Disciplinary Alternatives to Expulsion

In September, Kirk Strang presented a legal update at the 2023 CESA 10 Superintendent Meeting with a focus on six topics …

1. Pupil Discipline & Expulsion
2. Expulsion — the Unwritten Rules, Politics, & Stray Thoughts
3. Disciplinary Alternatives to Expulsion
4. Nonrenewal Teacher & Administrator Contracts
5. Gender Identity
6. Student Speech & Expression

This 6-part series tackles each of these topics one-by-one, in an effort to share each major talking point with more superintendents, teachers and administrators throughout the state of Wisconsin.

In Part 3 of the series we shift our attention to disciplinary alternatives to expulsion, with a focus on the following points:

1. Conditional Enrollment
2. Pre-expulsion Hearing/Contract
3. Stipulated Expulsion
4. Withdrawal Agreements

Let’s dive in  …

1. CONDITIONAL ENROLLMENT
   1. “Conditional enrollment” is the enrollment of an expelled pupil, in a school district other than the district (or out-of-state public school) that expelled the pupil, before the term of that pupil’s expulsion has expired. Wis. Stat. § 120.13(1)(h).
   2. A school board “may specify in a written order one or more enrollment conditions, instead of or in addition to the early reinstatement conditions, if any.” This mandates the following:
      1. The school board must issue the order. Do not simply assume that an administrator or the superintendent can complete the intake process.
      2. The school board must consider conditional enrollment in closed session (it is entirely appropriate to list Wis. Stat. § 118.125 concerning pupil records as part of the statutory grounds for going into closed session under the open meetings law).
   3. The school board can adopt conditions for early reinstatement that the school board that issued the order of expulsion adopted. However, the school board receiving the expelled student is not required to do so (indeed, the school board could reject the early reinstatement conditions and simply adopt the expulsion order and its full term).
   4. School districts need to have strong policy statements that reinforce their rights under the law, and do not — however unintentionally — waive their right to refuse enrollment or to implement conditions for early reinstatement. 

   5. An enrollment policy or protocol on this subject should expressly state that all initial pupil enrollment in the school district is subject to the restrictions and conditions concerning enrollment that have been established by law.

      Accordingly, all pupil enrollment is subject to review and action by the school board and/or administration before a final determination regarding a pupil’s enrollment can be made, and any corresponding order can be issued.

2. PRE-EXPULSION HEARING OR CONTRACT
   1. Eligibility:
      1. Standards/criteria.
      2. Avoid using academic progress, attendance and other discipline as standards.
      3. Uniformity.
   2. Procedure:
      1. School districts that use pre-expulsion hearings make them mandatory. The pupil and parents/guardians don’t have the option to disregard a request for the “hearing” (and could face a real expulsion hearing if they refused to meet).
      2. The meeting usually includes the superintendent and, possibly, a building principal.
   3. This is an alternative to a bona fide expulsion hearing. Make clear to the pupil and parents/guardians that this process reflects a decision to forego expulsion at this time, but that the behavior in question is an expellable offense.
   4. A pupil is entitled to an expulsion hearing before they are expelled; if the expulsion hearing is to be waived, this has to be addressed through a formal agreement. This means that a pre-expulsion hearing (or agreement) cannot simply provide that a pupil will be deemed expelled if they reoffend or engage in specified conduct; a hearing almost always will still have to be granted.
   5. A pre-expulsion hearing process must clearly identify what conditions the pupil must satisfy to remain in school and what behavior implicates those condition(s).
   6. Some pre-expulsion procedures provide that certain conduct that falls short of an expellable offense will also trigger the expulsion process. As far as we know, these procedures are lawful, since the statute doesn’t give school districts a time limit within which to commence expulsion proceedings.
      1. When a pre-expulsion hearing is used this way, however, any resulting expulsion proceeding is necessarily over the first offense (expulsion could not be based on the triggering event, if that event would not, in itself, be an expellable offense).
   7. The board should not be given the chance to consider any attendance, academic, or disciplinary history that occurred after the expellable offense took place.
   8. Essential Provisions of the contract:
      1. Pupil and parents recognize that this is an expellable offense (refer to statute).
      2. Pupil and parents understand that expulsion could be imposed because the legal requirements for expulsion are met:
         1. The student’s conduct is an expellable offense.
         2. The student’s offense satisfies one of the statutes.
         3. The interests of the school demand expulsion.
      3. The Administration advises that deferral of expulsion proceedings is available in these circumstances.
      4. Pupil and parents request deferral of expulsion proceedings and agree to the conditions established to secure the benefits of the deferral agreement.
      5. Pupil and parents waive legal objections/challenges to deferral and resumption of expulsion proceedings at a later time if the conditions identified are met.
      6. Pupil and parents understand that expulsion proceedings will be commenced (based on offense giving rise to the deferral agreement) if the infractions specified take place.
3. STIPULATED EXPULSION

(With and without conditions of early reinstatement)

• A stipulated expulsion is an expulsion order that is entered into before a school board or an independent hearing officer with the agreement and consent of both parties (Administration and pupil/parents). 
• A stipulated expulsion is lawful, but extra care must be taken to cut square corners on all constitutional and statutory issues.
  1. Contents of a stipulated expulsion:
     1. The pupil and parent(s)/guardian(s) acknowledge that the identified evidence (the Administration’s exhibit packet) is accurate, as well as true and correct. Accordingly, this packet is received into evidence by agreement of the parties.
     2. The pupil admits that the allegations against him/her in the Notice of Pupil Expulsion Hearing are true and correct, and admits to the charges against him/her.
     3. The pupil and parent(s)/guardian(s) agree that the pupil’s conduct violates (insert statutory prohibition, e.g., endangered the property, health, or safety of others at school).
     4. The pupil and parent(s)/guardian(s) agree that the board and/or IHO could reasonably find that the interests of the school demand the pupil’s expulsion.
     5. The pupil and parent(s)/guardian(s) agree that they waive their right to an expulsion hearing and that the IHO or school board can decide this matter based on the stipulation reached by the parties.

4. WITHDRAWAL AGREEMENTS

• Pupil agrees to withdraw from the district.

This brings us to the end of Part 3 of our series on Kirk’s legal update from the CESA 10 Superintendent Meeting. In our next installment of the series, we’ll cover nonrenewal teacher and administrator contracts.