The State of Michigan has a compulsory school attendance law that requires a parent, legal guardian or other person having control or charge of a child to send that child to public school for education proposes from the age of six to the child’s eighteenth birthday. MCL 380.1561(1). A child is ONLY except from attending public school for the entire school year under the following circumstances:
- “The child is attending regularly and is being taught in a state approved nonpublic school, which teaches subjects comparable to those taught in the public schools to children of corresponding age and grade, as determined by the course of study for the public schools of the district within which the nonpublic school is located.” MCL 380.1561(3)(a).
- “The child is less than 9 years of age and does not reside within 2-1/2 miles by the nearest traveled road of a public school.” MCL 380.1561(3)(b). This exception does not apply “[i]f transportation is furnished for pupils in the school district of the child’s residence.” (e.g. school bus service comes at or near the home).
- “The child is age 12 or 13 and is in attendance at confirmation classes conducted for a period of 5 months or less.” MCL 380.1561(3)(c).
- “The child is regularly enrolled in a public school while in attendance at religious instruction classes for not more than 2 class hours per week, off public school property during public school hours, upon written request of the parent, guardian, or person in loco parentis.” MCL 380.1561(3)(d).
- “The child has graduated from high school or has fulfilled all requirements for high school graduation.” MCL 380.1561(3)(e).
- “The child is being educated at the child’s home by his or her parent or legal guardian in an organized educational program in the subject areas of reading, spelling, mathematics, science, history, civics, literature, writing, and English grammar.” MCL 380.1561(3)(f).
A child or adult that does not regularly attend school as required by law can be found guilty of the crime of truancy which can be punishable by fines, probation or even incarceration.
ENFORCEMENT OF SCHOOL ATTENDANCE
The intermediate school board must select one or more persons to serve as “attendance officers” for the intermediate school district who assume office upon filing an acceptance, taking an oath, and posting a surety bond of $1,000.00. MCL 380.1571(1). Local school districts with more than 1,000 students may employ their own attendance officers who must also post a surety bond of $1,000.00 to assume office. MCL 380.1571(2).
The attendance officer is required to investigate every case of nonattendance at school when notified by a teacher, superintendent or other school staff. “If a child is repeatedly absent from school without valid excuse, or is failing in schoolwork or gives evidence of behavior problems, and attempts to confer with the parent or other person in parental relationship to the child fail, the superintendent of schools, or the intermediate superintendent in a district which does not employ a superintendent, may request the attendance officer to notify the parent or other person in parental relationship by registered mail to come to the school or to a place designated at a time specified to discuss the child’s irregularity in attendance, failing work, or behavior problems with the proper school authorities.” MCL 380.1586(2).
“If a parent or other person in parental relation fails to send a child under his or her control to the public school or other school listed under [MCL 380.1561], the attendance officer, upon receiving notice from proper authority of that fact, shall give written notice in person or by registered mail to the parent or other person in parental relation requiring the child to appear at the public school or other school on the next regular school day following the receipt of notice, and to continue in regular and consecutive attendance in school.” MCL 380.1587. At this parent meeting, school officials must try to figure out the reasons for the non-attendance and offer interventions to deal with the situation such as mental health screenings, tutoring, mentoring or the need for an individualized education plan.
If the parent fails to comply with this notice or the truancy continues after attempts to resolve the problem, “[t]he attendance officer shall make a complaint against the parent or other person in parental relation having the legal charge and control of the child who fails to comply to the court having jurisdiction in the county of residence for refusal or neglect to send the child to school.” MCL 380.1588. The court shall issue a warrant upon the complaint compelling the appearance of the parent and shall proceed to hear and determine it in the same manner as is provided for other cases under its jurisdiction. Id.
Likewise, the family division of the circuit court in the county where the minor under 18 years old resides has exclusive jurisdiction over truants, and the attendance officer can make a referral to the prosecuting attorney to petition the absentee child to appear before the judge or referee to face justice for truancy charges.
