Subchapter II. Truancy
TITLE 14
Education
Free Public Schools
CHAPTER 27. SCHOOL ATTENDANCE
Subchapter II. Truancy
§ 2721. Definitions.
In this chapter:
(1) "Court" means a Justice of the Peace Court.
(2) "Parent" means a biological or natural parent, an adoptive parent, a person legally charged with the care or custody of a person under 18 years of age, a person who has assumed responsibility for the care of a person under 18 years of age, or a person acting as a caregiver pursuant to the provisions of § 202(f) of this title who has enrolled the pupil in grades kindergarten through 12 of a public school in this State.
(3) "Principal" means the highest administrative official of a public school and includes a person or group of persons designated by the principal to deal with school attendance.
(4) "Record" means written materials and exhibits forwarded to a court by the school with a referral under this subchapter or admitted into evidence at a court hearing.
(5) "School year" means the period of attendance determined by a pupil's local school board pursuant to § 1049 of this title, or in the case of a charter school as determined by the board of directors of the charter school consistent with the school's charter, and any additional academic improvement activities identified in § 2702(g) of this title that a pupil may be required to attend during or following such period of attendance.
(6) "Student" means a person who is enrolled in kindergarten through grade 12 of a public school of this State.
(7) "Truant" means a student who has been absent from school without valid excuse for more than 3 school days during a school year.
(8) "Valid excuse" means an excuse which is approved in the regulations of the district board of education of the school district in which the pupil is or should be enrolled pursuant to the provisions of this title, or in the case of a pupil enrolled in a charter school, by the board of directors of the charter school.
72 Del. Laws, c. 346, § 13; 74 Del. Laws, c. 175, §§ 6-8.;
§ 2722. Absences and truancy.
(a) Subject to the rules and regulations of the local school board, pupils enrolled in the free public schools may be excused by the superintendent of schools or persons authorized by the superintendent. Pupils enrolled in charter schools may be excused by the principal of the school or persons authorized by the principal, subject to rules and regulations promulgated by the board of directors of the charter school.
(b) No pupil who could otherwise legally fail to attend school pursuant to § 2702(a) of this title may do so without the written consent of such person or persons having legal control of that pupil.
24 Del. Laws, c. 121, § 1; Code 1915, § 2313; 32 Del. Laws, c. 160, § 41; Code 1935, § 2685; 14 Del. C. 1953, § 2706; 57 Del. Laws, c. 113; 60 Del. Laws, c. 449, § 4; 63 Del. Laws, c. 290, § 4; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 231, § 1; 71 Del. Laws, c. 180, § 133; 72 Del. Laws, c. 346, § 6; 74 Del. Laws, c. 175, § 9.;
§ 2723. Responsibility of police officers.
(a) Any pupil under the age of 16 identified by a police officer as being off school property without official authorization may be returned to that pupil's home school.
(b) Any pupil under the age of 16 identified by a police officer as being off school property without official authorization may be detained by the police for a period not to exceed 2 hours for the purpose of notification of parent or guardian. This detention may be within the police station but not in a criminally confined area.
63 Del. Laws, c. 290, § 6; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 346, § 12.;
§ 2724. Notification to parents and students.
At the beginning of a school year each school district or public school shall notify each student and the parent of each student of the school attendance requirements of this Code, including the procedures and penalties applicable to truancy. The school district or school may determine the form of the notification.
72 Del. Laws, c. 346, § 14.;
§ 2725. Absences without excuse; truancy conferences.
(a) If a student has been absent from school without a valid excuse 1 or more days, the principal of the school may take such action as the principal considers appropriate.
(b) If a student is truant, the principal may schedule a truancy conference with the student, the student's parent and the principal pursuant to § 2726 of this title. The conference may be attended by other persons as the principal may include.
(c) Following a truancy conference the school shall decide whether or not to file a charge against the parent for a violation of § 2702 of this title; provided, however, that the principal shall refer the case for prosecution following the 30th day of unexcused absence by a student during the school year, in compliance with § 2702(d) of this title, and may refer the case before the 30th day of unexcused absence if the principal determines it is appropriate to do so.
