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Michael Dorfman
BY Michael Dorfman
7,571 views

Is It Legal To Keep My Child with Special Needs Home From School?

A majority of parents with students in special education programs (or with IEPs or 504s) have felt the desire to, or actually kept their child out of school for an extended period of time (from a couple of days to an infinite amount of time) for reasons such as an issue with a teacher, testing, bullying by other students, certain school rules and/or placement decision disagreements, just to name a few.

Many of my clients have adamantly informed me that their child will not return to the school until the issue has been resolved to their satisfaction.

Obviously, no parent wants to send their child (neurotypical or with learning or disability issues) to a place such as a school, where they are being bullied on a daily basis, or they have been placed in a class or program that is above or below their performance abilities. This is understood and I will be sympathetic to their plight.

The Hard Truth

However, the parent(s) are often shocked when I inform he/she that they are in violation of state truancy laws when they keep their children home from school because of a dispute with the school administration.

Truant officers (now called attendance officers) still exist, and are often employed by the intermediate school district, to be used by the member school district when a child is out of school for an extended period of time without meeting a statutory exemption.

Homeschooling vs. Just Staying at Home

There is a difference between homeschooling one’s child and just keeping one’s child at home. This is the number one question I am often asked during these types of disputes.

In most states, a parent or guardian is required to send a child between the ages of 6-16 for compulsory education at the school district in which they reside during the entire school year.

A parent or guardian may legally also opt to send their child to either a state-approved, non-public school, such as a parochial school or non-parochial private school or educate the child at home in an organized educational program.

These are typically the three statutory options a parent has to educate their child: public school, private school or an organized, educational program within the home.

Failure to Comply is Not an Option

In most states, the attendance officer has the powers of a deputy sheriff within the school district and performs official duties such as pursuing cases of nonattendance.

Once an attendance officer has been informed of a student’s nonattendance, the attendance officer will either in person, or by certified mail, give written notice that the absent student is required to appear at school on the next regular school day and to continue regular and consecutive attendance.

If a parent fails to comply with the notice, the attendance officer shall make a complaint against the individual in the proper court for refusal or neglect to send the child to school. The court will then issue a warrant for the parent and legal proceedings will ensue.

In the state of Michigan, a parent who has failed to comply with the compulsory attendance statute is guilty of a misdemeanor. In other states, the punishment may be less or more severe.

Exceptions

The only other exception in most states where a child is allowed to not attend school without penalty is when the child qualifies for homebound and hospitalized services.

Homebound and hospitalized service is provided to pupils unable to attend school because of a medical condition. The provider brings the curriculum from the teacher of record to pupils in the home or in the hospital to help the pupils keep up with their studies.

Public school pupils certified by their attending physician or a hospital as having a medical condition that requires the pupil to be homebound or hospitalized for a period longer than five school days are eligible.

Parents must notify the school district their child attends when the pupil is homebound or when plans are being made for a future hospitalization that will result in the loss of more than five consecutive school days.

In Michigan, students receiving the service under the special education rules receive a minimum of two nonconsecutive hours of instruction per week. The two one-hour sessions for a student with an IEP may be on the same day; however, there must be an adequate break between the two sessions.

With special education students, the qualifying medical issues tend to be psychological. Examples are where medically-certified anxiety is heightened and not responding to medication or other mental disorders or other mental health issues have been exacerbated by an event.

Medical documentation is important and schools have a right to review the medical documentation and ultimately hold an IEP with the option to decide the student is ready to attend their program at the school.

Moral of the Story

Children belong in school and thrive best when interacting with their peers and learning from specially trained instructors. Don’t visit your animosity towards the administration upon your child. Meaning, your child is not a pawn.

There will be times when your child won’t get on the bus or refuses to attend school. If this is a repetitive behavior, work jointly with the school to determine why your child is exhibiting such a reluctance.

If the issue is bullying, there are state laws to address this. If you ultimately decide to homeschool your child, you must dis-enroll him from the district and you will receive none of the services that you would be entitled to under IDEA.

