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Marissa McClellan, who leads child protective services in Pennsylvania’s capital city, has been struggling to fall asleep at night. But it’s not the pandemic’s growing death toll or the collapsing economy that’s keeping her up. She’s worried about the children who aren’t showing up for school.

Ever since the pandemic pushed schools into disarray, education leaders from across Dauphin County have overwhelmed her agency with reports of truancy, meaning that students aren’t showing up for class — either remotely or in-person — but lack a valid excuse for their absence. Before the pandemic, such cases were rare.

“All of a sudden we were flooded with truancy referrals,” said McClellan, the administrator for Dauphin County Social Services for Children and Youth in Harrisburg. School districts from across the county were calling her office and asking their caseworkers to conduct welfare checks on children who fell off their radar. Educators were concerned about students “who were not signing on, who weren’t on the Zoom calls, who hadn’t responded to a telephone call that a teacher had tried to make. Teachers were genuinely worried.”

Such unexplained student absences have popped up across the country, inundating school social workers as they go door-to-door in search of millions of students deemed “missing.” Officials say the blame falls on a range of factors exacerbated by the pandemic, from economic instability and homelessness to a lack of adequate internet access at home. But as schools work to improve student attendance, there’s also a growing concern that pandemic-era absences could wind up funneling children into the juvenile justice system and push parents into contentious custody battles.

Across the country, states maintain “compulsory education” laws that require children to attend school — rules that remain in full force even in communities where districts haven’t opened in person since March. Students who are habitually absent without a valid excuse are dubbed “truant,” a label that could carry significant consequences for children and their parents including fines, probation and, in some states, incarceration. Before the pandemic, thousands of students — disproportionately youth of color and those from low-income households — were sent to juvenile court for truancy each year.

Interviews with attorneys, court officials and child welfare workers suggest that as schools struggle to connect with students and promote attendance, many have largely avoided using a legal system that uses punitive measures to hold students and parents accountable for skipping class. But there are examples of families being called out by authorities, regardless of COVID-19. Across the country, reports have emerged of parents receiving letters from schools warning them that their children’s absences could lead to a hearing in truancy court. Though many juvenile courts have halted in-person hearings during the pandemic, some children have found themselves caught up in the system for racking up unexcused absences.

In several incidents, students have been held accountable for missing remote school even though a disability or health condition hindered their ability to participate online, said Maura McInerney, the legal director at the Education Law Center in Pennsylvania. In one instance, a student wasn’t logging into remote classes because he had epilepsy and the online activities caused seizures, said McInerney, an attorney whose group provides legal assistance to underserved children. Despite the student’s challenge, his case was referred to truancy court. In other cases, families have struggled to obtain doctor’s notes from an overtaxed health care system. In many districts across the country, a medical note is required to justify school absences.

In Pennsylvania, students are considered truant after three unexcused absences in a single academic year, at which point districts are supposed to send parents a letter warning them that they need to send their children to school. If a student becomes “habitually truant” with six or more unexcused absences, schools are required to craft plans to help overcome barriers to attendance. If unexcused absences continue, schools can refer cases to child protective services or court, which could prompt fines up to $750.

Schools and policymakers have good reason for focusing on student attendance: Chronic absenteeism is associated with a host of negative factors, including a heightened risk of dropping out of school and becoming involved in the criminal justice system. But a growing body of research has found that punitive measures for student absences only exacerbate the problem. One recent report by the nonprofit Council of State Governments Justice Center, for example, found that South Carolina students placed on probation for truancy issues wound up with even worse school attendance than they had before the courts got involved.

Such a reality worries Rey Saldaña, CEO of the nonprofit Communities in Schools, which deploys social workers to thousands of schools across the country to build relationships with vulnerable students and encourage consistent attendance. In many communities, schools are dealing with a tsunami of COVID-related absences and are struggling just trying to find students who haven’t shown up for class. They’re knocking on the doors of their last known home address only to find the student had moved elsewhere months earlier. For now, accountability hasn’t been their primary focus. But Saldaña’s concerned that could soon change.

