You Can Call Me on My (Cell) Phone: Hotline Help Available for Members!

By: Malina Piontek, Attorney, AWSA Retained Legal Counsel

I may not be Drake, but I can offer you some legal assistance if you call me on the AWSA Hotline! Did you know that through your AWSA membership, legal guidance and resources are just a call or an email away? AWSA understands that educational leaders need to stay on the right side of a variety of local, state and federal laws and regulations which is why it offers a means to provide you with help when job-related legal issues arise. 

Level 1 Legal Support

Level 1 legal support services - referred to as the Hotline - includes calling me at 608-497-3037 or emailing me at or [email protected]. I am happy to assist you by providing guidance and resources to help you with your pressing, or not so pressing, job-related legal questions. The Hotline is generally available to AWSA members between the hours of 8:30 am and 5:00 pm, Monday through Friday. *Please note the hotline phone number is a landline and cannot accept text messages.

The Hotline is a resource for member principals to get questions answered by a licensed, experienced attorney in a quick, efficient manner. AWSA provides the Hotline strictly as a service to its members; therefore, communications with me through the Hotline do not create, and are not protected by, attorney-client privilege. I cannot give you legal advice for your school or for your personal job-related legal issue. In short, the Hotline is not a substitute for the use of district legal counsel for school-related legal issues; however; I can help you identify legal issues and related resources to help you assess the situation. 

The most frequent question I ask members is: What is your local board policy on the subject matter? Local board policies and associated material (e.g., handbooks, rules, procedures) will more often than not be the starting point for our conversation about any legal situation arising in your work. I highly recommend that you start familiarizing with local policies so that we can hit the ground running when you use the Hotline. 

I will also help you by identifying state and federal statutes and codes that may apply to your question, and  other reliable sources of legal information such as the federal and state education departments (like the US Department of Education and Wisconsin’s DPI), state and federal departments of justice,  and the Wisconsin Association of School Boards (WASB).

Subject Matter of Legal Inquiries

If you’ve heard me speak at an AWSA conference, you’ve heard my motto about using the Hotline: I’m here to help, and no question is a dumb question! Members’ inquiries cover a wide variety of legal topics, with everything from student suspension and expulsion to transportation of students with IEPs, to student pronouns and names, and how to conduct a personnel investigation. 

Topics tend to be cyclical in nature with many calls in late summer about student enrollment, McKinney-Vento homelessness issues, student names, student pronouns and family custody matters. The December/January timeframe brings a lot of questions about members’ contracts and the renewal/nonrenewal process. With spring comes questions about field trips, dress codes, graduation and teacher contract nonrenewal.

Individual contract support is also part of your benefits. For example, I can review your individual contract, or an offer for a new contract if you are looking to move to another district. AWSA’s Executive Director Jim Lynch is also always happy to assist members with their contracts. 

Here is a sampling of some recent Hotline questions and answers:

• A student was placed at grandma’s house a year ago due to mom's medical condition. Grandma does not live in the district. Mom recently died, but grandma is not well enough health wise to care for the student. This summer, the student moved in with their aunt and uncle. Where should the student be enrolled? If the student is living with their aunt and uncle for reasons other than “having the privileges of the public school” (which is clearly the case in this scenario) the student must be enrolled in the district in which they reside. The Wisconsin Constitution Article X, sec. 3 guarantees a free education for children ages 4 through 20 who have not graduated from high school. The requirement of the local school district to provide free public elementary and secondary education to resident children is stated in Wis. Stat. sec. 121.77(1), as follows: “Every elementary school and high school shall be free to all pupils who reside in the district.” For school attendance purposes, a child is a resident of the district where he or she lives, regardless of where his or her parent lives, unless he is there “for the sole purpose of having the privileges of the public school of the district to which he may be transferred.” State Ex Rel. School-District Board V. Thayer, State Superintendent, 74 Wis. 48, 41 N.W. 1014, 1017 (1889). This rule has been consistently followed by the courts.

• A student only attended 17 days of school last year in seventh grade. That school was intending to advance her to eighth grade. The student’s new guardians want her to be placed in seventh grade again. The principal agrees with the school staff that the student should be advanced to eighth grade. Do they have to follow the new guardians’ wishes?  The principal should look at school board policies regarding placement of students. Most policies delegate authority to school staff, most commonly to the principal, to determine the student’s placement. Here is an example of such a policy:

The Board of Education directs that the placement of students to schools within this District be consistent with the best interests of students and the best use of the resources of this District.  . . . The assignment of students to specific classes is the responsibility of the school administrator, who shall assign to the grade and class where it appears the student can be most successful. As necessary, assessments, trial placements, and reassignments may be initiated by the school administrator.  

In short, placement decisions are left to your discretion as a principal, with input from families - but with no obligation to do what the family wants if it is not consistent with your perspective as an educator and principal.

• I am a principal considering applying for an open position while already under contract. I would like to know more about the legal implications before applying. What are some possible outcomes, should I resign from my current position and the school year is already underway?

1. What information should be included in a letter of resignation, should I be given a job offer? It is best practice to submit a conditional letter of resignation if you do not have Board approval from your new district. Wording could be “I am tendering my resignation effective date, conditioned upon approval of a contract with a new school board on date.” 

2. What penalties might I expect from my current employer for breaking my contract? Penalties are usually limited to liquidated damages. You will want to review your contract to see what you have agreed to as the amount to pay in liquidated damages should you break your contract. Other financial considerations are a) how many days have you worked under your current contract? b) how many days have you been paid under your current contract? c) how many vacation days have you used under your current contract? If you have been paid for more days that you have worked, you will likely owe your current district for the amount you have been paid but have not provided services. Likewise, if you have used more vacation days than have accrued to you, you will likely owe your current district for the days you have used but that have not accrued to you.

3. What requests might I make during my negotiation with the new employer?  Due to the shortage of educators, it is becoming more common for the new employer to pay for liquidated damages under the contract you are breaking. Thus, you may want to ask your new employer if they are willing to pay liquidated damages should your current district not waive them.

4. Are any of my licenses in jeopardy, should I break a contract at this time of year? There are no license issues for breaking a contract mid-term. 

• A student wants to open enroll to our district. However, the student was truant from their home school district last year. Can we deny the open enrollment on the basis of the student's truancy last year? No, a nonresident school district may deny a pupil's open enrollment if that pupil was habitually truant from that district in any semester of the current or preceding school year. The nonresident district may not deny open enrollment based on the pupil's truancy from another school district. “Habitual truant” means a pupil who is absent from school without an acceptable excuse for part or all of five or more school days on which school is held during a school semester.  Further, if a school board wishes to terminate open enrollment for habitual truants, the board must amend its open enrollment policy to include this provision.  So be sure to look at your local policies to ensure that termination of open enrollment for habitual truancy is permitted. 

In general, if the student open enrolls and then is habitually truant, the non-resident school district may terminate the open enrollment. Consistent with state statute, PI 36.09(2)(a)1. provides that before a nonresident school board may prohibit a pupil's attendance in a succeeding semester or school year under s. 118.51 (11), of the Wisconsin Statutes, the nonresident school board shall provide the following notifications to the parent and the pupil when the pupil enrolls in the nonresident school district:

If these questions have prompted you to think of pending issues at your school, feel free to give me a call or shoot me an email. There is no limit to the number of times that you can access the Hotline, so please avail yourselves of this service!

This article was prepared by Attorney Malina Piontek, AWSA’s Level I Legal Services Provider. You may direct your Level I call-in questions to Malina at 608-497-3037 or email her at [email protected]. This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members. It should not be relied upon as legal advice.