When E.S. was a 13-year-old middle school student in the Bellevue School District, she was absent for 73 of the first 100 days of the 2005-06 school year. In January 2006, E.S., her mother and the assistant principal of her middle school met to ensure her future attendance and to reengage E.S. with school. At the meeting, E.S. and her mother were told that any further medical absences would need to be verified. They were also informed that the school district would be required by Washington law to file a truancy petition in juvenile court if the unexcused absences continued. Despite these warnings, E.S. continued to miss school.
In March 2006, the district filed a truancy petition in King County Juvenile Court pursuant to RCW 28A.225.035, seeking an order requiring E.S. to attend school. E.S., her mother, and the district's representative attended the initial truancy hearing. E.S. was not represented by an attorney. The Court Commissioner found E.S. truant and informed E.S. that any further absences would require a medical note. E.S. said that she understood and she agreed with the school attendance requirement. The Court Commissioner also informed E.S. and her mother that if E.S. did not go to school, the district could bring a motion for contempt and that the Juvenile Court could enter sanctions against E.S.
Despite these warnings, E.S. continued to miss school, and the school initiated contempt proceedings. E.S. failed to comply with the initial contempt proceedings. Over the course of the next year, the Juvenile Court held several contempt hearings and ordered sanctions against E.S., who failed to comply with the sanctions and did not attend school.
E.S. was represented by counsel at all of her contempt hearings. In May 2007, E.S.'s counsel filed a motion with the Juvenile Court to set aside the truancy finding, on the ground that the Juvenile Court should have appointed E.S. counsel at the initial truancy hearing. E.S.'s counsel also argued that E.S. could not have fully understood the legal issues in her case at the initial truancy hearing because of her age, and an attorney could have presented arguments on her behalf at the initial hearing.
The Juvenile Court denied the motion, and the Superior Court affirmed the Juvenile Court's decision. The Court of Appeals reversed and held that "[a] child's interests in her liberty, privacy, and right to education are in jeopardy at an initial truancy hearing." The Court of Appeals also held that "due process requires the provision of counsel for all children appearing at an initial truancy hearing."
The Washington Supreme Court Ruling
The Washington Supreme Court held that students are not required to be provided with an attorney at an initial truancy hearing. The Court rejected E.S.'s argument that she had been denied due process, reasoning that the truancy hearing was the step before a contempt hearing at which sanctions could be imposed. Specifically, the Court noted that it is significant that contempt sanctions could not have been imposed on E.S. at the initial hearing. Further, because E.S. was provided with counsel at all contempt hearings, where sanctions were a possibility, the Court held that E.S. was not deprived of her due process rights.
The Supreme Court explained that E.S. was not denied her right to an education. E.S. argued that "a misguided decision made during an initial truancy hearing 'could disrupt the child's education by introducing or exacerbating stigma, uncertainty, and instability.' " The Court rejected this argument and noted that the "overriding purpose of the compulsory school attendance law, Chapter 28A.225 RCW, is to protect, rather than interfere with, the child's right to an education." The Court also noted that the statute protects students by providing the right to counsel, even at the initial hearing stage, in circumstances where a trial court deems counsel necessary.
Although the Supreme Court agreed that a student should be provided with counsel at contempt proceedings, the Court rejected E.S.'s argument that because children are unable to think as adults, counsel is required at the initial hearing. The Court reasoned that issues addressed at initial truancy hearings are uncomplicated and straightforward and students are not at risk of being disadvantaged. The Court also recognized that costs would rise for school districts and additional administrative resources would be expended if an attorney had to be appointed at all initial truancy hearings.* Ultimately, the Court held that not having counsel at all initial truancy hearings does not deprive students of any federal or state constitutional rights.
Lessons for Superintendents
The Bellevue School District decision reestablishes the principle that students are not entitled to have legal counsel at initial truancy hearings.
Implementation of the Becca Bill is already an expensive proposition for school districts and counties.* The Bellevue School District decision returns districts and counties to the common practice of having no legal representative for students present at the initial truancy hearing.
* In most counties, the prosecuting attorney represents school districts in truancy matters, and public defender organizations furnish counsel to students. Thus, there is typically no direct cost to school districts for counsel in such matters.
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