(d) The fact that a student or student's parent may attend or has attended a truancy conference does not bar the principal filing a complaint with a court. The principal's failure to hold a truancy conference does not bar the filing of a complaint with a court and adjudication by a court.
72 Del. Laws, c. 346, § 14.;
§ 2726. Procedure for truancy conferences.
The provisions of § 4122 of this title shall apply to truancy conferences. The principal shall determine the date, time and place of the conference and shall give all participants notice at least 1 week prior to the conference. In conducting a truancy conference, the principal may exclude any person, including a parent or a student, from the conference or part of a conference.
72 Del. Laws, c. 346, § 14.;
§ 2727. Notice of violation and compliance.
No person shall be prosecuted for violation of § 2702 of this title if that person, within 3 days from the time that the person is notified by the superintendent of schools or persons authorized by the superintendent, presents an excuse in writing satisfactory to such superintendent of schools, and complies with the requirements of such § 2702 of this title. The mailing of a notice to the usual address of the offending party shall be sufficient notification.
24 Del. Laws, c. 121, § 2; Code 1915, § 2314; 32 Del. Laws, c. 160, § 42; 33 Del. Laws, c. 175, § 1; Code 1935, § 2686; 14 Del. C. 1953, § 2708; 57 Del. Laws, c. 113; 68 Del. Laws, c. 277, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 346, § 8.;
§ 2728. Procedure for court adjudication.
(a) When the school charges a parent or a student with a violation of § 2702 of this title, the school shall file a written complaint in the court. The complaint shall be on such form(s) as the court may require. The school shall be the complainant and the parent or the student shall be the defendant. The court must determine whether probable cause exists to issue a warrant or summons against the person charged. When there is probable cause to find that a student is truant, probable cause to issue a warrant or summons for a parent shall exist when the parent is named as the parent or guardian on the student's school records and the parent resides in Delaware.
(b) The school shall attach to the complaint any record relevant to the allegations of the complaint.
(c) When a complaint is filed, all sanctions imposed by the principal shall remain in effect unless suspended or terminated by the principal or stayed by the court.
(d) The school may request that the court postpone adjudication. The court in its discretion may postpone the proceedings and may impose conditions on the student or parent.
72 Del. Laws, c. 346, § 14; 75 Del. Laws, c. 107, § 1.;
§ 2729. Failure to send; affirmative defense; penalties.
(a) If a charge is filed against a parent for a violation of § 2702 of this title, the court shall determine whether the evidence establishes beyond a reasonable doubt that the parent has violated the section.
(b) In the prosecution of a parent for a violation of § 2702 of this title, it shall be an affirmative defense that the parent has made substantial and reasonable efforts to comply with the compulsory attendance requirements of § 2702 but is unable to cause the child to attend school. It shall also be an affirmative defense that the parent does not have legal custody of the student. Other affirmative defenses may be permitted as required in the interests of justice. If the court determines the affirmative defense is valid it shall dismiss the complaint against the parent and the school may file a complaint against the student pursuant to § 2730 of this title.
(c) This section shall not apply to a parent whose child is receiving instruction pursuant to § 2703 of this title, to children exempted from compulsory attendance requirements pursuant to § 2705 of this title, or whose children are in compliance with school attendance requirements.
(d) A parent who is determined to have violated § 2702 of this title is guilty of an unclassified misdemeanor and shall be sentenced as follows:
(1) For a first offense, a fine of not less than $25 nor more than $300, or imprisonment for not more than 10 days or both;
(2) For a second offense, a fine of not less than $50 nor more than $500, or imprisonment for not more than 20 days or both;
(3) For a third or subsequent offense, a fine of not less than $230 nor more than $1,150, or imprisonment for not more than 30 days or both.
(e) To the extent possible the fine shall be commensurate with the number of days the student was absent from school without valid excuse.
(f) The court may order the parent to perform unpaid community service in lieu of a fine. The court may require that all or part of the service may be performed for a public school district.
