Virginia Custody: Tardies – A Silent Crime Under the Virginia Code

Is it a crime in Virginia for you to allow your children to show up late to school too often? In Blake v. Virginia, Record No. 1751-12-4 (Va. Ct. App. 2013) (unpublished), the defendant convicted of three counts of failing to send her three children to school in violation of Virginia Code §§ 22.1-254 and 22.1-263.  In particular, the defendant was convicted of failing to send her three children to school on time in violation of Virginia Code §§ 22.1-254 and 22.1-263.  Her three children were late 10 of 16 days over a fourth month period.  Was it illegal for the mother of the children to let this happen in Virginia under those code sections?

Va. Code § 22.1-254 essentially states that you must send your child to a school unless an exception applies (e.g., bona fide religious training, conscience objection, or home schooling).   Its own headings corroborate the same: “Compulsory attendance required; excuses and waivers; alternative education program attendance; exemptions from article.”  It does not include any words addressing failing to get to school on time like late, tardy, or early departure.  It, nevertheless, states the following:

“Except as otherwise provided in this article, every parent, guardian, or other person in the Commonwealth having control or charge of any child who will have reached the fifth birthday on or before September 30 of any school year and who has not passed the eighteenth birthday shall, during the period of each year the public schools are in session and for the same number of days and hours per day as the public schools, send such child to a public school or to a private, denominational, or parochial school . . .” Va. Code § 22.1-254(A) (emphasis added).

So what does “send” mean in this context?  Send as in enroll the child?  Send as in attend?  Send as in attend every second of school?  And, given the various interpretations possible of “send,” is this language really enough to criminalize a parent’s failure to get his or her children to school on time?  The Virginia Court of Appeals miraculously holds that it does.  The majority doesn’t bother defining “send” despite outlining two separate definitions in its opinion.  The majority instead just jumps to its conclusion:  “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.”  Justice Petty, in dissent, convincingly argues that this is a ridiculous reading given the particular language used (e.g., no mention of late, tardy, or early departure) and given the particular context it was used, including the fact that it would make no sense for the legislature to criminalize tardiness in Va. Code § 22.1-254(A) and then criminalize it again using much more specific language in Va. Code § 22.1-279.3, which imposes on parents a “duty to assist the school in enforcing . . . compulsory school attendance.”[1]

So what’s the bottom-line in all of this?  Get your kids to school or else you can face criminal prosecution under an apparently expanding list of code sections in Virginia.

[1] It’s unclear from the opinion why the mother was not charged under Va. Code § 22.1-279.3