Expulsion Overview And Pointers For Administratorsby Doug Witte, Attorney, Boardman and Clark LLP With what seems to be a surge in expulsions this year, and the recent number of incidents following the Florida school shooting in February, now would be a good time for administrators to review their expulsion policy and procedures. In Wisconsin, the decision to expel a student is a policy decision that rests within the discretion of the school board. Generally, the Wisconsin Superintendent of Public Instruction and the courts will not second guess the board by substituting its judgment for that of the board on whether to expel, or the length of an expulsion. However, it is also clear that if districts do not follow the procedural requirements to the letter of the law, then DPI will likely reverse the expulsion if appealed. Investigating Alleged Misconduct When student misconduct occurs, school board policy or the school district’s student discipline code may provide specific direction on the manner in which the investigation must be conducted and may provide guidance as far as what is considered an expellable offense. Even conduct that occurred off school grounds or not under the supervision of a school authority can be an expellable offense if it endangers others at school. Frequently, the behavior for which administrators are considering expulsion of a student also involves possible criminal wrongdoing. There are three different ways for the district officials to conduct their investigation.
Regardless of the method chosen, the administrator should take his or her own notes during any interview. If the administrator participates in the interview of the student and any witnesses and takes notes, the administrator can testify at the expulsion hearing regarding statements made in the interviews. As soon as possible the administrator should get written statements from witnesses. If possible, obtain an admission from the student that he or she engaged in the alleged misconduct. If the student denies involvement in the misconduct, it will be necessary for the administration to prove the misconduct to the school board. Hearsay evidence is admissible at student expulsion hearings. Hearsay evidence in this context means statements by a person who does not testify at the expulsion hearing which are recited by someone who does testify at the expulsion hearing, for the purpose of proving the facts at issue. It is better to use non-hearsay evidence, if available. Having signed witness statements, even if names are redacted to protect student witnesses, is preferable to an administrator just reciting the interview notes. Suspension School administrators are limited to suspending a pupil for five (5) school days. The permissible reasons for suspending a student are set forth in Wis. Stat. § 120.13(1)(b). Prior to any suspension, the student must be advised of the reason for the proposed suspension. Typically, the administrator also provides the student with an opportunity to present his or her version of the events and evidence in defense. The parent or guardian of a suspended minor student must be given prompt notice of the suspension and the reason for the suspension. A student may be suspended for an additional ten (10) school days (for a total of 15 school days) if a notice of expulsion hearing has been sent by the fifth day of the suspension. The fifteen (15) school days of a suspension must be consecutive. A student has a right to appeal an administrative suspension. See Wis. Stat. § 120.13(1)(b)4. [Issues concerning special education students are generally beyond the scope of this article because they can be very complex and varied. However, please note that under state and federal law, if the student qualifies for services under the Individuals With Disabilities Act (IDEA) or Section 504 of the Rehabilitation Act, the student cannot be suspended for more than ten (10) school days prior to a board considering expulsion of the student. Grounds For An Expulsion Wis. Stat. § 120.13(1)(c) list the grounds on which a pupil a may be expelled:
The statute makes it clear that conduct that endangers a person or property includes making a threat to the health or safety of a person or making a threat to damage property. Sometimes school districts agree to hold an expulsion hearing in abeyance as part of a pre-expulsion agreement or behavioral contract. Notice Of Expulsion Hearing Wis. Stat. § 120.13(1)(c)4 contains thirteen specific items that must be included in the notice of hearing. Failure to include all of the required information can result in an expulsion being overturned on appeal. Common Errors In Notice Of Expulsion Hearing The particulars of the alleged conduct should include at a minimum, the date, place, and specific nature of the alleged misconduct. Stating a student made a threat to another student will likely not be sufficient. An example of a proper description, where the student is accused of bringing prescription drugs to school, giving some to a friend, and taking some of the pills on school grounds, should read as follows: On Friday, February 23, 2018, the student brought Vicodin to ____ High School, provided Vicodin to another student, and ingested a Vicodin tablet in the girls bathroom at the High School. Another common error is the failure to send the notice separately to both the student, and if the student is a minor, to the student’s parent(s) or guardian. Even though they may live at the same address, they must receive separate notices. The notices do not have to be sent by certified mail, but many districts do so for proof of receipt. Districts who use certified mail may wish to consider sending the expulsion notice by first class mail in addition to certified mail because some people don’t pick up certified mail. The important thing is the notice must be sent at least five (5) calendar days before the hearing. Hearing Considerations The administration acts as the prosecuting attorney. The student and family act as defendants. The board sits as the judge/jury. Some districts use an attorney to sit with the board to assist in running the meeting. The hearing is typically held in closed session (it must be held in closed if a student or parent requests it). The hearing must be properly noticed and proper notice of a closed meeting under Wis. Stat. § 19.85(1)(a) and (f) should be used to close the hearing. The administration needs to determine what evidence and witnesses it needs to prove its case. The burden is on the administration to prove the conduct by a preponderance of the evidence. Typical exhibits include:
It is important to have sufficient copies of each exhibit for all participants. There is no obligation for the district to provide the student or his or her parent(s)/guardian(s) with copies of the exhibits prior to the expulsion hearing, but the district may do so if they have them prepared. Witnesses may read from prepared statements. All witnesses are sworn to tell the truth and witnesses can be questioned/cross-examined by the family or board members. Recommendation After the administration and the student and his or her family have presented their cases regarding the expulsion to the board, the administration will make a recommendation regarding whether to expel, the length of the expulsion, and any opportunity for early readmission. Students may only be expelled until their twenty-first birthday. Conditional Early Reinstatement Under Wisconsin’s expulsion statute, the board may decide to impose an expulsion of a particular length, but allow the student to return earlier if the student meets certain conditions before returning to school and some conditions usually continue after return to school. The conditions must be related to the reason for the expulsion. Conditions can only be enforced during the term of the expulsion itself. Therefore, if the board wants the conditions to continue throughout the student’s remaining school career, it should make sure the expulsion period itself is for the student’s remaining school career. The school district administrator or designee decides whether a pupil has met the early reinstatement conditions before the student may be granted early reinstatement. Likewise, it is also the district administrator or designee who decides whether the student has violated conditions of early reinstatement. Conclusion As unpleasant as it is, most districts face the prospect of expelling a student at some point. By reviewing existing board policies and the Wisconsin expulsion statute the administration can make sure that any expulsion proceeding it goes forward with is done properly and will withstand any possible appeal. By following some of the pointers listed above, administrators should have an easier time in preparing and presenting their case. To the extent a particular case is more complicated, the district may wish to seek advice from their legal counsel. DISCLAIMER: Boardman & Clark LLP provides this material as information about legal issues and not to give legal advice. In addition, this material may quickly become outdated. Anyone referencing this material must update the information presented to ensure accuracy. The use of the materials does not establish an attorney-client relationship, and Boardman & Clark LLP recommends the use of legal counsel on specific matters.
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