Chapter 6: The Legal Framework of California's Truancy Laws

The California Constitution describes public education as essential and establishes a fundamental right to a free education for all California children in elementary, middle and high school.114Cal. Const. Article IX, sections 1, 5; Butt v. State of California (1992) 4 Cal. 4th 668, 685-686; Serrano v. Priest (1976) 18 Cal.3d 728; 766 (Serrano II). The basic civil right to an education derives from the “distinctive and priceless function of education in our society.”115Serrano v. Priest (1971) 5 Cal.3d 584, 608-09 (Serrano I). The California Supreme Court has stated that education plays an indispensable role in our society because it serves as a major determinant of an individual’s chances for economic and social success and has a unique influence on an individual’s development as a citizen and as a participant in political and community life.116Serrano I, supra, 5 Cal.3d at p. 605.

Education is the lifeline of both the individual and society. – California Supreme Court decision in Serrano v. Priest117Ibid

In California, every child between the ages of 6 and 18 is required to attend public school full-time,118Education Code section 48200. The terms “parent” and “guardian” are used interchangeably in this chapter to refer to both parents and guardians. unless subject to an exemption.119Exemptions to compulsory education can be found in Education Code sections 48220, 48222, 48223, 48224, and 48230. Exemptions include attendance in a private school, programs for mentally gifted children, instruction by a tutor, and children with part-time permits to work. Every parent of a child ages 6-18 is legally mandated to ensure that his/her child attends school.120Education Code section 48200.

In enacting the state’s truancy laws, the California Legislature created an early intervention system with a comprehensive mechanism for dealing with truancy, including community and special mediation programs.121See Education Code sections 48263.5, 48320 – 48340. The goal of California’s system is to “encourage school districts and county offices of education ... to adopt pupil attendance policies based on the active involvement of parents, pupils, teachers, administrators, other personnel, and community members” in order to, among other goals, provide procedures for “[j]oint efforts between law enforcement and schools, such as school level attendance review teams and periodic efforts to return truant pupils to school.”122Education Code section 48340.

Truancy Legal Requirements and Intervention Strategies

Truancy Legal Requirements and Intervention Strategies

Like the definition of truancy, which varies between states, the laws governing truancy also vary significantly from state to state.123For example, in Washington State a school district may file a truancy petition with the courts after five unexcused absences in a month, but must file a truancy petition after seven unexcused absences in one month or 10 unexcused absences in a year. (Wash. Rev. Code § 28A.225.030.) In South Carolina, a student is truant when he or she has three consecutive unlawful absences or a total of five unlawful absences – an unlawful absence is one without the knowledge of the parents or without acceptable cause with the knowledge of the parents. (S.C. Code Ann. § 43-2724.) And, in Illinois, a child between ages 7 and 17 must attend public school and can miss no more than 5% of the school year or 9 days. The law previously allowed for 10% or 18 days but was amended in 2011. (105 Ill. Comp. Stats. 5/26-1, 5/26-2, 5/26-2a.) Unlike some states,124For example, in 2010 the ACLU filed a lawsuit alleging that the State of Rhode Island’s truancy court system was overly penal in nature. (http://www.riaclu.org/court-cases/case-details/boyer-v.-jeremiah) California’s truancy laws are educational, not penal, in nature.125In re James D. (1987) 43 Cal.3d 903, 915. Our legislative scheme is geared toward returning the absent student to school, rather than toward punishment or criminal sanctions for children or their parents.126Ibid.

Individual schools are required under the law to report any student who meets the standard for a “truant” to the district attendance supervisor or the district superintendent.127Education Code section 48260. In addition, Education Code section 48240 requires that the board of education of any school district and of any county must appoint a supervisor of attendance and any assistant supervisors of attendance as may be necessary to supervise the attendance of students in the district or county. The supervisor of attendance is required to ensure compliance with the state’s compulsory education laws which includes truancy. Once a student is deemed truant,128Education Code section 48260.5. For the full requirements of the notice, see Education Code section 48260.5, subds. (a) to (h). the school district must immediately notify the student’s guardian that the student is truant. These early notification requirements are designed to raise the red flag as soon as possible and help get the student back into the classroom.

