused absence is and may do so in a much more flexible way as well.
Public schools could also do this per the law, but choose to be far more strict, as you experienced! Districts in the Omaha Learning Community attribute this to the law, because LB 463 mandated the creation of the "Superintendent's Plan for Improving School Attendance" also known as the GOALS Initiative. Under this intralocal agreement the 11 school districts in the Learning Community entered a binding cooperation that has as one of its goals the streamlining of school attendance policy throughout the learning community. So for example MPS has defined excessive absences as 5 absences in one year for any reason allowing them the maximum latitude in "early intervention" under the GOALS plan.
Public schools could also do this per the law, but choose to be far more strict, as you experienced! Districts in the Omaha Learning Community attribute this to the law, because LB 463 mandated the creation of the "Superintendent's Plan for Improving School Attendance" also known as the GOALS Initiative. Under this intralocal agreement the 11 school districts in the Learning Community entered a binding cooperation that has as one of its goals the streamlining of school attendance policy throughout the learning community. So for example MPS has defined excessive absences as 5 absences in one year for any reason allowing them the maximum latitude in "early intervention" under the GOALS plan.
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Question: What happens if you pull your children out of school to home school? Do they show up at your front door and haul you off to jail?
Answer: The Law states: "Where a juvenile is adjudicated solely on the basis of habitual truancy from school…and the status of truancy is subsequently terminated by the lawful execution of a parental release authorizing discontinuation of school…a juvenile court may terminate its jurisdiction without a finding that such termination is in the best interests of the juvenile."
This means that if the child's only offense is truancy, then the truancy case must be dropped when the parents sign the parental release authorizing the disenrollment of their child from school. There is one exception. The county attorney can place an injunction if he/she determines there is reason to believe that the parents choice constitutes educational neglect.
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Question: “I'd love to know why my child's name and information has to be sent to the state attorney after 10 absences/tardies regardless of documentation. What happens to this information after it's determined that she is indeed suffering from a medical condition that results in absences, tardies, and being sent home early? Is there some sort of permanent record entry on our family for reference if her siblings are also absent frequently? I'm not entirely sure anyone has considered the full legality of this law beyond "a few" good people getting caught up in a net.”
Answer: Yes, after 10 days a report is filed with the county attorney. Information regarding the reasons and details surrounding the absences is also given to the “Truancy Task Force”, they use this information to “triage” cases based on “need”. I do not know how long this information is filed at the county attorney or how it is used in the future. In the construction of any law we should be sure to follow the long held American juris prudence that it is “better that ten guilty person’s escape than that one innocent suffer.”
Question: “I'd love to know why my child's name and information has to be sent to the state attorney after 10 absences/tardies regardless of documentation. What happens to this information after it's determined that she is indeed suffering from a medical condition that results in absences, tardies, and being sent home early? Is there some sort of permanent record entry on our family for reference if her siblings are also absent frequently? I'm not entirely sure anyone has considered the full legality of this law beyond "a few" good people getting caught up in a net.”
Answer: Yes, after 10 days a report is filed with the county attorney. Information regarding the reasons and details surrounding the absences is also given to the “Truancy Task Force”, they use this information to “triage” cases based on “need”. I do not know how long this information is filed at the county attorney or how it is used in the future. In the construction of any law we should be sure to follow the long held American juris prudence that it is “better that ten guilty person’s escape than that one innocent suffer.”
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Question: “Dr Lutz said that it won't affect those with excused absences, Gov Heineman said "common sense" will be used. Where? Where is it used in this law?”
Answer: There are several levels of intervention in the law, school building level, district level, goals level, county attorney level, and if none of these address the “problem” then prosecution can be used at the discretion of the county attorney.
