Tag: truancy

School Lawyers React to Home School Co-enrollment

Last year, TPERN introduced parents to the concept of home school co-enrollment as a means of complying with compulsory attendance laws while holding kids out of school during testing windows.  Two groups had a problem with it: school lawyers and some full time home schoolers.  While we respect the opinion of the full time home schoolers who teach their kids day in and day out, we strongly disagree that TPERN is encouraging parents to game the system or to somehow demean what full time home school parents do.  As to the school lawyers, we continue to be unimpressed with their willful misreading of law and statute in an indefensible effort to defeat parents’ rights to teach their kids at home.

Let’s boil down the school’s argument to its essence:  Parents do not have a right to provide instruction at home in academic subjects, religion, citizenship, arts or vocational education if they choose to enroll their kids in public school.  When stated on its face, stripped of erroneous citations, it is clear that no school will ever go to court and  attempt to defend that premise.  If there were ever a plainly unconstitutional argument made by schools, this would be it.  No school can deny a parent the right to enroll in both public schools and private educational settings, including home schooling.  Now, what can the schools do?  They can demand that you enroll as a full time student.  Public schools are not required to accept part time enrollees.  They may do so if they wish (it is not prohibited in any way), but they cannot be forced to do so.  They can record absences as unexcused for grading and credit purposes, if a student misses scheduled classes for home school instruction.  As mentioned in our initial article, however, we do believe the parents have a colorable argument that such absences cannot be used to show violations of the compulsory attendance law.

So if a school tells you that home school co-enrollment is not permitted, you should simply tell them (a) there is no law against it; (b) because my daughter is enrolling as a full time student in public school, you do not have the discretion to reject her; and (c) constitutionally, the school cannot prevent me from providing instruction to my child in our home on any matter that I, as a parent, see fit to teach.  Some school lawyers cite a TEA decision claiming it rejects dual enrollment.  However, that decision merely determined that a school district could not be compelled to accept a part time student for one class a day.  If the student had offered to enroll in the minimum number of classes required by the District, we believe the case would have been decided differently.

Let’s be honest.  Parents teach their kids at home all the time, whether they are enrolled in public schools or not.  This has always been legal and always will be legal.  It is outside the scope of the school to say what you can and can’t do in your own home.  The only thing that home school co-enrollment changes is the removal of the truancy threat against parents and kids.  It is this loss of control the schools fear.  That is what is behind all of their protestations.  They know they can’t stop you, but they will lie to try to get you to back down.

Stand up for yourselves and your kids.

OPTING OUT – Step by Step

How to Opt Out/Decline/Refuse STAAR

In response to a lot of “how do I do this” questions, we’ve put together this step by step guide on opting out.  This is a general guide of the various steps and forms a parent can follow to Opt Out of the STAAR assessment. If you are looking for an easy, non-confrontational approach, we can’t offer you that. Schools have been instructed to state that they can’t permit it. Some schools go further and falsely claim that state or federal law requires all students to take the STAAR assessments. Others even make implicit or overt threats to parents. So while all of our forms and letters are polite and civil, it is the rare school district that will work with you. As Peggy Robertson of United Opt Out said, opting out is, at its heart, an act of civil disobedience. So join the hundreds and thousands of parents locally, statewide and nationally who are standing up and speaking out against the standardization of our children’s education.

STEP ONE:

Inform the school that you intend to opt out of the assessment. You are not asking them to let you. You are telling them your decision. You can use the Master Opt Out letter, and customize it to your needs.

A lot of parents have asked whether you must tell the school.  If you simply intend to refuse the assessment, you do not.  However, if you want to preserve the argument that Texas law permits you to Opt Out, you must give notice as described in the Opt Out letters.  We also encourage notice so that the school understands that the assessment system is being protested by the parents.

 

STEP TWO:

You will receive a response from the school telling you they can’t permit it. At that time you can send either the response letter (if they are citing legalities) or a follow up refusal letter (if they simply say they can’t allow it).

STEP THREE:

At this point, unless the school relents, you will need to make a decision. Either (A) Keep your child home on STAAR days or (B) instruct them to write refused on the test booklet and answer sheet, and to make no other marks. (Kids taking the computer administration should be instructed to page to the end, submit it and confirm their submission). If you choose (B) be aware the some schools have told children during testing that their parents just called and said it was OK to take the assessment. If you go this route, create a password that the child must hear before they take the assessment. If the teacher can’t repeat it, the child doesn’t take the assessment.

If you choose (A), you must be aware of not only the test days, but the full testing window. Schools may assess students after the main STAAR administration day as long as it is within the window. Testing windows may be found here.

Some school districts have permitted children to return to class on makeup days without being assessed. They have required that the child and parent come together to the office before school and write “refused” on the assessment. This is a common sense approach to a refusal to test. It keeps the child in class, minimizes absences and meets their requirements. You can request Return to Class on Makeup Days using this letter.