(g) The court may also order as conditions of release prior to judgment or as conditions of sentence upon conviction such conditions as the court considers necessary to obtain compliance with school attendance requirements. These conditions include but are not limited to the following:
(1) Verifying the child's attendance with the school;
(2) Meeting with school officials;
(3) Taking the child to school;
(4) Taking the child to the bus stop;
(5) Attending school with the child;
(6) Undergoing medical, psychological or psychiatric evaluations and following the evaluator's recommendations;
(7) Undergoing an evaluation for drug, alcohol, or other substance abuse and following the evaluator's recommendations; and
(8) Taking the child for medical, psychological or psychiatric evaluation or for drug, alcohol or other substance abuse evaluation and following the evaluator's recommendations.
(h) Upon conviction, the name and address of the parent and a summary of the disposition of any offenses for which the parent was convicted shall be reported by the Court to the Division of Family Services of the Department of Services for Children, Youth and Their Families and to the Division of Social Services of the Department of Health and Social Services.
(i) The provisions of § 4218 of Title 11 (probation before judgment) shall apply to a parent charged with violation of § 2702 of this title.
72 Del. Laws, c. 346, § 14; 73 Del. Laws, c. 301, § 2; 75 Del. Laws, c. 107, § 2.;
§ 2730. Failure to attend; penalties.
(a) The school may file a civil charge of truancy against the student in the Justice of the Peace Court if:
(1) The student is age 12 or older; and/or
(2) The Court determines that a parent who is charged with violating § 2702 of this title has a valid affirmative defense under § 2729(b) of this title.
(b) The court shall determine whether a preponderance of the evidence establishes that the student has violated § 2702 of this title.
(c) If the Court determines the student has violated § 2702 of this title, it shall adjudicate the student a truant and may order the following remedial dispositions:
(1) Community service;
(2) Counseling;
(3) Substance abuse evaluation and treatment;
(4) Mental health evaluation and treatment;
(5) A curfew with hours set by the court;
(6) Suspension or revocation of any permit held by the student, including a work permit or a driver's permit;
(7) Suspension or revocation of any license held by the student, including a driver's license or a hunting license;
(8) Prohibition of the student's participation in or attendance at any extra-curricular activity or social event which is an official school event or is sponsored by the school or held on school property;
(9) A recommendation that the student enroll in the school in alternative educational and related services in accordance with Chapter 16 of this title; and
(10) Such other action as is permitted by statute or by court rule.
The court shall not suspend or revoke a student's permit or license if the student demonstrates to the court that suspension or revocation would impose an economic hardship on the parent or on the student's family.
(d) Where the court has ordered the suspension or revocation of a student's permit or license, the student is prohibited from applying for a new permit or license without permission of the court as long as the student is under the jurisdiction of the court.
72 Del. Laws, c. 346, § 14; 73 Del. Laws, c. 301, § 1.;
§ 2731. Enforcement of court order.
(a) The court shall retain jurisdiction of the matter until all terms of the court's order have been complied with regardless of any change in the student's age, marital status or choice of educational source or location.
(b) Notwithstanding any provision of this Code to the contrary, if the court determines a student has not complied with the terms of the court's order, it may charge the noncompliant student with criminal contempt pursuant to § 1271 of Title 11, and fully adjudicate the matter in the Justice of the Peace Court.
72 Del. Laws, c. 346, § 14; 76 Del. Laws, c. 12, § 1; 76 Del. Laws, c. 23, §§ 2, 3.;
§ 2732. Appeals.
(a) A parent convicted of a violation of § 2702 of this title may appeal to the Court of Common Pleas in the county in which the judgment was given. The appeal shall be filed within 15 days from the date of conviction. On appeal the Court shall make a de novo determination.
(b) No stay shall be granted pending an appeal pursuant to subsection (a) of this section unless the person appealing shall, at the time the appeal is taken, gives bond in any amount with surety to be fixed by the Court.
(c) A student who has been adjudicated truant pursuant to § 2730 of this title, or has been adjudicated in contempt pursuant to § 2731 of this title, may appeal to the Family Court in the county in which the adjudication occurred. The appeal shall be filed within 15 days of the date of the adjudication. On appeal the Court shall make a de novo determination based on the record below.
(d) No appeal of the adjudication of truancy or truancy-related contempt pursuant to subsection (c) of this section shall stay execution of the remedial disposition unless a judge of the Family Court orders a stay.
