Question 1:

In reference to " A student's attendance is cumulative and begins on the first official day of the school year or the first day the student is officially enrolled. All nonattendance days are cumulative and begin with the first absence.”

The “first day the student is officially enrolled.” Is this the first day they step into the building to start classes? If a student is enrolled on a Friday before the start of school on Monday, and doesn’t show up until Wednesday, does their enrollment start on Monday or Wednesday? Should Monday and Tuesday be counted as absences, whether they are excused or unexcused?

Question 2:

What are other school systems doing to collect the following data?

2. For each student with five unexcused absences, whether an attendance plan was developed, and if not, the reason.

3. For each student with six unexcused absences, whether an attendance conference was scheduled, and if not, the reason.

4. For each student with six unexcused absences, whether an attendance conference was actually held, and if not, the reason.

5. For each student with seven unexcused absences, whether a court referral or a petition was filed [ or if proceedings against the parent or parents were initiated and, if not, the reason ].

Comment- the proposed regulatory changes make no atttempt to collect data on excessive absenteeism and the meetings and interventions that are conducted to address this issue.

Comment- The statute assumes that the parent will be responsive in providing excuses when their student is absent. Conferences are often held regarding "unexcused" absences that the parent will later provide an excuse for after the fact.  This situation can result in overwhelming numbers of students with unexcused absences and unrealistic time frame expectations for meetings to be held.

As the attendance person for my school, I have the following comments about the proposed regulations.

1.  There should be a limit of parent notes (we do 6 per semester), otherwise a student can be out for as many days as they want whatever the reason.  For students that already have attendance problems, this would be a very negative regulation.

2.  How do we manage attendance at 5, 6, 7 etc?  They could be consectutive days and we would not have one implementation done before another one is needed. (ex -  attendance plan and then parent conference).

3.  Will there be financial support for a full time attendance position?  I am an assistant principal and am already overloaded with attendance procedures.

4.  What school based activities are recommended under an attendance plan?

5.  If the absence is for the entire day, how does this affect block scheduling?

We work hard to support student attendance.  We also reward students with good attendance.  I am concerned that these proposals will have a negative impact instead of helping.

Thank you.

CODE § 22.1-269 requires that the Board of Education “see that the [mandatory attendance laws] are properly enforced throughout the Commonwealth.”  Notwithstanding that mandate, the Board still neither collects nor publishes data that would allow the public to assess its performance of that duty.

In this enforcement vacuum, Richmond, for example, has been free to define “truancy” as ten unexcused absences and, instead of filing a petition for judicial action at seven absences, as § 22.1-258 requires, sending a letter after ten.

The Board did not publish a proposed truancy regulation until December 21, 2009.  The history of that regulation is set forth on the Town Hall website.  In short, the regulation now is in its fourth public comment period.  

Despite six years of consideration and reconsideration, the regulation remains unlawful and ineffective.


I.    The amended definitions of “excused absence” and “unexcused absence” render the regulation unlawful.
CODE § 22.1-254 contains the compulsory attendance provision of Virginia law:

Except as otherwise provided in this article, every parent, guardian, or other person in the Commonwealth having control or charge of any child who will have reached the fifth birthday on or before September 30 of any school year and who has not passed the eighteenth birthday shall, during the period of each year the public schools are in session and for the same number of days and hours per day as the public schools, send such child to a public school or to a private, denominational, or parochial school or have such child taught by a tutor or teacher of qualifications prescribed by the Board of Education and approved by the division superintendent, or provide for home instruction of such child as described in § 22.1-254.1 (emphasis supplied).

CODE § 22.1-98.B.1 provides: “The length of every school’s term in every school division shall be at least 180 teaching days or 990 teaching hours in any school year.”  The statute sets out exceptions (e.g., severe weather); those exceptions do not include part day absences.
In short, the law requires attendance for the full school day and the full school year.   

CODE § 22.1-269 provides:

The Board of Education shall have the authority and it shall be its duty to see that the provisions of [§§ 22.1-254 through -269.1] are properly enforced throughout the Commonwealth.

That is, this Board has the authority and duty to enforce § 22.1-254 and -258, not to create loopholes in those statutes.  Yet, the Board’s proposed regulation would excuse an absence that is shorter than the full school day by even a moment and would except that absence from the mandatory enforcement procedures of §§ 22.1-258 et al.   

Under this regulation, a student could march into school only during the last five minutes of class on each school day, or report for the first roll call and then leave for the day, and never be classified as truant under the amended regulation.  Surely the General Assembly did not intend that absurd result.