When Dr. Lutz is talking of “excused absences” he is talking about step 3 and 4 of GOALS in the Superintendents plan. This level is a referral to state agencies through the construct of the GOALS team, and will only happen when a student is absent 5 days without excuse in one year. This does not mean that every student with five unexcused absences will be referred to GOALS, this means that if the school believes that the absenteeism is “problematic” and it meets the threshold of 5 unexcused absences in one year, they can refer the student and their family to the GOALS team after they have exhausted all building level and district level interventions. It is during this process as well as the “truancy triage” at the county attorney level after 20 days that the Governor is asking us to trust the “Good-old Nebraska Common Sense” of state officials.
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Question: “How is it that with ALL my daughter’s absences being excused I could still find myself before a truancy judge?”
Answer: For the purposes of “criminal truancy” there is no distinction in the law between excused and unexcused absences, and despite the assurance of state officials that “NO” children who have excused absences will be prosecuted, it is still wrong that they fall under the jurisdiction and discretion of the county attorney at all. It is in their “Good-old Nebraska Common Sense” that we have been asked to trust. Despite that there are families with excused absences being prosecuted and many more that entered truancy diversions for fear of further legal actions would be taken against them, and those who are told they will be monitored feel that they have stepped into a foreign film where law-abiding citizens are monitored by the state when no “crime” has been committed.
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Question: When I was reading the highlighted area of the definition of an at risk youth in one part of the law, it says absent from school for more than 5 days per year. When I looked at another part of the law it said more than 5 days per quarter. So which is it?
Answer: Laws are complicated, let me try to explain: (1) The Law mandates "All school districts shall have a written policy on excessive absenteeism developed in collaboration with the county attorney" and then sets an absolute minimum requirement for that policy. That requirement is "five days per quarter or the hourly equivalent", excused or unexcused. It leaves school districts free to craft their own definition of “excessive absenteeism" within this parameter. For example, the most liberal a school district could define "excessive absenteeism" and begin early "interventions" described, is five unexcused absences in one quarter. The districts are free to define it much tougher than that if they choose, but that is the minimum. MPS for example went far beyond this required minimum in their policy when they defined a student as being "excessively absent" when they were absent five days from school in one year for any reason.
In this section the law applies to all schools statewide, and is meant to provide them flexibility in how they define "excessive absenteeism" and how and when they intervene because of it. The point at which the school no longer has flexibility is when the 20 day threshold is reached. The law states, “If the child is absent more than twenty days per year or the hourly equivalent, the attendance officer shall file a report with the county attorney.” SHALL FILE, means they must file no matter the reason for the absences.
The statute that defines “at-risk” youth was added to the law in 2011, and is targeted at the Omaha Learning Community only. This statute is responsible for the creation of the Superintendent’s Plan for Improving School Attendance and the GOALS Initiative which is a mechanism for early and aggressive intervention for “at-risk” youth before the 20 day threshold is met. In essence if you live in one of the eleven school districts mandated under the law to participate in this plan, then your district’s flexibility is limited by the mandate that they participate in the plan agreed upon by interlocal agreement between law enforcement, HHS, and the schools. Under this plan if a student is absent five days in one year without excuse by school authorities (under their district policy), then they can be referred to the GOALS team, a multi-disciplinary team comprised of representatives from juvenile county court, HHS, and Law Enforcement.
This allows local and state authorities to intervene before the twenty day threshold when they determine that absences are “problematic”. It is subjective and this designation is determined by a series of assessments at the school, district, and county level. This plan relies on the “hammer” added to the law in 2010 that states that, “Nothing in this section shall preclude a county attorney from being involved at any stage in the process to address excessive absenteeism." Which allows the GOALS team to threaten families with further legal action if they do not cooperate, because the law states that the county attorney can be brought in at any level of the process he does not have to wait for the 20 day threshold.
Question: “Dr Lutz said that it won't affect those with excused absences, Gov Heineman said "common sense" will be used. Where? Where is it used in this law?”
Answer: There are several levels of intervention in the law, school building level, district level, goals level, county attorney level, and if none of these address the “problem” then prosecution can be used at the discretion of the county attorney.
