Student Expulsions – What Proof Do You Need?

by Abby Busler, Attorney, Davis & Kuelthau and Bob Burns, Attorney, Davis & Kuelthau

As the 2018-2019 school year passes its midway point, many principals have addressed multiple disciplinary issues with students, some reaching the level of an expulsion hearing. Wisconsin public schools have a responsibility to ensure schools are safe places to learn. District principals and superintendents enforce school rules and administer student discipline. School Districts are granted their authority to expel a child through Wisconsin statute section 120.13(1)(c),stating a school board has the authority to expel a student:

whenever it finds the pupil guilty of repeated refusal or neglect to obey the rules, or finds that a pupil knowingly conveyed or caused to be conveyed any threat or false information concerning an attempt or alleged attempt being made or to be made to destroy any school property by means of explosives, or finds that the pupil engaged in conduct while at school or while under the supervision of a school authority which endangered the property, health or safety of others, or finds that a pupil while not at school or while not under the supervision of a school authority engaged in conduct which endangered the property, health or safety of others at school or under the supervision of a school authority or endangered the property, health or safety of any employee or school board member of the school district in which the pupil is enrolled, and is satisfied that the interest of the school demands the pupil's expulsion. In this subdivision, 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.

In a typical criminal proceeding, the state must establish guilt beyond a reasonable doubt. However, during an expulsion hearing, the administrator’s burden of proof is a “preponderance of evidence.” A preponderance of the evidence means that the accused student more likely than not committed the alleged offense. The administration need not prove the conduct beyond a reasonable doubt, thus creating a lower burden of proof than criminal proceedings. The Eastern District Court for Wisconsineven commented that, “while courts have not definitively declared the burden of proof in expulsion cases, the argument focuses on much lower standards such as more likely than not, preponderance of the evidence and clear and convincing.”

In addition to the expulsion hearing legal standard, principals must review the type of evidence and whether it is enough to prove the need for expulsion. For example, a written report of a law enforcement officer is admissible in an expulsion hearing without testimony by the officer, but may not be the sole evidence introduced. However, if the law enforcement officer was the only adult who witnessed the conduct, it would be necessary to have the officer testify if the student did not admit the conduct.

The court in Racine Unified School District, et al, v. Thompson,reviewed whether districts may rely on hearsay evidence in an expulsion hearing. An eleventh grader consented to a locker search and the administrator found a missing ring that had been stolen and was referred for an expulsion hearing. The student’s parents argued that there was no competent evidence in the record to support the expulsion. The Wisconsin Court of Appealsconfirmed that districts may rely on hearsay evidence in an expulsion hearing by stating:

We are persuaded, finally, that the hearsay statements from school teachers or staff members were admissible. We agree with the fifth circuit’s statement that a lay board cannot be expected to observe the niceties of the hearsay rule. Moreover, in the absence of an allegation of bias, we can conceive of no reason why school staff would fabricate or misrepresent statements of this sort. Such statements have, then, sufficient probative force upon which to base, in part, an expulsion.

The Wisconsin Court of Appeals set a precedent for evidentiary standards that are still used during current expulsion hearings. The Thompsondecision affirmed that board members are allowed to rely on hearsay statements as admissible evidence in determining whether a student should be expelled. Allowing board members to use their discretion to give weight to the evidence as they deem appropriate and judge the credibility of witnesses places administrators and principals in the position of presenting evidence to the board. Kyle J.W. by Viroqua Area Sch. Dist., (413) Apr. 27, 2000 (p. 7). The State Superintendent has repeatedly upheld that standard in recurring expulsion decision appeals, but has noted hearsay should not be the exclusive evidence. Sean H. by Milwaukee Pub. Sch. Dist., (106) Feb. 10, 1983 (p. 3); Kristen J.P. by Mukwonago Area Sch. Dist., (185) Feb. 21, 1992 (p. 3).

Administrators and principals are responsible for presenting the expulsion recommendation to the school board and explaining why the interests of the school demand expulsion. Administrators are required to present evidence demonstrating that the student committed the specific conduct. As confirmed by the State Superintendent in expulsion decision appeals, “expulsion hearings are not criminal proceedings. The exclusionary rule, which in criminal cases may demand the exclusion of illegally obtained evidence, does not apply to administrative expulsion hearings”. The following DPI Expulsion Appeal cases illustrate this point: Jeremy B. by Waukesha Sch. Dist., (395) Aug. 16, 1999 (p. 8); Julia M. by Hamilton Sch. Dist., (412) Apr. 11, 2000 (p. 4); D.S. by Merrill Area Sch. Dist., (682) May 16, 2011 (p. 4). During the expulsion hearing, an administrator may provide hearsay testimony.William S. by Suring Sch. Dist., (98) June 17, 1982 (pp. 2-3); Christopher W. by Tomah Area Sch. Dist., (247) Apr. 21, 1995 (p. 6). In addition, when administrators witness the student’s admission of the conduct during their investigation, that is “an admission against interest” and an exception to hearsay.

A school board has the power to base its decision to expel, in part, on the hearsay testimony of school officials when the school officials were charged with a duty to investigate alleged misconduct and such officials present testimony at the hearing as to statements made to them in the course of their investigation by students who witnessed the conduct. Kathleen W. by Tri-Cty. Area Sch. Dist., (130) May 10, 1985 (p. 9). Administrators that participate in the investigatory process may present evidence, documentation, and related information at the expulsion hearing. Administrators may provide copies of the exhibits and evidence prior to an expulsion hearing but are not required to do so. M.J. by Mount Horeb Sch. Dist. Bd. Of Educ., (170) Jan. 28, 2014; B.S. by Marshall Sch. Dist. Bd. Of Educ., (626) July 11, 2008.

Principals must keep in mind that it is their role to provide the evidence and arguments. The board then has discretion to give weight to that evidence as deemed appropriate and judge credibility of witnesses. The State Superintendent has repeatedly held that appeals concerning the sufficiency of the evidence are generally beyond the scope of review.

Important Takeaways:

School administrators should review their disciplinary policies to refresh specific protocols. During any investigation of student misconduct, principals should retain their investigatory notes in case of a potential expulsion hearing. Principals may provide direct testimony, referencing their specific investigation timeline and evidence collected. As noted above, hearsay testimony is allowed, but as a caution, the administrator that completed the investigation should be the individual testifying at the expulsion hearing. A student admission of the alleged conduct witnessed by an administrator or other adult is always helpful when presenting an expulsion hearing to the board for review. However, as shown through the expulsion decisions, it is not always required. Consistent application of those principles will assist principals in proper compliance with student misconduct and expulsion laws.

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This article was written by Attorneys Robert W. Burns and Abby S. Busler of Davis & Kuelthau, s.c. The views expressed herein are exclusively those of Mr. Burns and Ms. Busler. This article was designed to provide general authoritative information and commentary as a service to AWSA members. It should not be relied upon as legal advice. You are encouraged to contact your district legal counsel should you require legal advice regarding this topic. You may also direct your Level I call-in questions to Malina Piontek at 608-497-3037 or [email protected]