Update 8:15 pm: Judge James Robeson heard an hour and a half of arguments and a fraction of the expected testimony Wednesday before declaring that the trial could not be concluded in one session. It will resume May 3. Read a full account of the courtroom proceedings here.

Original post:

A Loudoun County couple whose children have frequently been late to school is headed to court Wednesday to be tried for a crime they contend doesn’t exist under Virginia law: too many tardies.

Amy and Mark Denicore’s three elementary-school children were late about 30 times between September and mid-January, or about once every three school days. Most of their tardies were for less than three minutes.

The Denicore parents are each charged with three Class 3 misdemeanors and face total fines of up to $3,000. Their case, widely covered in the media, has sparked debate about whether the school system is overreacting to a minor offense or rightly clamping down on a habit that’s disruptive to teachers and other students.

Similar trials in Loudoun’s juvenile and domestic relations court usually last no longer than 15 minutes, a judge said during the Denicores’ arraignment last month. But this appears to be shaping up to be a longer affair, with neither the defendants and nor the prosecutors showing signs of backing down.

Both sides have filed motions for the judge to consider Wednesday.

The Commonwealth’s Attorney has asked the judge to amend the allegations against the Denicores to include not just tardies from this school year, but also more than 30 tardies per child from the second semester of the 2010-11 school year — and absences from both years (about 13 for each child, including a five-day family vacation last October).

The Denicores, meanwhile, have subpoenaed their children’s teachers and principal to testify. They have also requested that the case be tossed out.

They argue that whatever one’s view of their parenting, the county has no authority under Virginia law to convict them of a crime.

They have been charged under the state’s compulsory education law, §22.1-254, which says parents have to send their kids to school “for the same number of days and hours per day” as public schools are in session.

The Denicore children arriving on time at Waterford Elementary School on a February morning. (Astrid Riecken/FOR THE WASHINGTON POST)

“A person of ordinary intelligence would have no idea when they’re committing a crime,” Mark Denicore said in an interview. “If you miss one hour of school? One minute?”

Another statute under which the Denicores are not charged, §22.1-258, clearly spells out how school systems must proceed in the case of chronic absences when there is “no indication that the pupil’s parent is aware of and supports the pupil’s absence.” It also does not address tardiness.

In recent years, some national advocacy groups have pushed school systems and states to pay more attention to student attendance, pointing to chronic absence and excessive tardiness as problems that keep children from learning.

In 2006, the Virginia General Assembly considered legislation that would have explicitly directed schools and courts to intervene when students are chronically tardy.

The bill, which directed the state board of education to come up with a definition for “chronically tardy,” died in a House committee.