The Court of Appeals affirms a mother’s conviction of three counts of failing to send her children to school in violation of Va. Code §§ 22.1-254 and 22.1-263, based on the children’s consistent late attendance on days they had visitation with the mother.
The children were tardy 63 percent of the days, from five minutes to 20 minutes at the beginning of the school day, on the days that appellant took them to school between Sept. 15 and Jan. 19. On appeal, appellant maintains Code § 22.1-254 only mandates the enrollment of a child in school and neither addresses nor prohibits tardiness. She also challenges the sufficiency of the evidence, contending the evidence did not support a finding that she knowingly and willfully failed to have the children timely appear at school.
The clear intent of the compulsory attendance law is to ensure that children attend school in order to receive the benefits of an education. Common sense therefore dictates that children should be in school from the beginning of the school day until dismissal. Code § 22.1-254 is not limited to mandatory enrollment. It also delineates circumstances where children may be temporarily excused from attendance, as well as long-term non-attendance. The trial court partially relied on an Attorney General Opinion, 300 Va. AG 91, to support its finding that Code § 22.1-254 encompasses tardiness, early departures and absenteeism. We find the AG opinion is consistent with a correct and practical interpretation of the statutory scheme. While neither Code § 22.1-258, nor any other statute in the compulsory attendance law, mentions tardiness, it is clear that tardiness is contemplated within the term “absent” or “fails to report to school.” When a student arrives at school late, he is not present between the time school begins and the time he arrives and thus does not benefit from the educational experience.
Because the mother was convicted and sentenced pursuant to Class 3 misdemeanors, the commonwealth was not required to prove she knowingly and willfully violated the compulsory attendance law, nor was the commonwealth required to prove notice.
The mother was properly convicted of violating Code § 22.1-254.
Petty, J.: Appellant argues that “send” is not defined in Code § 22.1-254(A) and does not include tardiness. I agree. I respectfully dissent. It is clear to me that Code § 22.1-254(A) was enacted to require parents to enroll their children in school. The enumeration of acceptable school choices, and particularly the option for home schooling, establish in my mind that the General Assembly intended the term “send” to mean enroll.
Because it is undisputed that appellant’s children were enrolled in public school, I would conclude the commonwealth has failed to prove a violation of Code § 22.1-254. I would dismiss the warrants.
Blake v. Commonwealth (Frank) No. 1751-12-4, Nov. 19, 2013; Loudoun County Cir.Ct. (Horne) Alexis M. Downing, APD, for appellant; Kathleen B. Martin, Sr. AAG, for appellee. VLW 013-7-314(UP), 15 pp.