First Notification of Truancy – Mandatory Notification to Parent After Third Unexcused Absence or Tardy

California’s truancy process begins with the first notification of truancy. School districts must notify the parent or guardian the first time that a student is designated as truant, i.e., after the student has three combined unexcused absences or tardies during the school year.129Education Code sections 48260, 48260.5. The school districts become aware of students’ truancies because individual schools must notify the school district’s attendance clerk or superintendent of the district. In addition, the student and parents may be requested to attend a meeting with a school counselor or other school designee “to discuss the root cause of the attendance issue and develop a joint plan to improve the pupil’s attendance.”130Education Code section 48264.5, subd. (a).

Required Information for T1 Letter

  1. The student is truant;
  2. The parent is obligated to compel the student's attendance at school;
  3. If the parents fails to comply with obligation to send the child to school, then the parent may be guilty of an infraction under Education Code section 48290 et seq.;
  4. Alternative educational programs are available in the district if the student requires one;
  5. The parent has the right to meet with the school officials to discuss the truancy;
  6. The student may be subject to prosecution under Education Code section 48264 for truancy;
  7. The student may be subject to suspension, restriction, or delay of his or her driving privileges under Vehicle Code section 13202.7; and,
  8. It is recommended that the parent attend school with the student for one day.

The initial truancy notification, colloquially referred to as a “T1” notification, must provide eight pieces of information as listed.131Education Code section 48260.5. A sample First Notification of Truancy Letter and a sample Third Truancy Letter (Habitual Truant), in multiple languages, are available on the California Department of Education (CDE) Website at http://www.cde.ca.gov/ls/ai/sb/sarbhandbook.asp in the State School Attendance Review Board (SARB) Handbook, at Appendix A, pp. 63-64 and 70. The objective of the notification is not only to notify the parent that the student is legally truant, but also to inform the parents of their rights and legal requirements, the consequences of truancy and the resources available to help them resolve the problem.

Second Notification of Truancy – Mandatory Reporting of Truancy After Fourth Absence or Tardy

If a student who has once been reported truant is again absent or tardy in excess of 30 minutes from school without a valid excuse one more day after the first report of truancy, i.e., if the student incurs a fourth unexcused absence or tardy within the school year, then the school is legally required to report the student again as a truant to the attendance supervisor or the superintendent of the school district.132Education Code section 48261. Under Education Code section 48264.5, subd. (b), the second time a truancy report is issued the student may be given a written warning by a peace officer, and the student may be assigned by the school to an afterschool or weekend study program. Although the law requires reporting the second truancy to the attendance supervisor or the superintendent,133Education Code section 48261 requires that all truancies subsequent to the second truancy be reported to the attendance supervisor or superintendent. there is no requirement that the parent or guardian be notified of the second truancy. But, as discussed in this report, many schools and/or districts notify the parent or guardian of the absence in an effort to thwart any future unexcused absences. This practice is highly recommended.134For a full list of recommendations, see Chapter 9.

Third Notification of Truancy – Mandatory Notification and Designation as “Habitual Truant” After Fifth Unexcused Absence or Tardy

Upon a fifth unexcused absence or tardy in excess of 30 minutes in a school year, the district must give the parent or guardian a mandatory notification of the student’s third truancy by making a conscientious effort to hold at least one meeting with the student and his or her parent or guardian.135Education Code section 48262. The requirement that the school district make a conscientious effort entails “attempting to communicate with the parents of the pupil at least once using the most cost-effective method possible, which may include electronic mail or a telephone call.”136Ibid. After the third report of truancy, if the school and/or district has properly reported the first and second truancy as required under the Education Code sections 48260 and 48261 and made a conscientious effort to meet with the parent at least once, the student will be deemed a “habitual truant.”

Referral to School Attendance Review Board (SARB)

Upon designation as a habitual truant, a student and his or her parent/guardian may be required to attend a SARB hearing after referral by the district supervisor.137Education Code section 48263. A student with irregular attendance may also be referred to a SARB. SARBs function as the intermediate stepbetween schools and prosecuting authorities. A SARB can be formed by the county or by a local jurisdiction, i.e., a school district.138Education Code section 48321.

