Texas Decriminalizes Truancy as NCYL Continues Its Work to Reform Texas Truancy System

On June 18, 2015, Texas Governor Greg Abbott signed House Bill (HB) 2398 into law, decriminalizing truancy in Texas, and taking a major step forward in truancy reform. HB 2398 requires schools to take steps to address students’ truancy before referring them to court. The bill also makes truancy a civil offense so students will no longer be subject to fines and criminal records in truancy court proceedings, although judges will still be able to order students to counseling or tutoring. Additionally, schools will not be allowed to refer a student to court for truancy if the truancy is the result of pregnancy, being in the state foster program, homelessness, or being the principal income earner for the student’s family. Further, truancy courts are required to dismiss cases when they determine that a student does not have the capacity to participate in court due to mental illness. HB 2398 will go into effect September 1, 2015.

The Texas legislature passed HB 2398 three days after the National Center for Youth Law (NCYL) filed an administrative special education complaint with the Texas Education Agency (TEA) charging that Texas school districts are using truancy court proceedings to force students with disabilities out of school and that TEA has failed in its responsibility to ensure that Texas students with disabilities to receive necessary services to make educational progress. On behalf of seven students, NCYL and its co-counsel, Disability Rights Texas and Texas Appleseed, filed this complaint against 13 school districts and TEA. The students’ individual stories demonstrate the various ways that school districts use truancy court proceedings to force students out of school, including by forcing students into GED programs or alternative schools, and coercing them into homeschooling.

Although HB 2398 should greatly improve the truancy system in Texas, it does not speak directly to the many of the harms suffered by the student complainants. Among the students included in the complaint are:

• Alexa,* a special education student with an intellectual disability and mental health diagnosis who was administratively withdrawn by her high school and forced into a homeschool program, even after a truancy case was dismissed;

• Matthew,* a student with severe ADHD who was ordered to drop out of school and enroll in a GED program, then threatened with arrest if he did not pay his fine;
• Donovan,* a homeless student who was twice charged with truancy when teachers were marking him absent while he was in his special education classroom; and
• Javier,* a student diagnosed with bipolar disorder and ADHD who was hospitalized following a suicide attempt at school, and who has been repeatedly charged with truancy and “administratively withdrawn” from school for partial-day absences related to his disabilities.

Some students fear criminal charges and fines so much that they accept deals to leave school rather than risk going to court. Once in court, in many cases, the school districts’ representatives make recommendations to the prosecutor or judge regarding the case outcome, including ordering students to withdraw and prepare for the GED test. Many courts routinely follow these recommendations, effectively converting the school district’s recommendation into a court order.

TEA’s own data highlights this pattern of forcing students out of school: over a three-year period, 1,247 students with disabilities were ordered by Texas courts to drop out of school and take the GED exam, which they subsequently did not pass. Eleven of the school districts included in the complaint were responsible for close to half of all the special education students statewide ordered to drop out who then failed to earn a GED.

The complaint charges the districts and TEA with failing to comply with the federal Individuals with Disabilities Education Act (IDEA). Federal law requires school districts to provide students with disabilities individualized educational services so they can make progress. However, rather than providing these services, the districts named in the complaint have chosen to force out students with disabilities by filing truancy cases against them. Furthermore, TEA has failed to sufficiently monitor these school districts to ensure that they are not violating federal law.

The students and their advocates filed this complaint to ensure that districts develop and follow procedures for identifying, evaluating, and serving students suspected of having disabilities who are missing school. They want districts to stop using the truancy process to force out students with disabilities. Further, they want TEA to bring itself into compliance with IDEA and provide guidance and monitoring to districts regarding the illegality of using the truancy process to force out students with disabilities.

Senior Attorney Michael Harris and Staff Attorney Hannah Benton are working on this complaint for NCYL.

*All names have been changed to protect students’ privacy.