“Pretty soon, I think that folks are going to start relying on the stick more than they have been,” he said. “That’ll be the completely wrong conversation to have because these students don’t need truancy court, they don’t need fines.” Rather than being willfully defiant, truant students are often suffering from homelessness or violence, he said.

“They need interventions, they don’t need to be seen by a judge.”

Terrified parents

Nonpunitive family interventions are key to resolving truancy cases in Pennsylvania’s Dauphin County before they make their way to court, said McClellan, whose agency has uncovered instances of child abuse while investigating truancy cases and “a drug and alcohol pandemic parallel to our [coronavirus] pandemic.” First, her agency tries to unearth the root causes of a student’s school attendance issues and connect their family with services. In Pennsylvania, student truancy issues can cause parents to lose custody of their children — a reality that McClellan said only materializes if caseworkers find issues like abuse or neglect.

Yet for some parents, child protective services’ outsized role in the state’s truancy matters during the pandemic has become a source of fear, said Christina Paternoster, project director at the PA Parent and Family Alliance, which provides support to the parents of children with mental health challenges.

“Children with mental health issues are reported to child services for truancy charges more often than you would imagine,” she said. “Rather than going in and being part of the solution, sometimes schools become part of the extra-stress problem.”

The issue is particularly pernicious in Pennsylvania’s rural enclaves, where many children lack adequate access to mental health care, she said. In one instance, one of her clients had no idea her 17-year-old son hadn’t logged onto his remote classes for two weeks until a CPS caseworker knocked on the family’s door. The teen had long struggled with depression, but refused to attend counseling and began to check out of school.

The mother was relieved initially, she said. She thought the caseworker was there to help, but was left instead with the impression that the official was simply conducting a welfare check on the child and to warn them that the teen’s attendance woes could come with stiff consequences.

“Families are terrified of being turned into truancy court,” Paternoster said. Before the ordeal, the mother had a positive relationship with her son’s school. “Not anymore. Now she’s terrified.”

Pennsylvania’s truancy rules used to be far harsher but were relaxed in 2017. The reforms came after a low-income mother of seven died in 2014 of natural causes in a jail cell while serving a 48-hour sentence for being unable to pay $2,000 in overdue truancy fines. During the pandemic, Pennsylvania compulsory education laws remain in full force.

‘Hamster in a wheel’

As schools across the country shuttered in March, an emergency order from South Carolina Gov. Henry McMaster pushed schools in his state into remote learning overnight — forcing families and educators into learning arrangements created on the fly.

As a result of the disruption, schools adopted “do no harm” grading policies that let students off the hook for their assignments and many students stopped showing up for remote learning. But this school year, state officials instructed schools to record daily attendance and maintain normal truancy rules while exhausting all efforts to engage students not showing up for class.

Still, interviews with multiple South Carolina court officials suggest that court involvement in school attendance matters during the pandemic is rare. Michael Mathison, the assistant public defender in Richland County, said that beginning in March, court petitions for truancy “went from being a low priority to being a nonpriority.” Last spring, truancy petitions in his county stopped entirely, he said, and his office has only been involved in a handful of cases this fall.

He said part of the shift comes down to workload: School social workers have been stretched thin trying to locate kids and make sure they “don’t slip off the face of the earth,” and referring absent youth to court moved to the backburner.

Judges also recognize the challenges families have experienced as a result of the pandemic, he said. Despite state education department guidance that maintains normal truancy rules, he said judges “are not going to be inclined to do much other than make sure that kids have access to materials and a district-issued device.”

Kendall Corley, Richland County’s assistant solicitor, is in charge of presenting — and essentially prosecuting — truancy cases in court. But this year she noticed, much to her chagrin, that districts weren’t willing to hold students accountable and some, in her opinion, had set the bar far too low for what constitutes attendance.

“It’s really crazy, this one particular school district, as long as the child logs on to the computer they’re considered present throughout the day,” she said. “It’s weird, they can log on and they can turn their camera off and go take a shower, go ride their bike, go do whatever. But as long as they’re logged on, they’re considered present.”