However, Michigan law lacks a clear definition of what it means to be chronically absent or truant. How much is too much for a child to be “repeatedly absent from school”? In 2017, Senate Bills 103 through 106 were introduced in the Michigan Legislature that attempted to define truancy as a child who has 10 or more unexcused absences per school year, but only can be considered truant once during a school year. Chronically absent would be defined as a child who is absent for 10 percent or more of the scheduled school days in a school year and would include days missed due to excused absences, unexcused absences, suspension or expulsion. These bills are stuck in committee and have not been passed as law, so the standard for truancy is whatever the attendance officer, school district and the prosecuting attorney believe it is.
PENALTIES FOR TRUANCY AGAINST MINORS
Truancy is considered a “status offense” in Michigan, and juveniles come under the exclusive jurisdiction of the court for the following reason:
- “The juvenile willfully and repeatedly absents himself or herself from school or other learning program intended to meet the juvenile’s educational needs, or repeatedly violates rules and regulations of the school or other learning program, and the court finds on the record that the juvenile, the juvenile’s parent, guardian, or custodian, and school officials or learning program personnel have met on the juvenile’s educational problems and educational counseling and alternative agency help have been sought. ‘[L]earning program’ means an organized educational program that is appropriate, given the age, intelligence, ability, and psychological limitations of a juvenile, in the subject areas of reading, spelling, mathematics, science, history, civics, writing, and English grammar.” MCL 712A.2(a)(4).
Truancy is not a “strict liability” offense under the juvenile code and the absences must be “willful”. “Willful” means voluntary and intentional, but not necessarily malicious, and also involves design and purpose. “[W]hen a statute prohibits the willful doing of an act, the act must be done with the specific intent to bring about the particular result the statute seeks to prohibit.” People v Janes, 302 Mich App 34, 41; 836 NW2d 883 (2013). The Michigan Court of Appeals reversed a truancy adjudication during In re Napieraj, 304 Mich App 742 (2014) finding that the standard of “willful” was not satisfied:
- ‘Our review of the record compels a finding that respondent’s conduct in this case was not willful as contemplated under MCL 712A.2(a)(4). Petitioner’s own witnesses admitted that certain of respondent’s absences were attributable to illness and fear of bullying. Moreover, petitioner’s own attendance record categorized many of respondent’s absences as “excused,” although the school official testified, in essence, that “excused” did not mean “excused” for purposes of the allegations made in the petition against respondent. The official testified that the designation “E-P” on the attendance record indicated “excused, parent called [in],” and the notation “E-IE’ designated “excused for illness,” a circumstance where a parent called to report that the student was home sick. The official was unsure what the “E-PC” designation indicated — he speculated that it was a parent call-in — and that “R” indicated an absence due to a school-related function, which absence would not be considered as truant. When asked about the use of the word “excused” on the attendance record in light of the school’s position that, instead, the referenced absences were in fact “unexcused,” the official said, “[y]ou know, I — excused is an interesting term. It just means a parent called.” Thus, it appears that respondent’s attendance record says one thing but means another and that certain “excused” absences were in reality “unexcused.”’ 304 Mich App at 748.
- ‘Respondent’s mother provided the reasons for respondent’s absences. Respondent was being bullied in school and he would periodically become physically ill and vomit in the morning for several hours; again, petitioner conceded it had received reports of bullying. Respondent’s mother also provided a doctor’s note to *749the school excusing certain of the disputed absences, and excused two days in March 2012 because respondent was competing at a dog show in Kentucky — an activity recommended by respondent’s therapist. Respondent missed two or three days after that because of “a stomach bug” and when he had a migraine headache, a symptom of his Asperger’s syndrome. Finally, respondent’s mother explained that she was hesitant to take her son to the doctor’s office because it cost between $50 and $200 per visit. This evidence was not disputed, except by testimony stating the school’s position that the absences noted as excused on the attendance sheet were, in fact, apparently secretly unexcused, and that any absence required a doctor’s note. We conclude that, under these facts, respondent’s mother exercised reasonable parental discretion and that the absences should have been deemed excused at her request.’ 304 Mich App at 748-749.