When Dr. Lutz is talking of “excused absences” he is talking about step 3 and 4 of GOALS in the Superintendents plan. This level is a referral to state agencies through the construct of the GOALS team, and will only happen when a student is absent 5 days without excuse in one year. This does not mean that every student with five unexcused absences will be referred to GOALS, this means that if the school believes that the absenteeism is “problematic” and it meets the threshold of 5 unexcused absences in one year, they can refer the student and their family to the GOALS team after they have exhausted all building level and district level interventions. It is during this process as well as the “truancy triage” at the county attorney level after 20 days that the Governor is asking us to trust the “Good-old Nebraska Common Sense” of state officials.
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Question: “How is it that with ALL my daughter’s absences being excused I could still find myself before a truancy judge?”
Answer: For the purposes of “criminal truancy” there is no distinction in the law between excused and unexcused absences, and despite the assurance of state officials that “NO” children who have excused absences will be prosecuted, it is still wrong that they fall under the jurisdiction and discretion of the county attorney at all. It is in their “Good-old Nebraska Common Sense” that we have been asked to trust. Despite that there are families with excused absences being prosecuted and many more that entered truancy diversions for fear of further legal actions would be taken against them, and those who are told they will be monitored feel that they have stepped into a foreign film where law-abiding citizens are monitored by the state when no “crime” has been committed.
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Question: When I was reading the highlighted area of the definition of an at risk youth in one part of the law, it says absent from school for more than 5 days per year. When I looked at another part of the law it said more than 5 days per quarter. So which is it?
Answer: Laws are complicated, let me try to explain: (1) The Law mandates "All school districts shall have a written policy on excessive absenteeism developed in collaboration with the county attorney" and then sets an absolute minimum requirement for that policy. That requirement is "five days per quarter or the hourly equivalent", excused or unexcused. It leaves school districts free to craft their own definition of “excessive absenteeism" within this parameter. For example, the most liberal a school district could define "excessive absenteeism" and begin early "interventions" described, is five unexcused absences in one quarter. The districts are free to define it much tougher than that if they choose, but that is the minimum. MPS for example went far beyond this required minimum in their policy when they defined a student as being "excessively absent" when they were absent five days from school in one year for any reason.
In this section the law applies to all schools statewide, and is meant to provide them flexibility in how they define "excessive absenteeism" and how and when they intervene because of it. The point at which the school no longer has flexibility is when the 20 day threshold is reached. The law states, “If the child is absent more than twenty days per year or the hourly equivalent, the attendance officer shall file a report with the county attorney.” SHALL FILE, means they must file no matter the reason for the absences.
The statute that defines “at-risk” youth was added to the law in 2011, and is targeted at the Omaha Learning Community only. This statute is responsible for the creation of the Superintendent’s Plan for Improving School Attendance and the GOALS Initiative which is a mechanism for early and aggressive intervention for “at-risk” youth before the 20 day threshold is met. In essence if you live in one of the eleven school districts mandated under the law to participate in this plan, then your district’s flexibility is limited by the mandate that they participate in the plan agreed upon by interlocal agreement between law enforcement, HHS, and the schools. Under this plan if a student is absent five days in one year without excuse by school authorities (under their district policy), then they can be referred to the GOALS team, a multi-disciplinary team comprised of representatives from juvenile county court, HHS, and Law Enforcement.
This allows local and state authorities to intervene before the twenty day threshold when they determine that absences are “problematic”. It is subjective and this designation is determined by a series of assessments at the school, district, and county level. This plan relies on the “hammer” added to the law in 2010 that states that, “Nothing in this section shall preclude a county attorney from being involved at any stage in the process to address excessive absenteeism." Which allows the GOALS team to threaten families with further legal action if they do not cooperate, because the law states that the county attorney can be brought in at any level of the process he does not have to wait for the 20 day threshold.
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*The questions below where questions I posed to school district administrators in MPS, including the Superintendent Dr. Lutz, James Sutfin, Bill Jelkin, Kelly Latimer and their responses.