Think before keeping your child home for a long period of time. If it’s psychological or medical, get the documentation, then work with the school and the specialists on a plan of re-introduction to the school.

However, nothing the school does or says is worth you having a criminal record.

Michael Dorfman

Written on February 4, 2016 by:

Michael R. Dorfman is an attorney and partner at Nykanen Dorfman, PLLC in Farmington Hills, Michigan.  In his special education law practice, Michael represents students and their families when there is a conflict with the school district or when an appropriate education is not being provided.
  • Beth T.

    I totally disagree with your statement “Children belong in school and thrive best when interacting with their peers and learning from specially trained instructors”. Every child is different and will learn and thrive in an environment that accommodates their preferred learning style as opposed to the “cookie cutter” approach you see in most public schools. Have you walked down the hall of an elementary school lately and see how all the art work pictures all look alike? They do not allow children to express themselves freely, they must conform to the format the teacher presents! I have home-schooled my ASD daughter for over 3 years now and she has progressed more in my home than she ever did in school. She belongs to a Social Skills Group and still gets exposed to the community in multiple ways. Children can and do thrive outside of the classroom!!!

    • Eve N.

      I agree with Beth T. As a counselor aiding transitioning high school students with various disabilities, I have heard how glad they are to be “getting out” versus focusing on referring to completion of secondary education as “GRADUATING!” I know of their struggles as being label “Special Education” or needing to leave their mainstreamed classroom for “special services” during the school day. The result is: Bullying, isolation, boredom, frustration – low self-esteem and, triggering of “problem behaviors”, as deemed by teachers. Most of these students are not happy attending public or even, in some cases, private school. Their parents are complying with the laws and regulations. Sure thing – no parent wants to be deemed as a lawbreaker for keeping their child out of school! And, yet, who wins in the end? Unhappy student – unhappy, stressed out parents… Children with special needs regarding educational services deserve better – and, options needs to be discussed, as not all parents are capable of being successful home-schoolers. I ache for how unhappy many special needs children are regarding school. There is no “interaction with peers” – and, where are these “specially trained instructors”? Most Special Education teachers I have worked with are overwhelmed, burned out and do not have the proper supervision – as most are newbie teachers. The few that are competent – usually, are prepping for retirement or move into school administration positions – fighting for better services for Special Needs Students. Somehow their intentions get misguided… or, possibly derailed.
      Sorry, but the rosy picture painted in the article, just doesn’t meet with what I’ve experienced as the norm in the school districts I have worked within which are in low income suburban areas.

      • Sarah Goodwich

        I was severely bullied in school, and now I’m permanently disabled as a result, since I had severe depression– but I wasn’t ALLOWED to be depressed, because I didn’t jump through the hoops for the state, and I wound up on child-prison because of it, without trial.
        And yes, my parents went through the system to get something done… it didn’t work, but I was fine staying at home and learning; but because of fascist-laws like this, my refusal to subject myself to TORTURE was labeled as “mental illness,” and I was subjected to political abuse of psychiatry, with no legal process.

        So when I read articles like this, I just want to smash my laptop.

  • Sasha RL

    I would like to make a career change from traditional public school (20+ years experience with diverse learners) to something non-traditional. I am certified in elementary ed, fine arts, learning disabilities, and ESL. For those of you that homeschool your children, can you help direct me to anyone who might help me find a way to work with children who are homeschooled? My linkedin address is https://www.linkedin.com/in/maestrasasha. I am open to suggestions and leads to render my knowledge, experience, and expertise in all aspects – starting from organizational management, to policy making, to supporting classroom teachers, to transforming instruction through joyful, engaging and meaningful learning.

  • Sarah Goodwich

    Michael Dorfman is clearly a bully who clearly enjoys using the law to psychologically torture children into suicide.
    Michael Dorfman, I hope you’re happy with the blood and tears of children on your hands.
    The state has no business dictating to children where they “belong,” that’s called fascism– and this is America, you clearly flunked Constitutional law.

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