Absenteeism is a daily struggle for all administrators.  One of the most frustrating issues is the child who is habitually absent because his or her family just doesn’t make the effort to get the student to school.  A recent decision from the Nebraska Supreme Court serves as a reminder that schools have certain obligations when students are excessively absent. As an added bonus, we now know that a reluctant or nonresponsive parent cannot stand in the school’s way of moving forward in imposing consequences when a student is excessively absent.  The case is In re Reality W., 302 Neb. 878 (2019), and you can read the full opinion here.

Reality, a 15 year old student, had 68.5 days of unexcused absences in a single school year.  The school made multiple attempts to contact Reality’s mother: it sent four letters home; it made automated calls to the number provided by the mother on each day there was an unexcused absence; and the school counselor made three personal phone calls to the home.  Reality’s mother never responded to any of these contacts.

Shortly thereafter, the counselor observed Reality in the school hallway in the process of skipping class and decided to hold a “spontaneous” collaborative plan meeting with Reality.  He did not attempt to call the mother prior to the meeting. During the meeting, Reality and the counselor discussed her attendance barriers, including her schedule and transportation issues.  The school had previously shortened Reality’s school day and placed her on an IEP, and the counselor provided Reality a bus pass to assist with her transportation issues. The counselor offered family and individual therapy and discussed available community resources with Reality.  They signed the collaborative plan report, and the school mailed a copy to the mother. Reality continued to miss school, and the county attorney filed a truancy petition in juvenile court.

The juvenile court found Reality to be habitually truant from school.  The court found that although the collaborative plan meeting took place without the mother present, the school had fulfilled its statutory requirements to document its efforts to conduct the meeting.  The juvenile court concluded that Reality had no defense under section 79-209(3) to adjudication for habitual truancy. Reality appealed.

On appeal, Reality argued that the school did not meet its statutory collaborative planning meeting duties.  Reality claimed that the collaborative plan meeting which she had with the counselor was not legally effective because her mother was not there and because the school had not even attempted to contact the mother to attend this spontaneous meeting.  Section 79-209 provides in relevant part (emphasis added):

(2) All school boards shall have a written policy . . . to address barriers to attendance. Such services shall include . . . : (b) One or more meetings between, at a minimum, a school attendance officer, a school social worker, or a school administrator or his or her designee, the person who has legal or actual charge or control of the child, and the child, when appropriate . . . . . . . . (3) The school may report to the county attorney . . . when the school has documented the efforts it has made as required by subsection (2) of this section that the collaborative plan to reduce barriers identified to improve regular attendance has not been successful and that the child has been absent more than twenty days per year. . . . Failure by the school to document the efforts required by subsection (2) of this section is a defense to . . . adjudication for . . . habitual truancy[.]

The Nebraska Supreme Court rejected Reality’s argument.  The court explained that a parent’s absence from the collaborative plan meeting is not a defense to adjudication.  Instead, section 79-209(3) provides that “[f]ailure by the school to document the efforts required by subsection (2) of this section is a defense to . . . adjudication for . . . habitual truancy[.]” (Emphasis supplied).  The Court found that there was a great deal of evidence that the school district documented its efforts to comply with section 79-209(2), reduce Reality’s barriers to attendance, improve her regular attendance, and that its efforts had not been successful.   Ultimately, the Court rejected any position that a parent’s refusal to participate in the collaborative plan process can prevent a school from implementing the plan process to improve a juvenile’s attendance.

While the courts ignored some of the school’s shortcomings in this case, remember that the statute requires schools to take certain steps to enforce compulsory attendance laws.  These include:

  • Adopting a written policy on attendance developed and annually reviewed in collaboration with the county attorney.

  • Including provisions in the policy for handling excessive absences due to illness and the circumstances and number of absences or the hourly equivalent upon which the school must render all services to address barriers to attendance.

  • Providing verbal or written communication to the parent or guardian regarding attendance issues.

  • Holding one or more meetings to attempt to address the barriers to attendance between, at a minimum, a school attendance officer, a school social worker, or a school administrator or his or her designee, the parent or guardian, and the student (when appropriate).

  • Developing a collaborative plan to reduce barriers identified in the meeting(s) to improve regular attendance that considers, at a minimum:

    • Illness related to physical or behavioral health of the child;

    • Educational counseling;

    • Educational evaluation;

    • Referral to community agencies for economic services;

    • Family or individual counseling; and

    • Assisting the family in working with other community services.

In the event that the collaborative plan is not successful and the student has been absent more than 20 days per year, the school may notify the county attorney.  However, the school must notify the student's family in writing before referring the student to the county attorney.

If you have questions, we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Coady.