Corley has been working on truancy issues for nearly two decades and, in her view, students have rarely offered valid reasons for cutting class during that time. In the most egregious cases, South Carolina students can be sent to juvenile detention “where they live behind the fence for 45 days.”

“A lot of times — I hate to say this — but some kids just need a little kick in the ass and once they get behind a fence they’re like, ‘OK, this is serious, I need to start going to school,’” she told The 74.

And yet, notwithstanding her tough talk on enforcement and no-excuses stance, even Corley questions the effectiveness of legal intervention.

“I feel like a hamster in a wheel,” she said. “It breaks my heart for these kids who aren’t going to school whether it’s their choice or their parents not making them. But to be brought into a criminal system, you know, I don’t like that. To me, it’s just an educational issue.”

Instead of punishing families, she said districts would benefit if they were able to employ more social workers who build positive relationships with students and stress the importance of attending school.

Indeed, emerging evidence suggests that court involvement in school attendance matters is counterproductive, including the recent Council of State Governments Justice Center report focused on court-involved youth in South Carolina. It found that students who wound up in the juvenile justice system, including being put on probation for chronic absences, saw their attendance further deteriorate. On average, South Carolina students missed five more days of school after getting caught up in the court system than they did before.

Stigma could be one motivating factor, said report author Josh Weber, who directs the Council’s juvenile justice program. When students become subject to the juvenile justice system, probation officers conduct school checkups, a possible source of embarrassment. For older kids approaching the legal dropout age, their probation conditions often become overwhelming, he said, so “they just start to give up.”

Positive reinforcement

A shift has been brewing for years. Even before the pandemic, policymakers across the country have been working to shift truancy rules away from punishment and toward positive reinforcements. Such a reset has occurred even in states like Texas, long considered a truancy hardliner where students faced criminal prosecution and hefty fines for cutting class. Texas decriminalized truancy in 2015.

The movement to decriminalize truancy in Texas began a decade ago in San Antonio. Though the court system remains involved in enforcing school attendance, officials adopted a system that replaced criminal charges and fines with a contract in which students agree to attend school. Meanwhile, the court system deploys a team of case managers to check in on students and offers a range of programs to help youth overcome challenges that are at the heart of their missing school, including being the victim of violence or human trafficking. As a result, truancy cases dropped precipitously.

Eight years ago, more than 30,00 truancy cases clogged the San Antonio courts, said Victor Vinton, the juvenile case manager administrator at the city’s Municipal Court. For two years, the court system hasn’t filed a single truancy case against a student, he said — a trend that’s continued this year during the pandemic.

The difference, he said, comes down to positive reinforcement — a strategy attendance experts have encouraged districts across the country to deploy as they work to improve attendance this year. Among them is Hedy Chang, executive director and president of the nonprofit Attendance Works, who said the distinction between excused and unexcused absences is often arbitrary. For example, schools often saddle low-income students with unexcused absences even though they had to stay home to care for sick siblings or lacked adequate transportation. As many districts return to in-person learning, she said it’s important that they realize that many students will need extra help.

“What gets kids to school is you identify and understand what are the barriers,” and work to address them, she said. “Sometimes you can use the power of the court to message the importance of going to school, but a lot of times it’s better to explain how going to school everyday gets you to achieve your hopes and dreams. It’s not ‘Go to school or we’ll take you to court.’”

But for Weber, of the Council of State Governments, his report offers further evidence that school attendance policies shouldn’t be a matter of court intervention — period.

“Scaring kids, punishment-oriented interventions, all of those don’t work and generally tend to increase reoffending,” he said. Now, as the pandemic forces education leaders and courts to reconsider how they hold students accountable for school attendance, he hopes that many will open the window for additional reforms.

“I would hope that schools use this opportunity — no good crisis goes to waste — to really rethink some of these policies and what a different approach might look like.”

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This article was published in partnership with The 74. Sign up for The 74’s newsletter here.