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Court questions school tardiness convictions

A Loudoun County mother convicted of misdemeanors for her children’s school tardiness took her case to the Supreme Court of Virginia on Sept. 9.

Last November, the Court of Appeals affirmed Maureen Blake’s conviction on three counts of failing to send her three children to school, in violation of Virginia Code §§ 22.1-254 and 22.1-263.

Code § 22.1-254, part of the compulsory attendance law, says that parents of children between five and 18 years old shall “send such child[ren] to a public school . . . .”

Blake’s lawyer, Assistant Public Defender Alexis M. Downing, told the high court that Code § 22.1-254 only mandates the enrollment of a child in school and neither addresses nor prohibits tardiness.

The word “send” simply means “enroll,” Downing argued. To “send” the child to school under § 22.1-254 means signing the child up for the school year, not insuring the child’s daily attendance.

If the court decides tardiness does not fall within this statute, “are there other means to address a child who is habitually tardy?” asked Chief Justice Cynthia D. Kinser. Downing cited civil penalties including filing a CHINS petition, for a child in need of services. 

The General Assembly did not intend to criminalize this behavior, Downing argued.

Senior Assistant Attorney General Kathleen B. Martin argued for a “common sense” approach to interpreting the statutory scheme governing school attendance. “Send” has to mean more than simply signing up a child for a school year, under the commonwealth’s view.

“If it were truly about common sense, if your interpretation is correct, if you’re late one day 30 minutes, you can be brought into court for a misdemeanor,” Justice LeRoy F. Millette Jr. observed.

Hypothetically, yes, but the school has some discretion, Martin responded.

“Am I going to be liable for a $500 fine?” Millette asked.

Martin was doubtful that a school board would go to such lengths for a single instance of tardiness.

“Suppose I’ve got a really mean principal?” Millette said. Or what if a parent sent a child to school on time, only to later learn the child had skipped school?

Such an interpretation of Code § 22.1-254 “would also criminalize a situation where my child was late and I didn’t even know about it,” Millette said.

If the commonwealth’s interpretation depends on prosecutorial discretion and school board policy to save a parent from criminal prosecution and fines, what specific case law supports using prosecutorial discretion or school board policy as instruments of statutory construction, asked Justice Donald W. Lemons.

It’s certainly something a court can consider when looking at what is common sense interpretation, Martin responded.

 A decision on Blake’s appeal is expected by the end of October.

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