Our review of SARB reports provided us by county offices of education reflected that SARBs at either the district or county level have been maintained in the last three years in at least 43 of the 58 counties in California. Our District Leadership Survey of school districts found that just over half – 56% – of respondents had SARBs that met monthly or more frequently. In elementary school, SARB hearings are often the final opportunity for families to address the student’s truancy before parents are referred to the district attorney for possible prosecution.

At a hearing, SARB committee members identify the core problem and its contributing factors through discussion with the parents of the truant student and the student in order to tailor strategies to improve the student’s attendance. By doing so, the SARB members can determine if available community resources – such as county health care services, county welfare services, nutritional counseling, or alternative transportation options – can resolve the truancy problem.

If a SARB determines that available community resources can resolve the truancy problem, the SARB will refer the student and parent to the relevant services and may require proof of participation in those services.139Education Code section 48263. In practice, many SARBs and the parents enter into what is commonly referred to as a SARB “contract,” its main goal being to improve student attendance. If a parent fails to respond to the directives of a SARB, either by failing to attend the SARB hearing in the first instance or failing to comply with the SARB contract, then the SARB will generally refer the matter for criminal prosecution.140Welfare and Institutions Code section 601.2. As outlined in Education Code section 48260.6, subdivision (d) and Welfare and Institutions Code section 601.3, district attorneys’ offices and probation departments may elect to participate in an additional truancy mediation program. Under such a program, the district attorney or probation department may request the guardians and student to attend a meeting with the district attorney or probation department to further discuss the possible legal consequences of the minor’s truancy and develop a strategy to resolve the problem. (Education Code section 48263.) If the district attorney does not participate in a truancy mediation program, the SARB may direct the county superintendent (who must abide by the request) to petition a juvenile court to take up a case against the parent/guardian or student. (Ibid.) In the event that the district attorney decides not to prosecute a SARB referral, he or she must provide the SARB with a written explanation of the decision not to prosecute.141Education Code section 48291. The flowchart below provides an overview of the SARB process outlined in the Education Code.142For a complete description of the SARB process, see the 2012 State School Attendance Review Board’s Handbook, http://www.sbcss.k12.ca.us/stuServe/SARB/StateSARBHandbook.pdf.

SARB Process Flow Chart

SARB Process Flow Chart

If the county or school district does not have a SARB or a truancy mediation program, the student may be required to attend a formal program comparable to a truancy mediation program as designated by the district’s attendance supervisor.143Education Code section 48264.5, subd. (c). For elementary school, if the student does not successfully complete the recommended program, then the parent can be referred for prosecution.144Education Code sections 48291, 48292, and 48293; Education Code sections 48264 and 48264.5, subd. (d) and Welfare and Institutions Code sections 601 and 602 provide for the prosecution of truant students. Our research has indicated that, understandably, prosecutors rarely, if ever, prosecute elementary school students for truancy; therefore, this report focuses on the laws relating to, and the prosecution of, the parents of truant elementary school students, rather than the prosecution of students themselves.

Legal Consequences of Habitual Truancy – Prosecution of Criminal Infraction under Education Code section 48293

After a student is deemed a habitual truant, any subsequent unexcused absence within the same school year may be criminally prosecuted under Education Code section 48293. Thus, parents of a truant student may be charged and found guilty of a criminal infraction that carries a fine up to $100 for a first conviction, a fine up to $250 for a second conviction and a fine up to $500 for a third conviction.145Education Code section 48293, subd. (a). Instead of a fine, a court may – and often does – exercise its discretion and order the guardians to be placed in a parent education and counseling program.146Ibid.

In some cases, legal intervention can be an effective way to get a child back in school. Michael and Jennifer Jones147The names have been changed to protect the family’s privacy. were summoned to court by the district attorney for failing to send their 4th grade daughter to school. The child had 50 unexcused absences, a trend that began on and off in kindergarten. She also suffered from severe separation anxiety and had untreated medical issues. Ms. Jones argued with the school district and refused every intervention offered. The next necessary step was to issue a criminal citation for violation of the truancy laws. The court accepted a guilty plea from the Jones family, but stayed the fine pending the family’s enrollment in education and counseling programs. After court oversight of the case for a year, the little girl had only one unexcused absence and five days excused absences with medical documentation. Due to her history of absence from school, this past school year – when she was in the fifth grade – was her first full year of school in which she participated.

