Sunday, October 9, 2011

Q&A: Frequently Asked Questions

Questions & Answers: These questions are collected from Facebook discussions and emails. You may have asked these same questions at some point. Here is what you need to know!


Question: Does this new truancy law apply to private schools?

Answer: Private Schools that are accredited have to report attendance data and report to the county attorney at 20 days; But they more often use their discretion (their ability to recommend how the county attorney should handle the case) to protect the family then do the public schools. Unlike some public school districts private schools may not be defining "excessive absenteeism" as aggressively. The law only requires that they define excessive absenteeism as five days missed in one quarter and may decide whether those days will be excused or unexcused. So in the case of a private school they may decide to use the most flexible definition and say a student is excessively absent when they miss five unexcused days from school in one quarter (anyone would agree that is excessive I think). Then they are free to define what and unexcused absence is and may do so in a much more flexible way as well.

Public schools could also do this per the law, but choose to be far more strict, as you experienced! Districts in the Omaha Learning Community attribute this to the law, because LB 463 mandated the creation of the "Superintendent's Plan for Improving School Attendance" also known as the GOALS Initiative. Under this intralocal agreement the 11 school districts in the Learning Community entered a binding cooperation that has as one of its goals the streamlining of school attendance policy throughout the learning community. So for example MPS has defined excessive absences as 5 absences in one year for any reason allowing them the maximum latitude in "early intervention" under the GOALS plan.


Question: What happens if you pull your children out of school to home school? Do they show up at your front door and haul you off to jail?

Answer: The Law states: "Where a juvenile is adjudicated solely on the basis of habitual truancy from school…and the status of truancy is subsequently terminated by the lawful execution of a parental release authorizing discontinuation of school…a juvenile court may terminate its jurisdiction without a finding that such termination is in the best interests of the juvenile."

This means that if the child's only offense is truancy, then the truancy case must be dropped when the parents sign the parental release authorizing the disenrollment of their child from school. There is one exception. The county attorney can place an injunction if he/she determines there is reason to believe that the parents choice constitutes educational neglect.


Question: “I'd love to know why my child's name and information has to be sent to the state attorney after 10 absences/tardies regardless of documentation. What happens to this information after it's determined that she is indeed suffering from a medical condition that results in absences, tardies, and being sent home early? Is there some sort of permanent record entry on our family for reference if her siblings are also absent frequently? I'm not entirely sure anyone has considered the full legality of this law beyond "a few" good people getting caught up in a net.”

Answer: Yes, after 10 days a report is filed with the county attorney. Information regarding the reasons and details surrounding the absences is also given to the “Truancy Task Force”, they use this information to “triage” cases based on “need”. I do not know how long this information is filed at the county attorney or how it is used in the future. In the construction of any law we should be sure to follow the long held American juris prudence that it is “better that ten guilty person’s escape than that one innocent suffer.”


Question: “Dr Lutz said that it won't affect those with excused absences, Gov Heineman said "common sense" will be used. Where? Where is it used in this law?”

Answer: There are several levels of intervention in the law, school building level, district level, goals level, county attorney level, and if none of these address the “problem” then prosecution can be used at the discretion of the county attorney.

When Dr. Lutz is talking of “excused absences” he is talking about step 3 and 4 of GOALS in the Superintendents plan. This level is a referral to state agencies through the construct of the GOALS team, and will only happen when a student is absent 5 days without excuse in one year. This does not mean that every student with five unexcused absences will be referred to GOALS, this means that if the school believes that the absenteeism is “problematic” and it meets the threshold of 5 unexcused absences in one year, they can refer the student and their family to the GOALS team after they have exhausted all building level and district level interventions. It is during this process as well as the “truancy triage” at the county attorney level after 20 days that the Governor is asking us to trust the “Good-old Nebraska Common Sense” of state officials.


Question: “How is it that with ALL my daughter’s absences being excused I could still find myself before a truancy judge?”

Answer: For the purposes of “criminal truancy” there is no distinction in the law between excused and unexcused absences, and despite the assurance of state officials that “NO” children who have excused absences will be prosecuted, it is still wrong that they fall under the jurisdiction and discretion of the county attorney at all. It is in their “Good-old Nebraska Common Sense” that we have been asked to trust. Despite that there are families with excused absences being prosecuted and many more that entered truancy diversions for fear of further legal actions would be taken against them, and those who are told they will be monitored feel that they have stepped into a foreign film where law-abiding citizens are monitored by the state when no “crime” has been committed.