Question: Millard Public Schools has defined "excessive absences", for purposes of their district attendance policy, as missing school 5 days for any reason. The law states that schools "shall" intervene to address excessive absenteeism and the Superintendent’s plan states that school personnel will "intervene immediately" and utilize "all services” in their power to compel a student to attend school when a student is “excessively absent”. Will these "early interventions" be utilized in every case, or will the school be free to utilize these “interventions” on a case by case basis, as several parents have been told by their principals?
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Question: Millard Public Schools has defined "excessive absences", for purposes of their district attendance policy, as missing school 5 days for any reason. The law states that schools "shall" intervene to address excessive absenteeism and the Superintendent’s plan states that school personnel will "intervene immediately" and utilize "all services” in their power to compel a student to attend school when a student is “excessively absent”. Will these "early interventions" be utilized in every case, or will the school be free to utilize these “interventions” on a case by case basis, as several parents have been told by their principals?
Answer: Relevant statute related to this answer:
"All school districts shall have a written policy on excessive absenteeism...the policy shall state the number of absences or the hourly equivalent upon the occurrence of which the school shall render all services in its power to compel such child to attend... school... in an attempt to address the problem of excessive absenteeism. The number of absences in the policy shall not exceed five days per quarter or the hourly equivalent. School districts may use excused and unexcused absences for purposes of the policy."
MPS interprets the section to mean that the school can intervene with the stated "services" as early as there district policy defines, which is 5 days in one year in Millard policy, but are not compelled to intervene until a student reaches the most liberal threshold stated in the law which is 5 unexcused days in one quarter. The fact that the school district policy defines "excessive absence" as being absent 5 days in one year, far stricter then the requirement under the law, does not mean principals are compelled by the law to intervene at the earliest stage. This decision will rest in the hands of building level administrators and social workers on a case by case basis.
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"All school districts shall have a written policy on excessive absenteeism...the policy shall state the number of absences or the hourly equivalent upon the occurrence of which the school shall render all services in its power to compel such child to attend... school... in an attempt to address the problem of excessive absenteeism. The number of absences in the policy shall not exceed five days per quarter or the hourly equivalent. School districts may use excused and unexcused absences for purposes of the policy."
MPS interprets the section to mean that the school can intervene with the stated "services" as early as there district policy defines, which is 5 days in one year in Millard policy, but are not compelled to intervene until a student reaches the most liberal threshold stated in the law which is 5 unexcused days in one quarter. The fact that the school district policy defines "excessive absence" as being absent 5 days in one year, far stricter then the requirement under the law, does not mean principals are compelled by the law to intervene at the earliest stage. This decision will rest in the hands of building level administrators and social workers on a case by case basis.
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Question: The Superintendent’s plan states that building level “personnel intervene immediately when a child is showing signs of problematic absenteeism and/or at risk behavior [per district policy]. Is "problematic absenteeism" the same as “excessive absenteeism” as defined by school district policy, which in our policy is five days in one year including excused absences?
Answer: "Problematic absenteeism and/or at risk behavior" is diagnosed through a process of evaluations that are made during inquiries by school administrators and school social workers. The school social worker holds primary discretion, in consultation with principals and parents, to determine when absenteeism has become "problematic" and "services" or "interventions" are needed.
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Question: What happens if through inquiry school administrators uncover nothing more than more than "excused" absences via school district policy, but the student continues to accumulate absences beyond the threshold of (5) five days?
Answer: The school district shall "access and exhaust all building level interventions and resources" in their power to address the problem of excessive absenteeism. If absences continue the district is likewise required to "exhaust all district level interventions and resources" in their power to address the problem of excessive absenteeism before they refer any student to the GOALS team for further intervention. If the student’s absences reach the 20 day threshold the school will file a report with the county attorney with all documentation of steps taken and causes that lead to the student's absences.