Legal Consequences of Chronic Truancy – Prosecution of a Criminal Misdemeanor under Penal Code section 270.1

A student is considered a chronic truant if he or she is absent for 10% or more of the school days in the school year from the date of enrollment to the current date – provided that the school has complied with reporting the first and subsequent truancies to the superintendent or attendance supervisor, has sent the notification of first truancy to the parent and has made a conscientious effort to meet with the parent.148Education Code section 48263.6. As such, a student must first be habitually truant before later being classified as chronically truant.

A District Attorney may exercise his or her authority to charge the parent of a chronically truant149As defined in Education Code section 48263.6. student with a criminal misdemeanor, under Penal Code section 270.1, when the guardian has failed to reasonably supervise and encourage the child’s attendance. This statute only applies to parents of children who are at least six years old and up to the 8th grade.

Parents who allow their young children to have chronic levels of truancy are neglecting their child’s needs, regardless of whether that child demonstrates delinquent behavior. Failing to educate a child is an issue of neglect, just like failing to feed or clothe them. - California Senate Committee on Public Safety Analysis of S.B. 1317150Sen. Comm. on Pub. Safety, Analysis of Sen. Bill No. 1317 ( 2009-2010 Reg. Sess.) as amended Apr. 8, 2010, page 6.

Although prosecution of a misdemeanor can result in serious fines and even jail time, Penal Code section 270.1 provides a mechanism to offer parents one final opportunity to improve their child’s attendance before imposing such legal penalties.151When a parent is found guilty of violating Penal Code section 270.1, then he or she is guilty of a misdemeanor offense punishable by a fine up to $2,000, or by imprisonment in a county jail not exceeding one year, or by both fine and imprisonment. Under the statute, the district attorney and the superior court can decide to postpone a judgment (i.e., defer entry of judgment) and enroll the parent/guardian in a program designed to remove the barriers that are keeping a chronically truant child from school. The funding for a program of this kind must be derived solely from non-state sources, such as cities, counties, private grants and non-profit organizations.152Penal Code section 270.1.

As the process outlined above makes clear, there are a multitude of steps school districts and law enforcement must take before anyone is eligible to be prosecuted. This multi-step process allows for early action, but also provides for escalated interventions when initial efforts fail to correct the problem.

It is recommended that parents are imprisoned for truancy violations in only the most extreme cases – it is both traumatic for children and families and costly for taxpayers.153Garrey, 1996.

California is a diverse state with school districts with highly divergent demographics. Accordingly, as described above, our truancy intervention mandates allow a certain amount of flexibility in their implementation. However, that discretion cannot be allowed to obscure the legal duty of districts and parents to follow the clear mandate in the law, nor should it justify wide variations in the quality of attendance supervision in California.