- ‘On this record, and contrary to the notion that respondent’s absences were “voluntary or intentional,” the evidence militates against a conclusion that respondent’s absences were “willful” within the meaning of MCL 712A.2(a)(4). The referee failed to address the evidence presented on the record or make any reference to the “willful” element of the statute under which respondent was charged. Indeed, the referee made no findings of fact or conclusions of law of any kind and does not appear to have applied the law to the facts of the case in any way. It appears rather that the referee substituted her personal experience and bias and failed to apply the law to the facts; such a position is untenable. Reversed and remanded for entry of an order of dismissal.’ 304 Mich App at 749.
“[I]n the case of a handicapped student, a school board may petition the probate court to take jurisdiction over the student under MCL 712A.2(a)(4); MSA 27.3178(598.2)(a)(4), only after administrative proceedings under the school code’s special education provisions have terminated and a final decision has been made that no program within the school system can adequately address the child’s special needs and satisfactorily develop the child’s maximum potential.” Flint Board of Education v Williams, 88 Mich App 8, 17 (1979).
Where a juvenile is found to come under the jurisdiction of the court for truancy, the judge or referee can issue any of the following dispositional orders as punishment:
- “Warn the juvenile or the juvenile’s parents, guardian, or custodian and… dismiss the petition.” MCL 712A.18(1)(a).
- “Place the juvenile on probation, or under supervision in the juvenile’s own home or in the home of an adult who is related to the juvenile. The court shall order the terms and conditions of probation or supervision, including reasonable rules for the conduct of the parents, guardian, or custodian, if any, as the court determines necessary for the physical, mental, or moral well-being and behavior of the juvenile.” MCL 712A.18(1)(b).
- “[P]lace the juvenile in or commit the juvenile to a private institution or agency approved or licensed by the department’s division of child welfare licensing for the care of juveniles of similar age, sex, and characteristics.” MCL 712A.18(1)(d).
- “[C]ommit the juvenile to a public institution, county facility, institution operated as an agency of the court or county, or agency authorized by law to receive juveniles of similar age, sex, and characteristics.” MCL 712A.18(1)(e).
- “Order the parents, guardian, custodian, or any other person to refrain from continuing conduct that the court determines has caused or tended to cause the juvenile to come within or to remain” under the jurisdiction of this court. MCL 712A.18(1)(g).
- “Order the juvenile to engage in community service.” MCL 712A.18(1)(i).
- If the juvenile violates a court order regarding probation conditions or failing to go to school as ordered, then the court can “[o]rder the juvenile to be placed in a secure facility.” MCL 712A.18(1)(k).
A juvenile can be on probation until the age of 19 in the family division of the circuit court.
PENALTIES FOR TRUANCY AGAINST ADULTS
Parents have the affirmative duty to send their children to public schools unless they fit into one of the exceptions under MCL 380.1561(3). In addition, other common defenses to truancy against parents include establishing that the attendance officer or school district did not provide proper notice to the parents of the attendance issues as required by statute before filing criminal charges. In practice, schools will often send repeat notices and try to resolve the problem before pursuing court remedies, so a parent is often facing a mountain of evidence by the time the prosecuting attorney gets involved.
A parent or other person in parental relation to the child who is convicted of truancy is guilty of a misdemeanor punishable by a fine between $5.00 and $50.00 or up to 90 days in jail, or both. MCL 380.1599. Prior to March 2021, truancy used to have a minimum punishment of 2 days in jail, but that has since been repealed. Parents should also be aware that a referral will often be made to Child Protective Services at this point and may face the possibility that the state will attempt to remove the children from their care due to “educational neglect”.
THE BOTTOM LINE
Truancy charges are crimes in Michigan that can result in misdemeanor convictions for adults. These matters are taken very seriously by prosecutors and judges, so you need a skilled criminal defense lawyer in your corner that can aggressively protect your rights and assert all of the defenses available to you under the law.
If you or a loved one have any questions about Michigan’s truancy laws or need legal representation in a juvenile or adult criminal proceeding, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.