72 Del. Laws, c. 346, § 14; 76 Del. Laws, c. 12, §§ 2, 3.;
§ 2733. Jurisdiction; venue.
(a) The Justice of the Peace Court shall have exclusive original jurisdiction of complaints filed pursuant to this title.
(b) All complaints under this title shall be filed in a Justice of the Peace Court in the county where the school the child is required to attend is located or in the county in which the office of the school district which contains the child's school is located.
(c) In the event that a student withdraws from school for any reason other than age and does not re-enroll in another public school, the court, in its discretion, may retain jurisdiction for the purpose of ensuring that the student's alternative educational environment was not an attempt to avoid the compulsory attendance requirements of § 2702 of this title.
72 Del. Laws, c. 346, § 14; 76 Del. Laws, c. 23, § 4.;
§ 2734. Disposition and accounting of fines.
The fines provided for by § 2729 of this title shall, when collected, be paid over by the officers collecting the same to the treasurer of the board of education of a reorganized school district according to the residence of the person convicted, to be accounted for by such treasurer or by the Department of Education as other moneys raised for school purposes.
24 Del. Laws, c. 121, § 2; Code 1915, § 2314; 32 Del. Laws, c. 160, § 43; Code 1935, § 2687; 14 Del. C. 1953, § 2710; 57 Del. Laws, c. 113; 71 Del. Laws, c. 180, § 134; 72 Del. Laws, c. 346, § 10.;
§ 2735. Special procedure for expungement of truancy records.
(a) At the time that a case is closed because there has been compliance with all court orders issued pursuant to this subchapter, the following shall be automatically expunged:
(1) Any records of charges against or the conviction of a parent or guardian for failure to send; or
(2) Any records of the charges or adjudication of truancy against a student.
(b) In any case which was closed because there was compliance with all court orders and the automatic expungement required by subsection (a) of this section did not occur either due to error or omission on the part of the Court or the prosecuting agency or because such expungement was not authorized at the time the case was closed, the Justice of the Peace Court shall grant such expungement upon motion of a parent, guardian or student. There shall be no filing fee for such applications.
(c) Following the closing of a case for any reason other than compliance with all court orders, the records listed in subsection (a) of this section may only be expunged upon application to the Justice of the Peace Court. The Justice of the Peace Court may, in its discretion, grant or deny the request or make the granting of such request subject to such reasonable terms and conditions as may be appropriate. The civil filing fee shall apply to such applications.
(d) Upon either the automatic expungement of records or the issuance of an order expunging truancy records:
(1) The State Bureau of Identification shall take all necessary steps to ensure that the expunged records or the information contained therein is not released for any reason except as specified in this section. In response to requests from persons other than law-enforcement officers for such information or records, the State Bureau of Identification, law-enforcement officers or Truancy Court officials in the course of another truancy case involving the same parent or child and departments shall reply that there is no record.
(2) Except for the disclosure to law-enforcement officers acting in the lawful performance of their duties in investigating criminal activity or to Truancy Court officials in the course of another truancy case involving the same parent or child, it shall be unlawful for any person having or acquiring access to an expunged truancy record to open or review it or to disclose to another person any information from it without a Court order.
(3) Disclosure to law-enforcement officers shall be permitted only for the purpose of investigating particular criminal activity in which the person, whose records have been expunged, is considered a suspect and the crime being investigated is a felony or, with regard to records of parents or guardians for failure to send, pursuant to an investigation of an employment application as an employee of a law-enforcement agency.
(4) Nothing herein shall require the destruction or deletion of records of the Department of Justice, DELJIS or court records, including electronic records. However, all court DELJIS and Department of Justice records relating to a charge or case which has been expunged shall be so handled as to ensure that any information contained therein shall not be disclosed to the public.
(5) An offense for which records have been expunged pursuant to this section shall not have to be disclosed by the person for any reason.
(6) Any person who violates paragraph (d)(2) of this section shall be guilty of a class B misdemeanor, and shall be punished accordingly.
75 Del. Laws, c. 92, § 1.;
§ 2736. Payment to Woods Haven School for Girls.
Repealed by 76 Del. Laws, c. 280, § 423, eff. July 1, 2008.