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Question: Are absences due to school athletics and activities, such as debate team, football, etc, counted as absences toward both building level and district level interventions? Do they tabulate toward the five absences a year that constitutes “excessive absences” in the policy?
Answer: School level interventions will be utilized on a case by case basis and the district has no interest in scrutinizing families whose kids are absent for known and excused reasons under district policy. It is not the desire of the district to "intervene" in cases where there is no "need". If a student with school related absences meets the 20 day threshold that requires the school district to turn their case over to the county attorney, all relevant details about the causes for the absences will be passed on to the Truancy Task Force at the county attorney's office.
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Question: The law indicates that students cannot be referred to the GOALS team until they have accumulated (5) five unexcused absences in one year (or are otherwise under the jurisdiction of one of the stated agencies). Does this guarantee parents that their student will not be referred to the GOALS team (level 3 and 4 of the plan) if their absences are excused under district policy and they are not categorized as “at-risk” in these other ways?
Answer: Yes. If absences are excused under district policy the student will not be referred to the GOALS team for evaluation.
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Question: Is there an underlining assumption that all school absences (except for illness) are harmful to students regardless of the family situation and the academic success of the student by traditional measures? Does the district view parents who remove their student from school for a family vacations, which are not considered excused absences under school district policy, as doing “harm”?
Answer: The answer to this question was less clear among the Millard Administrators I met with. On one hand they seemed to be in agreement that the practice of family travel during the school year is frowned upon. Dr. Lutz said that such absences presented an obstacle to the districts Mission statement to “guarantee that each student… masters the knowledge and skills necessary for personal excellence”.
Kelly Latimer, a district social worker present, believed that she would make that judgment based on whether there were any other “red flags” present in the case, such as poor academic performance. If it were the only issue present it was her thought that school social workers would not pursue the case any further. She pressed the point that social workers in the district have discretion when referring cases to the GOALS team and that all measures where designed as preventative measures against “problematic absenteeism” including academic failure.
All were in agreement that common sense would prevail in the process to evaluate “problematic absenteeism” and that the district would seek to avoid a heavy handed implementation that would be both costly and time consuming and yield unjust results.
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Question: There are other categories of absences that are unexcused by school policy such as, “Non-school sponsored activities and athletics”, that include absences related to "career athletes", like figure skaters, competitive club sports programs, or gymnast, as well as non-school educational opportunities such as foreign mission trips, educational travel, or other educational and personal absences that parents determine to be of great value to their child’s well being. Do school authorities view parents who remove their children from school for reasons such as these as causing "harm" to their children?
Answer: There was varied discussion on this point as well. It also came down to a discussion of discretion by school social workers, principals, and parents. Dr. Lutz emphasized a clear distinction between school sanctioned activities, which are part of their curriculum, and those activities offered outside the curriculum and school supervision. It was reiterated that students get a total of 20 absences before they are referred to the county attorney, and before that point action taken is based on the discretion of school administrators.
I pointed to the examples of those student athletes who work toward professional and competitive athletics through private clubs and teams, and parents who allow their children to miss more school than most for the advantage that this outside practice gives them. Dr. Lutz responded by pointing out that most students who excel in these outside pursuits, whether Olympic athletes or child actors, get their schooling through privately arranged means such as tutoring or private schooling. I suggested that perhaps we needed a disclaimer for public school that states, “Children who participate in public school should not expect to participate in enhanced athletic disciplines, to become Olympic athletes, or to develop in any career pursuit that may get its start in their K-12 education.”
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*The questions below where questions district administrators posed to me and the relevant conversation that followed:
Question: If your organization (NFPF) is successful in making changes to the state statute will you be satisfied with our district policy as it stands now?
Answer: If we are able to restore the distinction between excused and unexcused absences in the law, it is realistic to assume that the threshold will be much tighter than 20 days, and our school district policy will become all the more important and consequential to the protection of families from the undue scrutiny of the law. For example if the threshold in the state statute where changed to five unexcused absences it would be all the more important how school districts define an excused absence. If the district chooses to continue the policy as it is and excludes family travel as ground for excuse on five day trip would be criminal under state law. Therefore the school district policy would need serious revisions in order to be fair and reasonable.
