Commentary

Jail for Missed Days at School? The Madness of Truancy Laws.

We’ve seen it happen again and again: libertarians are derided over some supposedly crazy or esoteric position, years pass, and eventually others start to see why our position made sense. It’s happened with asset forfeiture, with occupational licensure, with the Drug War, and soon, perhaps, with libertarians’ once-lonely critique of school truancy laws.

The state finds ever more ways to menace you with imprisonment…for your own good.

People, the Atlanta Journal-Constitution, and other outlets are reporting on the case of Julie Giles of Sylvania, Georgia, who was arrested and put in shackles after her son Sam, who has been on the honor roll and won a “Student of the Month” citation, had nine unexcused sick absences when only six are allowed. Washington Post columnist Petula Dvorak has reported on a 13-year-old straight-A piano prodigy charged with truancy in D.C. for taking ten days off to play on international concert stages, and another local mother charged with truancy because she took her son on an overseas trip for purposes of adopting his little brother.

In his 1980 bestseller Free to Choose, economist Milton Friedman (who was also a prescient critic of occupational licensing and the Drug War) had this to say about compulsory school attendance laws:

But it is far from clear that there is any justification for the compulsory attendance laws… research has shown that schooling was well-nigh universal in the United States before attendance was required. In the United Kingdom, schooling was well-nigh universal before either compulsory attendance or government financing of schooling existed. Like most laws, compulsory attendance laws have costs as well as benefits. We no longer believe the benefits justify the costs.

American policymakers didn’t just ignore Friedman’s views, they galloped off in the other direction. Coaxed by the education lobby, legislatures toughened school attendance laws, barbing them with more criminal and civil penalties (as distinct from administrative sanctions such as, say, not letting a truant student advance to the next grade without showing appropriate competence). George W. Bush’s secretary of education in 2004 “hosted the first-ever National Truancy Prevention Conference, where he called for a ‘crackdown’ on school absence.” On the other side of the aisle, impeccably progressive California attorney general Kamala Harris as a state senator introduced a bill to imprison parents for as long as a year if their kids miss too much school. Lawmakers also proceeded to raise school-leaving ages; President Obama himself has proposed making schooling compulsory until age 18 or graduation.

Texas not only criminalized truancy but has provided for young offenders to be tried in adult courts, leading to extraordinarily harsh results especially for poorer families. But truancy-law horror stories now come in regularly from all over the country, from Virginia to California. In Pennsylvania a woman died in jail after failing to pay truancy fines; “More than 1,600 people have been jailed in Berks County alone—where Reading is the county seat—over truancy fines since 2000.”)

The criminal penalties, combined with the serious consequences that can follow non-payment of civil penalties, are now an important component of what has been called carceral liberalism: we’re finding ever more ways to menace you with imprisonment, but don’t worry, it’s for your own good. Yet jailing parents hardly seems a promising way to stabilize the lives of wavering students. And as Colorado state Sen. Chris Holbert, sponsor of a decriminalization bill, has said, “Sending kids to jail—juvenile detention—for nothing more than truancy just didn’t make sense. When a student is referred to juvenile detention, he or she is co-mingling with criminals—juveniles who’ve committed theft or assault or drug dealing.”

Fortunately, if belatedly, a reaction is under way. The Marshall Project, which has done some excellent work questioning carceral liberalism from a generally liberal perspective, published a powerful critique of truancy criminalization in March (“Inexcusable Absences”). And the Texas legislature has now passed and sent to Gov. Greg Abbott a bill to modify its punitive law, following Gov. Rick Perry’s veto of a similar bill in 2013.

Somewhere, Milton Friedman is nodding.

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.