The sole rationale proffered by staff for this unlawful exception is convenience.  Yet the statute does not make an exception for the convenience of the school divisions or of the courts.  

Perhaps the Board could make an exception for an occasional de minimis instance where a student is tardy or unavoidably misses a few minutes of class.  But the wholesale exception of any absence less than a full class day, as now proposed, is baldly unlawful.

As pointed out in my earlier comments, http://crankytaxpayer.org/Schools/truancy_reg.htm, Richmond has been violating § 22.1-258 wholesale.  Full compliance with the law surely will be greatly inconvenient to Richmond and to any division similarly engaged in ignoring § 22.1-258.  Anything less, however, would be contrary to the manifest will of the General Assembly, would subject the Board to suit over an unlawful regulation, and would leave the divisions exposed to actions for mandamus for failure to comply with the clear requirements of Virginia law.

Indeed, any division that might be overwhelmed by the requirement to obey this law will have the same recourse as any other public agency with inadequate resources to comply with the law: Seek more resources and, in the meantime, prioritize the workload and deal with as many cases as possible.  

Staff point to the 2d and 3d paragraphs of § 22.1-258 which require notice to the parent “[w]henever any pupil fails to report to school on a regularly scheduled school day” and require an attendance plan after the fifth such failure.  Read literally, these provisions would never invoke the enforcement mechanisms of § 22.1-258 so long as the student reported in at any time during the school day, regardless of whether the student then departed immediately.  This narrow reading of the second and third paragraphs overlooks the fourth paragraph of § 22.1-258, which requires a conference “[i]f the pupil as absent” a sixth time and requires referral to court “[u]pon the next absence,” both without mentioning failure to “report.”  Moreover, staff’s narrow reading of the failure to report language would lead to a regulation that is manifestly inconsistent with the General Assembly’s command that every student attend (i.e, report to) school for “at least 180 teaching days or 990 teaching hours.”

The Supreme Court’s Blake decision, www.courts.state.va.us/opinions/opnscvwp/1140081.pdf, does not modify this duty.  Blake holds that “send” in § 22.1-254 is sufficiently ambiguous that a parent cannot be prosecuted for her child’s tardiness.  Nowhere, however, does the decision contradict the manifest purpose of the compulsory attendance statutes that, with very limited exceptions, every school age student shall attend school all of every school day.  

Moreover, the Board has the authority (and duty) to rectify any ambiguity in the statute in order that it may serve its clear purpose.

Finally, the separate definitions of excused and unexcused absences are dangerous and unworkmanlike.

By setting out long definitions of both excused an unexcused absences, the Board invites lawlerly mining for ambiguity and conflicts between the two definitions.  Moreover, in light of the statutory requirement for full attendance, the Board should set out careful and narrow standards for excused absences, and then define any other absence as “unexcused.”


II.    Consistent with the Failure to Require Full Day Attendance, the Regulation Fails to Require Reporting of Part Day Absences.

The data collection portion of the Regulation, 8 VAC 20-730-30, is silent as to part-day absences.


III.    The New § 8 VAC 20-730-20 Invites Up to 132 Separate Definitions of “Excused Absence.”

The new § 20-730-20 would have each school board provide “guidance” as to “what would constitute an excused absence.”  In this, the Board unlawfully delegates its own authority and invites a spectrum of definitions that would emasculate the compulsory attendance laws and render the data collected under the regulation meaningless.


IV.    8 VAC 20-730-30.E Does Not Require Reasons for the Choice Between CHINS and Misdemeanors.

Upon the next absence after the scheduling of the six-absence conference, CODE § 22.1-258 requires either or both (1) filing of a complaint alleging the student is a child in need of supervision (CHINS petition), and (2) prosecution of the parent.

Subsection 30.E of the Regulation requires a report whether a seventh absence leads to a complaint but fails to require the attendance officer or Superintendent to set out the reasons for choosing one course or the other.  

Yet the choice must be driven by the facts of each case.  For example, one of the division’s options under § 22.1-258 is to prosecute the parent under § 22.1-262.  That latter statute authorizes prosecution for, inter alia, “refus[al] to participate in the development of the plan to resolve the student’s nonattendance or in the conference provided for in § 22.1-258.”  Manifestly, if the division fails to prosecute a parent who refuses to participate, the attendance officer should be required to set out a principled reason for not prosecuting.

This failure to require transparency is fully consistent with the general absence of any requirement in the regulation for accountability.  See the next item.

