Based on Kirk Strang’s presentation at the November 2023 WASDA New Superintendents Academy, this series addresses the complex topic of student discipline in an effort to help school districts more fully understand — and be prepared for — serious matters like suspension and expulsion.
Thus far in our series, we’ve covered the following:
In part four, we wrap things up with a useful checklist for an expulsion hearing, as well as some disciplinary alternatives.
Expulsion: A Checklist for Hearing
The following materials will help provide a complete record of relevant documents at many expulsion hearings:
Notice of Pupil Expulsion Hearing
- Proof of mailing and receipt of Notice of Pupil Expulsion Hearing (NOTE: Certified mail is not required, but many school districts will use this means of mailing).
- Notice of Suspension
- Incident report(s) from investigating Administration
- Evidence gathered by Administration (video, statements, emails, etc.)
- Student handbook and the provisions violated. Include proof of receipt/acknowledgment by students and parents/guardians.
- Board policies violated
- Attendance history / Disciplinary history / Academic history. (NOTE: These factors cannot be used to expel a student. These factors can be used to consider certain details related to the expulsion, such as length of expulsion, conditions for early reinstatement, and other relevant factors.)
Disciplinary Alternatives
ALTERNATIVE DISCIPLINE OPTIONS
Here’s an overview of the four disciplinary alternatives we’re covering in this article ...
- Conditional enrollment: 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.
- Pre-expulsion hearing/contract: Deferral of expulsion proceedings provided that conditions are met.
- Stipulated expulsion: An expulsion order that is entered into before a school board or an independent hearing officer with the agreement and consent of both parties.
- Withdrawal agreements (concerning residency): Pupil agrees to withdraw from the district.
1. CONDITIONAL ENROLLMENT
- “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).
- 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:
- The school board must issue the order. Do not simply assume that an administrator or the superintendent can complete the intake process.
- 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).
- 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).
- 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.
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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
- Eligibility:
- Standards/criteria.
- Avoid using academic progress, attendance, and other discipline as standards.
- Uniformity.
- Procedure:
- 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).
- The meeting usually includes the superintendent and, possibly, a building principal.
- 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.
- 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.
- 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).
- 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.
- 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).
- The board should not be given the chance to consider any attendance, academic, or disciplinary history that occurred after the expellable offense took place.
- Essential Provisions of the contract:
- Pupil and parents recognize that this is an expellable offense (refer to statute).
- Pupil and parents understand that expulsion could be imposed because the legal requirements for expulsion are met:
- The student’s conduct is an expellable offense.
- The student’s offense satisfies one of the statutes.
- The interests of the school demand expulsion.
- The Administration advises that deferral of expulsion proceedings is available in these circumstances.
- Pupil and parents request deferral of expulsion proceedings and agree to the conditions established to secure the benefits of the deferral agreement.
- Pupil and parents waive legal objections/challenges to deferral and resumption of expulsion proceedings at a later time if the conditions identified are met.
- 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.
- Contents of a stipulated expulsion:
- 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.
- 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.
- 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).
- 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.
- 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. RESIDENCY
In some pupil expulsion situations, it will become apparent that a student is not a resident of the district. The district may need to consider taking action to revoke enrollment in addition to considering expulsion.
- DPI does not have jurisdiction over a school district/student residency dispute.
- Many students/parents who try to game the system with questionable residency manipulation become more interested in returning to their district of residence when they learn that they would have to go to court to fight out a residency dispute and that they are not likely to get their attorney fees reimbursed, even if they win.
This brings us to the conclusion of our series on student discipline and expulsion from the superintendent’s perspective.
In our next series, we’ll share Kirk’s presentation — Navigating Teacher Contracts and Contract Renewal — which was presented at the WASDA New Superintendents Academy in February.
Until then, here are a couple of articles that may be of interest: