Truancy Prosecutions of Students and the Right [To] Education

Abstract

Nationally, the high volume of prosecutions of students for truancy has constituted a perennial low visibility corner of the juvenile system. Rarely represented by counsel, students who are convicted often suffer serious sanctions, including incarceration, fines, unachievable conditions of probation, loss of driving privileges, and other burdensome restrictions. Although the process of truancy prosecutions differs state-by-state, and often court-by-court, the transparency and legality of these systems is subject to several on-going legal challenges asserting that, as a constitutional matter, the rule of law - embodying fairness, consistency, and the right to be heard - is systematically abused in truancy courts. This article constructs a right to education that students can assert in truancy prosecutions or in systemic challenges to truancy systems. This right is based largely on state education constitutional provisions (the bases for the decades old legal campaigns to assure students adequate educational opportunities), state schemes that attempt to place heavy burdens on school systems meaningfully to justify filing truancy prosecutions, and on a Fourteenth Amendment right to “treatment.” The model for the right is rooted in the intensive, individual services guaranteed to students with disabilities under the Individuals With Disabilities Education Act and section 504 of the Rehabilitation Act. The article concludes with a call to decriminalize truancy for students.

Keywords: juvenile justice, education, truancy