The Latest on Pupil Suspension & Expulsion: Expulsion

In Part 1 of this series covering Kirk’s presentation from the WASSA Fall Workshop, The Latest on Pupil Suspension and Expulsion, we focused on pupil discipline and suspension. In Part 2, we’re shifting our attention to expulsion, a topic that’s always of import to school districts.

Here’s a snapshot of the entire series:

• Part 1: Suspension
• Part 2: Expulsion
• Part 3: Unwritten Rules, Politics & Stray Thoughts on Expulsion
• Part 4: Disciplinary Alternatives to Expulsion

Let’s dive into Part 1 …

GROUNDS FOR EXPULSION

1. Repeated refusal or neglect to obey the rules.
2. Bomb threats.
3. Endangering property, health, or safety of others while at school.
4. Endangering property, health, or safety of others while not at school, but while others are at school.
5. Endangering property, health, or safety of a school board member or an employee.
6. A student that is 16 years old, or older, repeatedly engaged in conduct that disrupted the ability of school authorities to maintain order or an educational atmosphere at school (or at an activity), where the conduct does not qualify for expulsion under certain other provisions of the expulsion statute.

7. Possession of a firearm while at school or while under the supervision of a school authority.

   Note: The school board must hold an expulsion hearing in this case and must expel the pupil for not less than one year if it finds the pupil possessed a firearm while at school or while under the supervision of a school authority.

NOTICE OF PUPIL EXPULSION HEARING

Written notice of an expulsion hearing must be provided to the pupil at least 5 days before the hearing. The notice must state all of the following:

1. The specific grounds and the particulars of the pupil's alleged conduct upon which the expulsion proceeding is based.
2. The time and place of the hearing.
3. That the hearing may result in the pupil's expulsion.
4. That, upon request of the pupil or a minor pupil’s parent(s)/guardian(s), the hearing shall be closed.
5. That the pupil or a minor pupil’s parent(s)/guardian(s) may be represented at the hearing by counsel.
6. That the school board shall keep written minutes of the hearing.
7. That the school district clerk shall mail a copy of the expulsion order to the pupil and the pupil’s parent(s)/guardian(s), if the pupil is a minor.
8. That the expelled pupil or a minor pupil's parent(s)/guardian(s) may appeal the school board's decision to DPI.
9. That if the school board's decision is appealed to DPI, within 60 days of receiving the appeal, DPI shall review the decision and approve, reverse, or modify the decision.
10. That the decision of the school board shall be enforced while DPI reviews the decision.
11. That an appeal from DPI’s decision may be taken, within 30 days, to the circuit court for the county in which the school is located.
12. That the state statutes related to pupil expulsion are §§ 119.25 and 120.13(1).

Don’t forget the date! 
The state superintendent has repeatedly determined that for most notices of pupil expulsion hearing an approximate date of when relevant events occurred is required for due process.

EXTENSION OF SUSPENSION

1. A student’s suspension can be extended for up to a total of 15 consecutive school days “if a notice of expulsion hearing has been sent.” Wis. Stat. § 120.13(1)(b)2.
2. A special education student’s suspension may generally only be extended for up to a total of 10 consecutive school days.

Pupil Discipline: Special ED

MANIFESTATION DETERMINATION

1. A student with a disability may not be expelled without a manifestation determination meeting.
   1. The IEP team must convene and make a determination within 10 school days of the decision to recommend expulsion.
   2. The IEP team must determine whether the student’s behavior was a manifestation of his/her disability. If so, the student may generally not be expelled for that conduct. Behavior is determined to be a manifestation of a student’s disability if:
      1. The conduct in question was caused by or had a direct and substantial relationship to the student’s disability; or
      2. The conduct in question was a direct result of the LEA’s failure to implement the student’s individualized education program (IEP).
2. When there are multiple incidents of misconduct at issue, the IEP team must make a determination regarding each individual incident.

3. The 10-day timeline to hold the meeting may not be extended.

   If the pupil’s parent is unable to attend, the meeting may go forward without them. However, the LEA must be able to show that they made at least three reasonable attempts to schedule the meeting at a date/time when the parent could attend.

4. If the IEP team determines that the student’s conduct was a manifestation of his/her disability, he/she may generally not be expelled.

   However, the student may still be removed from the school to an Interim Alternative Educational Setting (IAES), for no more than 45 days, if the student:

   1. Carried or possessed a weapon at school, on school premises, to or at a school function;
   2. Knowingly possessed or used illegal drugs while at school, on school premises, or at a school function;
   3. Sold or solicited the sale of a controlled substance, while at school, on school premises, or at a school function; or
   4. Inflicted serious bodily injury upon another person while at school, on school premises, or at a school function.

ACCESS TO SCHOOL GROUNDS

1. After a student is expelled, they can be banned from school grounds. 

   1. In 2012, the Seventh Circuit Court of Appeals held that an expelled student’s ban from all activities on school grounds did not violate any previously recognized Wisconsin state law. The expelled student, Derek Hannemann, had a history of disruptive, violent behavior while on school grounds.

      The Court concluded that the District had the authority to ban Hannemann, because, after his expulsion, he was merely a member of the public. A “school district retains the discretion to bar members of the public from school property.”
      — Hannemann v. S. Door Cnty. Sch. Dist., 673 F.3d 746 (7th Cir. 2012).

   2. A school board is not required to include this provision in its Order of Expulsion. The board or administration may separately give written notice to a former student that they have been banned from school grounds.

EXPULSION VARIANTS

1. Permanent removal from school.
2. Measured penalty (for example, a period of removal, followed by a return to school and an opportunity to graduate).
3. Can be a vehicle for conditions for early reinstatement as part of an order of expulsion.

CONDITIONAL EARLY REINSTATEMENT

Discussed primarily in alternative means of securing disciplinary or behavioral outcomes:

1. A school board may specify one or more early reinstatement conditions in the expulsion order.
2. Common conditions:
   1. Counseling relevant to the behavior resulting in expulsion.
   2. AODA interventions where appropriate.
   3. Internal counseling check-ins.
   4. Opportunity for expungement of expulsion from the student’s records.
3. Conditions must be related to the behavior/infraction.
4. Conditional reinstatement may not be revoked if the student is disabled and the violation of the condition is found to be a manifestation of the student’s disability.
5. Conditions set forth by a school board are final and not subject to appeal.

6. The District Administrator or his/her designee has the authority to determine when the conditions for early reinstatement have been met and grant early reinstatement.

   NOTE: The District Administrator’s designee may not be a principal, administrator, or teacher in the pupil’s school.

7. Revocation of early reinstatement is an administrative process. 
   1. If a student violates a condition for early reinstatement, the District Administrator (or his/her designee) may revoke the early reinstatement. Before doing so, the administrator must:
      1. Advise the student of the reason for the proposed revocation;
      2. Provide the student an opportunity to present an explanation of the alleged violation;
      3. Determine whether the student violated the condition and whether revocation is appropriate.
   2. If he/she determines that revocation is appropriate, the administrator must give “prompt written notice of the revocation and the reason for the revocation, including the early reinstatement condition violated,” to the pupil and/or guardian(s). Wis. Stat. 120.13(1)(h)4.
   3. The student may appeal the revocation, within 5 days of the Administrator's decision, to the District Administrator or his/her designee. The District Administrator’s decision is final.

Next up, we focus our attention on the unwritten rules and policies of expulsion, as well as some of Kirk’s stray thoughts.

Additional articles that may be of interest:

• Legal Update on Employee Performance Standards in Wisconsin School Districts: Hot Tips #1 & 2
• Addressing Practitioner HR Issues, Part 1: The Teacher Contract