Texas Education Code § 25.085(a) requires that a child attend school each day for the entire period that a school’s program of instruction is provided. Attendance is compulsory for a child at least six years of age, or who is younger than six and has been previously enrolled in first grade, and who has not yet reached age 18.14 Throughout this article, this provision is referred to as the compulsory attendance law. The Education and Family Codes contain “truancy” laws to enforce this compulsory attendance requirement.
The 76th Legislature expanded Education Code § 25.085(d) by adding accelerated reading, accelerated instruction, and basic skills programs to the compulsory school attendance requirement. Extended year programs and tutorial classes had already been incorporated into compulsory school attendance under the previous version of § 25.085(d). Thus, students who are required to attend any of those accelerated or compensatory programs are subject to the compulsory attendance laws for those programs the same as they are for a regular school day.
The 76th Legislature also revised Education Code § 25.085 to provide that a student who voluntarily enrolls in school or voluntarily attends school after his 18th birthday is required to attend school each day for the entire period the program of instruction is offered. The student’s enrollment may be revoked for the remainder of the school year if the student has more than five unexcused absences in a semester. Once a student’s enrollment is revoked, the student may be considered an unauthorized person on school grounds for trespass purposes as per Education Code § 37.107.
School districts also may apply Education Code § 25.085(e) to special education students over age 18. While the district must make FAPE available to the student, nothing prevents the school district from applying a neutral administrative rule to that special education student if he or she has more than five unexcused absences in a semester. However, before the school district revokes the special education student’s enrollment, the district should conduct a manifestation determination to rule out any connection between the student’s disability and the absences (i.e. any chance that the absences are a manifestation of the student’s disability).
Special Considerations for the Absent Special Education Student
When a special education student compiles excessive absences, some special precautions should be taken into account. Is it possible that the absences are related to the student’s disability? If so, is there anything the school can do to reduce those absences? Before a school district takes action against a special education student for excessive absences, the ARD committee/IEP team should consider these questions.
There are cases in which Texas hearing officers have ruled against school districts because the district failed to present the issues to the ARD committee. For example, in David A. v. El Paso I.S.D., the hearing officer concluded that the district failed to provide the student with an appropriate education and ordered the school to reimburse the parent for private tuition. The school argued that David’s lack of progress was due to nonattendance. The hearing officer ruled that the district should have held an ARD meeting to determine if the absences were related to the student’s disability.
Prior to initiating compulsory attendance complaints or revoking course credit due to excessive absences, it is advisable to hold an ARD to address these issues. If there is a connection between the disability and the absences, the district should address the problem through behavior strategies and supports for the student. When there is no connection, the district is in a better position to follow through with its proposed action.
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