V.    The Regulation Should Create a Clear Chain of Accountability.

The regulation fails to require a system of accountability so that the public, the Board, and the local school boards, can measure the performance of a school system and its employees.  
Richmond serves as an example, perhaps an extreme one, of the effect of this Board’s failure to obtain reliable truancy data and to enforce the requirements of § 22.1-258.  

In an email dated May 22, 2012, Felicia Cosby of the City of Richmond Public Schools wrote: “As of March 22, Richmond Pubic Schools has sent 77 failure to send petitions--an increase from last year's total submissions of 47.”  Yet Richmond had 1,875 cases of ten or more unexcused absences during 2009.  This amounts to somewhere <2.5% compliance with CODE § 22.1-258.  

Note: The 2013 report from the Department of Education (the most recent report available as of November, 2015) shows 3,268 six-absence conferences in Richmond, 13.8% of the fall ADM of 23,649.  In the absence of any further data from the state, it is impossible to know whether that astounding datum represents an improvement or not.

If, as at present, there is to be no clear chain of accountability and no expectation of consequences for poor performance and no State enforcement of the mandatory attendance laws and no useful information from the State, we must expect that Richmond, and surely other divisions, and the State will continue to fail the children in our schools.  The Board should use this regulation as an opportunity to correct that dismal situation.

Fairfax County Public Schools (FCPS) appreciates the opportunity to provide you with comments on the proposed revisions to the Regulations Governing Unexcused Absences and Truancy (8 VAC 20-730).

We appreciate that the draft regulations appear to at least make an initial movement in the direction of evidence-based best practices as shown in the proposed definitions of an “Attendance Plan” and a “Multidisciplinary Team” in 8 VAC 20-730-10.  We particularly appreciate references to the specific factors which may contribute to a student’s attendance issues (“academic, social, emotional, and familial barriers”) and the encouragement of the use of “positive strategies” to support student attendance.

We are concerned, however, that that some of the proposed changes appear to reduce already existing local flexibility and may create significant new financial and administrative paperwork burdens on school divisions without any associated resources.

The term “face-to-face” is used at least twice in the draft document, both in the definition of “attendance conference” and in 8 VAC 20-730-20 in reference to the requirement to hold an attendance conference after six unexcused absences.  Our concern is that the very specific use of this term appears to reduce the flexibility of school divisions to conduct attendance conferences, particularly through the use of technology (e.g. teleconferences, the use of internet-based solutions such as GoToMeeting, etc.).  Eliminating the specific reference to a “face-to-face” meeting would help school divisions better and more flexibly connect with parents and allow for creative solutions to accommodating everyone’s busy schedules.

We are also very concerned about the potential impact of the proposed new section 8 VAC 20-730-30 regarding required data collection and reporting.  This section significantly increases the volume of administrative paperwork faced by school divisions in addressing attendance issues while the impact that data collection might have on the work of actually addressing attendance issues at the local level is unclear.  We do recognize the interest in collecting systematic data.  However, we fear that these substantial paperwork increases – particularly without any increases in resources – will divert the attention of already severely limited personnel toward compliance with reporting requirements rather than allowing them to keep their focus on attendance best practices, such as using their time to connect with students and their families.

We understand that proposed regulatory changes do not occur in a vacuum and are constrained by existing Code language (in this case, §22.1-258).  However, it is exactly that Code language which leads to a final observation about the draft regulations.  The underlying Code governing attendance and truancy relies very heavily on court-based and punishment-oriented interventions and contains rigid and unrealistic timelines for interventions, with significant (and different) interventions required after the fifth, sixth and seventh unexcused absence.  Because current Code is so rigid and strays so far from current evidence-based best practices, it fundamentally constrains the usefulness of regulatory change to affect real reform by limiting a school division's ability to address the root causes of truant behavior or to implement “positive strategies”.

Just as an example, the draft regulations require the creation of an attendance plan after the fifth unexcused absence, as specified by Code.  But instead of allowing time for that plan’s implementation or for any sort of evaluation of a student’s progress toward addressing issues identified by the plan, the regulations (again in compliance with Code) require additional significant interventions after only a single additional unexcused absence.  One more unexcused absence beyond that potentially triggers a court petition and legal intervention.  Simply put, this timeline is fundamentally flawed and undermines the potential usefulness of the required attendance plan by giving it little to no time to actually work.  Unless the underlying Code constraints are addressed, regulatory changes will be of limited worth in truly moving student attendance policies in school divisions toward evidence-based best practices.

Thank you again for the opportunity to comment and for your consideration.