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The Fight to Decriminalize Truancy in Texas Schools

Should kids be led out of class in handcuffs for being late to school?
(Photo: hxdbzxy/Shutterstock)

(Photo: hxdbzxy/Shutterstock)

Advocates fighting to dismantle what the Department of Justice has called the “school-to-prison pipeline” won a small victory last week when the agency agreed to investigate the legality of truancy courts in Texas. Along with Wyoming, it’s one of only two states in the country to send kids to adult criminal court for skipping, or missing, school.

In Texas, “failure to attend school” is a Class C misdemeanor. When students have too many absences or latenesses, both they and their parents can be fined, jailed, and sometimes even sent to a detention facility. And they don’t have the right to an attorney along the way. According to the Justice Department, Texas’ Dallas County prosecuted about 20,000 cases where a student missed school.

The investigation is a response to an extensive and impassioned complaint that several advocacy groups filed with the department back in 2013. The original complaint, drafted by Texas Appleseed, Disability Rights Texas, and the National Center for Youth Law, painted a portrait of some of the incredibly harsh punishments Texas courts mete out for truancy.

In Texas, “failure to attend school” is a misdemeanor. When students have too many absences, both they and their parents can be fined, jailed, and sometimes even sent to a detention facility.

Children as young as 12 must represent themselves in adult criminal court, with no access to attorneys, according to the complaint—courts where they are often encouraged to plead guilty, no matter the circumstances. Nor are all of the students necessarily skipping class by choice. One student whose case the complaint described was referred to truancy court when she was out sick and failed to call in; another missed a few days of school after her grandmother died; yet another was just “late to class because she was using the restroom.”

These kids can face hefty fines and court fees, and if they miss their court hearings, they can be arrested. Finally, if they turn 17 without paying their fines and fees, they can be incarcerated. Very often, too, the parents are fined or incarcerated instead of—or in addition to—the students.

“We can't find any sort of rhyme or reason about the decisions that are made about whether to charge the kid or whether to charge the parent,” says Deborah Fowler, executive director of Texas Appleseed. “It is clear from looking at the numbers at the school district level that there are some districts that are just making the decision to file on both.”

The 2013 complaint also provided data that broke down the truancy cases over previous years by race and ethnicity, which showed that black and Hispanic students are over-represented and disproportionately affected by these policies. Students in the special education track and those who come from low-income communities are too.

The DOJ has announced that it will be investigating “whether the courts provide constitutionally required due process to all children,” as well as “whether the courts provide meaningful access to the judicial process for children with disabilities.” The announcement also comes at a time when the Texas State Legislature is considering a bill that would remove student truancy cases from adult criminal court, and into civil court.

Fowler says that in all levels of reform, the emphasis should be on “using court only as a last resort.” A new report put out by Texas Appleseed, appropriately titled “Class, Not Court,” recommends that the state address truancy problems with school-based interventions, mentoring programs, or, if necessary, substance abuse treatment plans. And it argues that court referrals for truancy cases should be discretionary, not automatically triggered when students reach a certain number of absences.

What the courts should not do, but what some judges are inexplicably doing, is enforce extreme measures like “requiring students to wear an ankle GPS monitor, submit to drug testing, or disclose all social media passwords so the judge could view their personal messages and accounts,” according to the report. And in cases where truant kids are 16 or older, they are actually being encouraged to drop out of high school and take the GED instead.

Fowler says she is hopeful that the Department of Justice has indicated that the situation in Texas merits a closer look, but she also admits that the state has a long way to go in this area.

"I'm not sure that TX is yet poised to take on the scope of reform that the other states have—simply because our numbers are so high, because of the form in which these cases have been prosecuted," Fowler says. "It’s much easier to take on a broad reform effort if your numbers are 8,000 cases, rather than 115,000 cases, as we have in Texas right now."

True Crime is Lauren Kirchner's weekly column about crime and criminal justice issues.