Question: When I was reading the highlighted area of the definition of an at risk youth in one part of the law, it says absent from school for more than 5 days per year. When I looked at another part of the law it said more than 5 days per quarter. So which is it?

Answer: Laws are complicated, let me try to explain: (1) The Law mandates "All school districts shall have a written policy on excessive absenteeism developed in collaboration with the county attorney" and then sets an absolute minimum requirement for that policy. That requirement is "five days per quarter or the hourly equivalent", excused or unexcused. It leaves school districts free to craft their own definition of “excessive absenteeism" within this parameter. For example, the most liberal a school district could define "excessive absenteeism" and begin early "interventions" described, is five unexcused absences in one quarter. The districts are free to define it much tougher than that if they choose, but that is the minimum. MPS for example went far beyond this required minimum in their policy when they defined a student as being "excessively absent" when they were absent five days from school in one year for any reason.

In this section the law applies to all schools statewide, and is meant to provide them flexibility in how they define "excessive absenteeism" and how and when they intervene because of it. The point at which the school no longer has flexibility is when the 20 day threshold is reached. The law states, “If the child is absent more than twenty days per year or the hourly equivalent, the attendance officer shall file a report with the county attorney.” SHALL FILE, means they must file no matter the reason for the absences.

The statute that defines “at-risk” youth was added to the law in 2011, and is targeted at the Omaha Learning Community only. This statute is responsible for the creation of the Superintendent’s Plan for Improving School Attendance and the GOALS Initiative which is a mechanism for early and aggressive intervention for “at-risk” youth before the 20 day threshold is met. In essence if you live in one of the eleven school districts mandated under the law to participate in this plan, then your district’s flexibility is limited by the mandate that they participate in the plan agreed upon by interlocal agreement between law enforcement, HHS, and the schools. Under this plan if a student is absent five days in one year without excuse by school authorities (under their district policy), then they can be referred to the GOALS team, a multi-disciplinary team comprised of representatives from juvenile county court, HHS, and Law Enforcement. This allows local and state authorities to intervene before the twenty day threshold when they determine that absences are “problematic”. It is subjective and this designation is determined by a series of assessments at the school, district, and county level. This plan relies on the “hammer” added to the law in 2010 that states that, “Nothing in this section shall preclude a county attorney from being involved at any stage in the process to address excessive absenteeism." Which allows the GOALS team to threaten families with further legal action if they do not cooperate, because the law states that the county attorney can be brought in at any level of the process he does not have to wait for the 20 day threshold.


Clarifications Needed: 
  • The 10 absence mark is not the point of at which a child is a status offender under the mandatory education law. What happens at 10 days in a letter is sent from the school to the county attorney as a first report of “problematic absenteeism”. This is very concerning to “law abiding” Nebraskans like the Slingwines, to have a file opened up on their family at the county attorney’s office. It is also true that the law provides county attorney’s the power to “become involved at any stage in the process of addressing excessive absenteeism”, but they would only do so with the urging of school authorities. If you’re a favorite at your school you probably have nothing to worry about until 20 days. 
  • If all of the absences were excused under school district policy then you will not go before any state authorities until your student has missed 20 days. The school can refer students if they exhibit signs of “problematic absenteeism” and it is true that the law does give the county attorney the power to intervene at any stage, but with the hundreds of cases they already deal with on a weekly basis they are only going to pursue those cases that the schools insist need scrutiny. Also, remember that you school district must exhaust all school level and district level interventions before they can refer you to the GOALS team, and they can’t refer you to the GOALS team until you have five unexcused absence in one year (that was the change we were able to influence last year.) 
  • The only way a parent would end up with a criminal record is if they were charged by the county attorney with “educational neglect”, a child neglect charge, and were convicted in a court of law. Children will only have a criminal record if they are charged and convicted of “truancy”. 
  • Sen. Amanda McGill serves on the judiciary committee, and I assure you that as part of that service she not only read the bill, but she was very familiar with it. She, like all the other senators who voted for the bill the first time around, believed that the bills intent was to target “at-risk” youth and to provide “services” to those children before the point of “no return”. This is the statement of intent for the law and committee hearing report: (
  • Voting Record: In 2010 when LB 800 was passed, it was passed with all voting yes and only one abstention; Sen. Janson. In 2011, when we brought our concerns to the legislature, Tony Fulton was the only senator who took a hard look at the law, realized the problem, apologized for voting for it, admitted it was a mistake, and committed himself to changing the law to protect the basic rights of parents. Then when the 2011 expansion of the law came up for a vote under LB 463, all except Fulton and Janson voted for it again. 

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