Schools, Courts Worry About New Truancy Law

GARLAND — On a summer day when she could be just about anywhere else, 15-year-old Brooke Swartz stands next to her mom in cheeky Bart Simpson Converse high-tops, facing a judge. In one hand, Swartz holds a sheaf of paper, including proof that she attended school and a book report on To Kill A Mockingbird.

In her wallet, she has the $170 in hard-earned babysitting cash she'll soon fork over to a court clerk, the first payment on her $229 fine for skipping school with friends.

"I was upset with myself, scared because I have to come to court," Swartz said after her five- minute truancy hearing, her second court appearance, to answer for 10 unexcused absences during freshman year at Lakeview Centennial High School. Swartz will return to court in September to settle her fine and turn in logs of her community service efforts. The entire legal episode has her vowing never to skip again.

"I rather go to class," she said.

For Swartz, Texas' current truancy law, which allows schools to file misdemeanor charges against students who play hooky too often, appears to be working the way its designers hoped. A trip through adult court, with potential adult consequences, was enough to get her attention.

But the rules will change when students return to school this fall, and there is widespread disagreement on what to expect.

Right now, school administrators, court personnel and elected officials are wading through nearly 100 pages of what was House Bill 2398, but will on September 1 become the state's new truancy law. It eliminates criminal court hearings and stints in adult jail for repeat truants, requires schools themselves to do more to address attendance problems and allows the courts to be involved only as a last resort.

Supporters applauded the law when it passed, saying it was about time Texas stopped treating school skippers as criminals.

But many of those who work directly with students under the current law worry that they are losing tools that have worked well in cases like Swartz's. Officials with school districts and the courts fear the move will cost taxpayers more by forcing school districts to figure out how to solve problems with unexcused absences.

But more importantly, they say, reducing truancy from a class C misdemeanor to a civil fine will drive school attendance rates down, and push up the drop-out rate.

"You're fixing to lose a lot of children, absolutely," said Mike Cantrell, the Dallas County commissioner who once heard truancy cases as a justice of the peace in the 1980s. "Attendance will go down, and the drop-out rate will go up."

It's a claim echoed in emails sent from school officials from across the state to Gov. Greg Abbott, urging him to veto the bill, which received the governor's signature last month.

"This bill decriminalizes truancy and I worry if it passes that our drop out rates will increase exponentially," wrote Jennifer Jordan, a high school social studies teacher in the Abilene Independent School District.

But the law's author, state Rep. James White, R-Hillister, and juvenile justice advocates dismiss those claims. 

"It's a canard," White said. "You have to ask yourself a question. Is that necessarily a reason to criminalize being absent from school? Because someone says or believes that the drop-out rate is going to increase?"

Texas Appleseed, a social advocacy group, has researched truancy in Texas, and found that more than 115,000 truancy cases were filed in 2013 — more than all other states combined. Deb Fowler, the group's executive director, rejects the notion that criminal prosecution has any impact on attendance.

"There is absolutely no evidence — zero research — that supports such a punitive approach to chronic absence or attendance problems," she said. "In fact, there is research that shows that court-based interventions are largely ineffective as an intervention."

In 1995, truancy became a class C misdemeanor in Texas and students with 10 unexcused absences in a year were referred to adult courts, usually either justices of the peace or municipal judges, who aren't required to hold law degrees. 

Students could be fined, and if they violated a judge's orders — say, failing to complete community service, or return to court — those 17 or older could be jailed. Students often complied with the fines because judges also can suspend their driver's licenses. To get a suspension lifted, they have to come to court and prove the fines have been paid.

Texas data on juveniles and truancy is sketchy at best. No uniform collection method exists, though justices of the peace and municipal judges are supposed to tell the Austin-based Office of Court Administration how many truancy cases are filed. 

But since multiple cases might be filed against the same student, the state's numbers don't capture how many students are involved. Fort Bend and Dallas counties keep their own data.

BuzzFeed reported this year that at least 1,000 students in Texas have been ordered to jail for truancy-related charges.

But it's not clear how many students have actually spent the night in jail, or how many of those opted to spend a night in jail to pay off the fine. 

Dallas County confirmed to The Texas Tribune that at least 22 students since January 2013 went to jail for failing to pay truancy fines. Of those, seven requested to go to jail after a judge determined they had the ability to pay their fines and one other received credit for jail time served for another crime. 

Appleseed was unable to get jail numbers for Dallas County and is now locked in an open records battle for those records with the district attorney's office and is waiting on numbers from Bexar County. It found that more than 1,300 students were arrested for truancy and truancy-related charges in 13 counties: Brazoria, Harris, Williamson, El Paso, Cameron, Denton, Hidalgo, Nueces, Montgomery, Travis, Tarrant, Collin and Fort Bend. 

The law was modified in 2011 through efforts by state Sen. John Whitmire, D-Houston, so that no child 10 years or younger could be assessed a fine.

In 2013, a law authored by Whitmire that would have decriminalized truancy passed the Legislature but was vetoed then-Gov. Rick Perry. This session, legislation passed again and was signed by Abbott.

But even as lawmakers were moving to scale back truancy punishment, Dallas County was trying to make the existing law work better, streamlining the process and putting lawyers in charge.

In 2003, Dallas County established separate truancy courts, all overseen by attorneys as judges. Today there are five such courts in Dallas County. Fort Bend County adopted the specialized courts a few years later. 

Many on the front lines — teachers, school administrators and court personnel — have shied away from commenting publicly now that the new law has been signed. Privately, they remain unconvinced of its wisdom. Students already on the fringes will just leave school all together, they believe. Schools already struggling to address attendance problems will have to fund more staffers to create more programs to abide by the law. 

"That's what it does, throws it back on the school district," said Debbie Durko, court administrator for the municipal court in North Richland Hills, near Fort Worth. "They're being told to do all this extra work, but they're not given any additional funds."

Durko says her court is already working with schools to keep students on campus and not in jail. Her court, like many across the state, will be meeting with lawyers in the next few weeks to be updated on the law and redo existing programs to be in compliance come September.

Critics of the current Texas truancy system say that no matter the number of students involved, it unfairly singles out minority and poor students. 

Fowler of Texas Appleseed, which has been lobbying to decriminalize truancy, says the current law has disproportionately affected low-income, Hispanic, black and disabled students. Some 20 percent of cases filed during the 2013-14 school year involved African-American students.

Appleseed was among those filing a complaint with the U.S. Department of Justice in 2013 about Dallas County’s truancy courts, where more students are prosecuted for truancy than any other, some 36,000 in just 2012.

The Justice Department opened a civil investigation in late March. About the time it was announced, Dallas County's practice of placing truant students in handcuffs who did not appear in court, ended quietly. "You will not find an email about it," one official told the Tribune.

Shortly after the federal investigation was announced into Dallas County's truancy courts, Fort Bend placed a halt on truancy cases in that county. 

There's been no findings released by the Justice Department yet, but it is thought that the passage of White's bill may take the sting out of any final report.