  1.    Cal. Const. Article IX, sections 1, 5; Butt v. State of California (1992) 4 Cal. 4th 668, 685-686; Serrano v. Priest (1976) 18 Cal.3d 728; 766 (Serrano II).
  2.    Serrano v. Priest (1971) 5 Cal.3d 584, 608-09 (Serrano I).
  3.    Serrano I, supra, 5 Cal.3d at p. 605.
  4.    Ibid.
  5.    Education Code section 48200. The terms “parent” and “guardian” are used interchangeably in this chapter to refer to both parents and guardians.
  6.    Exemptions to compulsory education can be found in Education Code sections 48220, 48222, 48223, 48224, and 48230. Exemptions include attendance in a private school, programs for mentally gifted children, instruction by a tutor, and children with part-time permits to work.
  7.    Education Code section 48200.
  8.    See Education Code sections 48263.5, 48320 – 48340.
  9.    Education Code section 48340.
  10.    For example, in Washington State a school district may file a truancy petition with the courts after five unexcused absences in a month, but must file a truancy petition after seven unexcused absences in one month or 10 unexcused absences in a year. (Wash. Rev. Code § 28A.225.030.) In South Carolina, a student is truant when he or she has three consecutive unlawful absences or a total of five unlawful absences – an unlawful absence is one without the knowledge of the parents or without acceptable cause with the knowledge of the parents. (S.C. Code Ann. § 43-2724.) And, in Illinois, a child between ages 7 and 17 must attend public school and can miss no more than 5% of the school year or 9 days. The law previously allowed for 10% or 18 days but was amended in 2011. (105 Ill. Comp. Stats. 5/26-1, 5/26-2, 5/26-2a.)
  11.    For example, in 2010 the ACLU filed a lawsuit alleging that the State of Rhode Island’s truancy court system was overly penal in nature. (http://www.riaclu.org/court-cases/case-details/boyer-v.-jeremiah)
  12.    In re James D. (1987) 43 Cal.3d 903, 915.
  13.    Ibid.
  14.    Education Code section 48260. In addition, Education Code section 48240 requires that the board of education of any school district and of any county must appoint a supervisor of attendance and any assistant supervisors of attendance as may be necessary to supervise the attendance of students in the district or county. The supervisor of attendance is required to ensure compliance with the state’s compulsory education laws which includes truancy.
  15.    Education Code section 48260.5. For the full requirements of the notice, see Education Code section 48260.5, subds. (a) to (h).
  16.    Education Code sections 48260, 48260.5. The school districts become aware of students’ truancies because individual schools must notify the school district’s attendance clerk or superintendent of the district.
  17.    Education Code section 48264.5, subd. (a).
  18.    Education Code section 48260.5. A sample First Notification of Truancy Letter and a sample Third Truancy Letter (Habitual Truant), in multiple languages, are available on the California Department of Education (CDE) Website at http://www.cde.ca.gov/ls/ai/sb/sarbhandbook.asp in the State School Attendance Review Board (SARB) Handbook, at Appendix A, pp. 63-64 and 70.
  19.    Education Code section 48261. Under Education Code section 48264.5, subd. (b), the second time a truancy report is issued the student may be given a written warning by a peace officer, and the student may be assigned by the school to an afterschool or weekend study program.
  20.    Education Code section 48261 requires that all truancies subsequent to the second truancy be reported to the attendance supervisor or superintendent.
  21.    For a full list of recommendations, see Chapter 9.
  22.    Education Code section 48262.
  23.    Ibid.
  24.    Education Code section 48263. A student with irregular attendance may also be referred to a SARB.
  25.    Education Code section 48321.
  26.    Education Code section 48263.
  27.    Welfare and Institutions Code section 601.2. As outlined in Education Code section 48260.6, subdivision (d) and Welfare and Institutions Code section 601.3, district attorneys’ offices and probation departments may elect to participate in an additional truancy mediation program. Under such a program, the district attorney or probation department may request the guardians and student to attend a meeting with the district attorney or probation department to further discuss the possible legal consequences of the minor’s truancy and develop a strategy to resolve the problem. (Education Code section 48263.) If the district attorney does not participate in a truancy mediation program, the SARB may direct the county superintendent (who must abide by the request) to petition a juvenile court to take up a case against the parent/guardian or student. (Ibid.)
  28.    Education Code section 48291.
  29.    For a complete description of the SARB process, see the 2012 State School Attendance Review Board’s Handbook, http://www.sbcss.k12.ca.us/stuServe/SARB/StateSARBHandbook.pdf.
  30.    Education Code section 48264.5, subd. (c).
  31.    Education Code sections 48291, 48292, and 48293; Education Code sections 48264 and 48264.5, subd. (d) and Welfare and Institutions Code sections 601 and 602 provide for the prosecution of truant students. Our research has indicated that, understandably, prosecutors rarely, if ever, prosecute elementary school students for truancy; therefore, this report focuses on the laws relating to, and the prosecution of, the parents of truant elementary school students, rather than the prosecution of students themselves.
  32.    Education Code section 48293, subd. (a).
  33.    Ibid.
  34.    The names have been changed to protect the family’s privacy.
  35.    Education Code section 48263.6.
  36.    As defined in Education Code section 48263.6.
  37.    Sen. Comm. on Pub. Safety, Analysis of Sen. Bill No. 1317 ( 2009-2010 Reg. Sess.) as amended Apr. 8, 2010, page 6.
  38.    When a parent is found guilty of violating Penal Code section 270.1, then he or she is guilty of a misdemeanor offense punishable by a fine up to $2,000, or by imprisonment in a county jail not exceeding one year, or by both fine and imprisonment.
  39.    Penal Code section 270.1.
  40.    Garrey, 1996.