I expressed my confidence that under such conditions the administrators of our district could find an appropriate way to rewrite the policy in order to avoid criminalizing good students and their families and give parents more latitude to use their own best judgment when excusing their children from school. I reminded them that the Millard student body is excellent because it reflects the good-will and values of their families. Our district excels academically in state and national standards, enjoys a 98% graduation rate, and a 96% attendance rate, and by all standard measures is an excellent district. Dr. Lutz reported in our meeting that of the 3000 truancy cases last year only 400 of those were from Millard. This is a reflection of not only the excellent teachers and administrators in our district but a reflection of excellent parents and students.
I believe that government works best when it is closest to the people for this reason, and I believe fundamentally Dr. Lutz would prefer that the state law vest the discretion over school attendance policy more firmly in local control. The Millard school district has been out spoken in its opposition to the Learning Community Law and publicly opposed the new truancy law. Dr. Lutz describes these laws by saying that "we get drug in and painted with the same brush."
I hope that we can restore the discretion that school once had under the compulsory attendance law so that our district can design an attendance policies that reflects our unique environment in Millard, and satisfy the needs and desires of the families of our area. The attendance policy of our school district should reflect the confidence that our district administrators have in the excellent performance of parents in our district and their capacity to govern their families responsibly.
Some may say that it is better that we “prevent” all cases of “problematic absenteeism” even if it requires policies to provide strict oversight over all families and their personal prerogatives related to school attendance, what I say is that when you create laws to compel the irresponsible you enslave the responsible at great cost to society as a whole. Err on the side of freedom and family integrity and the right course of “intervention” will follow.
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Clarifications Needed:
- The 10 absence mark is not the point of at which a child is a status offender under the mandatory education law. What happens at 10 days in a letter is sent from the school to the county attorney as a first report of “problematic absenteeism”. This is very concerning to “law abiding” Nebraskans like the Slingwines, to have a file opened up on their family at the county attorney’s office. It is also true that the law provides county attorney’s the power to “become involved at any stage in the process of addressing excessive absenteeism”, but they would only do so with the urging of school authorities. If you’re a favorite at your school you probably have nothing to worry about until 20 days.
- If all of the absences were excused under school district policy then you will not go before any state authorities until your student has missed 20 days. The school can refer students if they exhibit signs of “problematic absenteeism” and it is true that the law does give the county attorney the power to intervene at any stage, but with the hundreds of cases they already deal with on a weekly basis they are only going to pursue those cases that the schools insist need scrutiny. Also, remember that you school district must exhaust all school level and district level interventions before they can refer you to the GOALS team, and they can’t refer you to the GOALS team until you have five unexcused absence in one year (that was the change we were able to influence last year.)
- The only way a parent would end up with a criminal record is if they were charged by the county attorney with “educational neglect”, a child neglect charge, and were convicted in a court of law. Children will only have a criminal record if they are charged and convicted of “truancy”.
- Sen. Amanda McGill serves on the judiciary committee, and I assure you that as part of that service she not only read the bill, but she was very familiar with it. She, like all the other senators who voted for the bill the first time around, believed that the bills intent was to target “at-risk” youth and to provide “services” to those children before the point of “no return”. This is the statement of intent for the law and committee hearing report: (http://nfpf.blogspot.com/2011/10/nebraska-attendance-law-statement-of.html)
- Voting Record: In 2010 when LB 800 was passed, it was passed with all voting yes and only one abstention; Sen. Janson. In 2011, when we brought our concerns to the legislature, Tony Fulton was the only senator who took a hard look at the law, realized the problem, apologized for voting for it, admitted it was a mistake, and committed himself to changing the law to protect the basic rights of parents. Then when the 2011 expansion of the law came up for a vote under LB 463, all except Fulton and Janson voted for it again.
