State of the Student: Prioritizing Parental Discretion in School Absence

Abstract

The number of children in the United States who are chronically absent from school has doubled in less than a decade. The escalating absenteeism may suggest a growing demand for more leniency in rigid public school attendance rules which fall under the jurisdiction of state and local governments. Little has been written about the constitutionality of demanding so much time in a school building, in some cases without a well-defined mission, and with next to no latitude for personal decisions about absences. Compulsory education laws that eliminate parental discretion limit children’s freedom from physical restraint, and parents’ rights to raise them without undue governmental interference, both of which are fundamental rights.

This Article considers the background of compulsory education laws, explores the intersecting interests of states, parents, and children, and argues that a strict scrutiny standard must be applied to compulsory education laws so that state actions depriving citizens of the fundamental right to autonomy over their time are examined and justified. It also discusses the practical complications that parents and children sometimes face in complying with unyielding mandatory attendance policies that leave no room for personal decision-making.

It is important to avoid simply setting a fixed number of school days or hours based on the bygone realities of a century ago. Further, parents have a constitutional right to exercise judgment over the best use of children’s time in furtherance of what they deem healthy, educational, and valuable, outside of school walls. To that end, laws surrounding absence should transparently provide them with a bank of time to use as they see appropriate, without distinguishing between excusable justifications and inexcusable reasons nor requiring explanations. The state’s rights to an educated citizenry must, to some degree, yield to the personal liberties of families over their own time.

Keywords: education law, education policy, public school education, fundamental rights, parents' rights, children's rights

JEL Classification: K10, K19, K30, K36, K40, K49