Note for 2020-2021
: The TEA has expanded online testing windows to five weeks, which makes staying home almost impossible unless you choose to withdraw your student. On the positive side, for virtual learners, the TEA has decreed that the student must come to campus to be assessed, so as a parent, you can simply keep them home. They will also be score O for other instead of A for absent if this happens. Not a big deal practically, but it does give us a tool to measure opt outs this spring!

STEP FOUR:

If your child either refuses to complete the assessment on an administration day or if they refuse on a makeup day, you need to send a Do Not Score letter (click Here). The TEA will still score the assessment, but you can demand your letter be included in his academic file. For the more confrontational of you, you can also ask the district attorney to investigate the falsification of data that accompanies the scoring of refused assessments. (See this article).

STEP FIVE:

Some districts want to be punitive. They will threaten truancy charges or send notices about truancy. You should not ignore this. Rather, inform the school that you have engaged in a home school program on the dates of absence. Let them know that your program included reading, writing, social studies, science and citizenship. Once you have done that, you will have laid the foundation for a defense of truancy charges. It is likely that the school district will not proceed further at that point.  For more information on Dual Enrollment Home Schooling, read this.

Update for 2017:   The following addition from 2016 holds true.  We have had no reports of any truancy related charges from opt out parents in 2016.  >>> Update for 2016: Truancy laws have changed.  The threat is no longer as great as it once was, although it has not entirely disappeared.  In particular, the three day in four week provision, which was used to intimidate parents who held their kids out for a full testing window, has been removed! This is great news.  An unvetted comparison of the old law and the new law is here.

STEP SIX:

This step used to talk about how 5th and 8th grade parents had to fight threats of retention.  Great news!  Promotion is not dependent on STAAR results in ANY GRADE!  There is a recent change in the law which requires schools to provide 30 hours of tutoring (in a 3:1 ratio) for each STAAR assessment not passed.  (HB 4545).  Parents can opt out of this (see letter) and schools are not permitted to remove a child from foundation or enrichment curriculum to tutor them (i.e. no loss of electives!).  Review schools forms and enrollment documents carefully.  NEVER waive the 3:1 tutoring ratio unless it is part of an agreement that you are satisfied with to minimize or eliminate tutoring.  Never sign it as part of general enrollment documents.

STEP SEVEN:

Report back! We want to hear about any districts that act in a bad manner towards opt out parents. We also want to hear any stories of schools that are understanding and work with you! Use our contact form  to let us know how it goes!

Updated 1/12/22

Fighting the Opt Out Truancy Threats: Dual Enrollment Home Schooling

Schools are actively brandishing the threat of truancy charges against parents who exercise their fundamental liberty rights to direct the education of their children and protect them from abusive testing regimens.  Schools have sent threatening letters and in some cases actually filed truancy charges against both parents and children if they missed10 days (unexcused) in a six month period or more than three days in a four week period.  We have seen letters threatening to file truancy charges against nine year old students, even though the statute only makes truancy criminal if the child is between 12 and 18 years of age.  It is less clear if parents can be charged for truancy of children under age 12 because of the confusing way the statute is written.  One argument would say that the days missed calculation applies to students of all ages for purposes of charging the parent.  Another argument would say that the days missed calculation can only be determined by reference  to the age of the child, and therefore parents can’t be charged if the student is under 12.  We predict schools will take the first interpretation and file charges against parents and force them to argue in court, at risk of conviction, that the second interpretation should prevail.  We do not believe schools will file against any student under age 12.  (Please file an Incident Report with us if they do)

Rather than depend on legal semantics to fight the charges, parents do have other options.  Please note, none of these options have been tested in court.  There is always a risk that a judge may reject them, but we believe they are legally sound.  The first option is the withdraw/re-enroll option discussed in a previous article.  The main requirement here is that if charges are filed, you must demonstrate that you have an actual home school program during the time of disenrollment that includes a study of good citizenship.  Curriculum purchased or downloaded from the internet, along with assignments from the days of withdrawal would support this factual finding.  Of course, if you take this route, you are faced with multiple withdrawals and re-enrollments during a school year.  This is a time consuming undertaking.  We also believe local school boards may try to pass policies to combat this if this approach becomes prevalent.  For this reason, we are proposing a new approach.  Again, this approach is legally untested, but we believe it to be valid and consistent with state law.

The approach is what we call Homeschool Co-Enrollment.  At its heart, Homeschool Co-Enrollment is the essence of what schools should seek in a family’s approach to education.  In Homeschool Co-Enrollment, parents are actively involved supporting and supplementing the academic development of their child.  Homeschool Co-Enrollment exists informally in many ways.  Sunday School classes, academic tutoring centers, and family reading times are all examples of homeschooling that we engage in informally, not to mention giving homework help and quizzing your child to prepare for tests.  Our proposal is for a family that intends to take their kids out of school during STAAR testing to make this relationship formal.

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Opting Out and Truancy: A Hollow Threat or Big Stick?

