Truancy, absenteeism and special education: Considerations for school districts

By David A. Kane

A student's excessive absenteeism presents significant concerns for schools for a variety of reasons, including potential referrals for protection and/or special education eligibility under Section 504 of the federal Rehabilitation Act.

Filing a truancy petition with the Truancy Court or Family Court will not automatically resolve the student's absenteeism, and often adds another layer to the existing problem while essentially giving up control over a possible solution.

Even a referral to special education based on truancy will not eliminate the exclusionary factor of lack of instruction to the eligibility equation.

Below are some considerations for school districts when dealing with truancy.

Truancy as the underlying reason for a referral to special education

The Child Find requirements under the IDEA require school districts to identify, locate, and evaluate all children residing within the jurisdiction that either have, or are suspected of having, disabilities and need special education as a result of those disabilities. (34 CFR 300.111).

Excessive absenteeism by itself is not a per se basis for suspecting the child has a disability. Board of Educ. of Syracuse City Sch. Dist., 37 IDELR 232 (SEA NY 2002). Furthermore, school districts must suspect a child has a disability that meets the eligibility criteria for special education before referring a student for special education.

Furthermore, truancy will fall under "lack of instruction" as an exclusionary factor the eligibility team must reconcile during the eligibility determination process.

Truancy and eligibility

As noted above, lack of attendance, on its own, does not qualify a student for special education. However, absenteeism and/or lack of instruction may be a factor taken into consideration when determining if a student has an impairment that results in a need for special education and related services in the IDEA. (34 CFR 300.8(a)(1)).

With truancy, the most frequently sought category of disability for eligibility purposes is “emotional disturbance.”Under the IDEA implementing regulation (34 CFR 300.8(c)(4)(i)), "emotional disturbance" means a condition exhibiting one or more of the following characteristics "over a long period of time and to a marked degree that adversely affects a child's educational performance":

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors;

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(C) Inappropriate types of behavior or feelings under normal circumstances;

(D) A general pervasive mood of unhappiness or depression;

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

Emotional disturbance includes schizophrenia. (34 CFR 300.8(c)(4)(ii)). However, this does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under IDEA.

A school district determining whether a truant student is eligible under the IDEA with an emotional disturbance must establish that the truancy (i) is caused by a disability, (ii) that it adversely affects the student’s educational performance, and (iii) that the student needs special education as a result of the disability.

A determining factor for eligibility of a truant student is whether the truancy springs from social maladjustment, rather than from a disability. For example, a high school student, according to the U.S. 4th Circuit Court of Appeals, did not meet the eligibility criteria for an emotional disturbance even though the student's misbehavior included truancy, drug use and theft. Springer v. Fairfax County School Board, 27 IDELR 367 (4th Cir. 1998). The court found these characteristics were not consistent with an emotional disturbance, and were more appropriately aligned with his diagnosed social maladjustment.

Addressing truancy in the IEP for eligible students

In order to properly address the student's absenteeism in the Individualized Education Program (IEP), districts may need to reevaluate the student. West Lyon County Sch. Dist., 48 IDELR 232 (SEA IA 2007). The reevaluation process will look at several data points including school attendance.

For instance, the IEP may attempt to address the student’s poor school attendance or refusal to attend school as a behavioral issue affecting the student’s educational performance to the degree that the student requires specialized instruction. However, school districts need to be careful not to simply refer every truant to special education. There will be cases where developing a behavioral plan as part of a general education curriculum is appropriate and effective.

The fact that a student may require a specialized program that looks different from the traditional program does not equate to special education eligibility. In this situation, the school should investigate alternatives to traditional school attendance if the desired result is to seriously address a school climate that includes truancy and absenteeism.

Truancy and Section 504

Section 504 contains a Child Find requirement (34 CFR 104.32) that obligates schools to identify and locate qualified individuals that meet the definition of an individual with a disability and inform them of their rights under the Act, including the right to a free appropriate public education.

An appropriate education under Section 504 includes the provision of regular or special education and related aids and services designed to meet the needs of disabled students as adequately as the needs of nondisabled students. (34 CFR 104.33(b)).

Section 504 requires access to programs and activities sponsored by a school, including access to the curriculum. Often a truant student who qualifies under Section 504 may be provided access to the educational curriculum offered by the district through the employment of alternative means of receiving instruction outside of the traditional classroom setting, like virtual learning programs aligned to the district's curriculum.

Closing thoughts

Truancy and absenteeism continue to frustrate educators and administrators. While there really isn’t a quick fix or universal solution, options are available to address the reality that some children refuse to attend and/or participate in a traditional school setting.

For example, investing in alternative schooling like virtual learning, and online courses could be a viable alternative. Courses should be linked to the state standards, and may offer a more realistic outcome of achieving academic advancement than turning to the court system.

David is a nationally recognized expert in education and disability law. He is of counsel at Barton Gilman.