A recent tactic by school districts faced with opt out requests has been to not so subtly suggest to parents that if they keep their children home on STAAR administration and make up days, the schools will report the parent to the appropriate agency for institution of truancy charges. Truancy courts have become an increasingly common tactic used by courts to compel the attendance of the child in the public schools. The charges are criminal in nature and pose the risk of fines up to $500. For that reason, it is important that parents keeping their kids out of school for STAAR testing days be aware of the specifics of their district’s policies. Because each district can have local attendance policies, this article cannot be used for specific advice about your district. However, each district must adhere to the minimums established by the state law. If your absences comport with the state law, districts must recognize them. So what do parents need to know?

1. Truancy charges can only be based on unexcused absences. As a result, you must know what types of absences are excused. The Education Code provides certain absences that MUST be excused, and other types that may be excused at the district’s discretion. This article deals only with the absences that state law requires to be excused. Under section 25.087 of the Education Code, they are as follows:

(b) A school district shall excuse a student from attending school for:
(1) the following purposes, including travel for those purposes:
(A) observing religious holy days;
(B) attending a required court appearance;
(C) appearing at a governmental office to complete paperwork required in connection with the student’s application for United States citizenship;
(D) taking part in a United States naturalization oath ceremony;
(E) serving as an election clerk; or
(F) for a child in the conservatorship of the Department of Family and Protective Services, attending a mental health or therapy appointment or family visitation as ordered by a court under Chapter 262 or 263, Family Code; or
(2) a temporary absence resulting from an appointment with a health care professional if that student commences classes or returns to school on the same day of the appointment.

Most of these excuses are unlikely to coincide with a specific STAAR administration. However, for parents who are Catholic (or Eastern Orthodox) there is a “holy day” almost every day, as one saint or another is commemorated by the Church. It may be a saint truly important to your family that merits a day of prayer and contemplation. April 21 is also the First Day of Ridvan in the Baha’i faith, Orthodox Christians commemorate the Holy Martyr Eupsychios on April 22 and wider Christianity recognizes April 23 as St. George Day. Those absences are excusable under state law, and it is improper for the school to inquire into the sincerity of your beliefs.

April Saint Days – Catholic
may catholic saints day
May Saint Days – Catholic

2. Being sick is not automatically excused. Notice what is missing in the statutory list of excused absences — illness. Absences for illness are strictly a local concern and you must be certain to comply with whatever policy your school district has to the letter! Scheduling a doctor’s appointment does not create an excused absence under state law. The statute specifically provides that to be excused for a doctor’s appointment, the student must either start or return to class on the same day as the appointment. If you meet that requirement (even if the child is at school for only five minutes), the absence must be excused.  Many parents utilize this provision by assuring that the child either leaves school for the appointment before STAAR testing begins, or returns to school with insufficient time remaining for the child to take the STAAR assessment.

3. Truancy laws have two components: credit and crime. The first component is what is called the 90% rule. It states that a student “may not be given credit or a final grade for a class unless the student is in attendance for at least 90 percent of the days the class is offered.” (Tex. Educ. Code sec. 25.092 (a)). Missing a week probably won’t put your student at risk, but if they have a lot of other absences, this could be a problem. The 90% rule applies to BOTH excused and unexcused absences, so make sure you count all the absences when you do the math. Also, the 90% is more like a 90% guideline. A student who is in attendance for 75-90% of the classes may be given credit after review by an attendance committee.

4. The crime component may not apply if your child is under age 12. Sec. 25.0951 of the Education Code requires a school to make certain truancy referrals. It is mandatory for the school to refer a student and parent to the appropriate court if the student, without excuse, fails to attend school for “10 or more days or parts of days within a six-month period in the same school year.” It is optional, but permitted, for the school to make the referral if, again without excuse, the student “fails to attend school without excuse on three or more days or parts of days within a four-week period.” The key though, is this: parental liability is tied to student absences under Sec. 25.094. On its face, 25.094 only applies if the student “is 12 years of age or older and younger than 18 years of age.” Threats about truancy referrals for children under age 12 seem to be nothing but bullying and coercion. Whether the parent can still be referred is an open question.  You may wish to consult a criminal attorney about this if you have concerns, however. The age limit does not affect the 90% rule.  Please note, we believe schools will refer parents for absences of children under age 12.  The child should not be liable, and the parents can argue that the statute is vague and does not apply to them, but we believe there is a good chance a court will enforce it at the trial court level.

Note: If you have been threatened with a truancy referral for a child under age 12, please complete an Incident Report so we can track this abusive behavior!!

5. Are there any other options? Yes. If you have a district that is going to make a truancy referral, or insists that your child must sit in the testing room even while refusing the test either on test day or make up day, you do have the ultimate weapon. Withdrawal. Because Texas recognizes home schooling, you can always withdraw your child from public school the day before the STAAR and re-enroll after the last makeup day. The Texas Association of School Boards has advised the schools that they must honor these withdrawal and re-enrollment requests. One funny note from the statute — in order to meet compulsory attendance standards, your home school must include a study on good citizenship. Maybe you can study the constitution or the fundamental liberty interest that parents have in the education of their children!

– Scott Placek