When it comes to our work in general school law, there are many complex topics to tackle — including student discipline and expulsion.
As you may have guessed, this is the focus of our four-part series where we’ll be taking a deep dive into understanding and preparing for student discipline and expulsion from the superintendent’s perspective. This material was originally presented by Kirk Strang at the WASDA New Superintendents Academy in November of 2023.
The series focuses on the following:
- Part 1: Suspension
- Part 2: Expulsion
- Part 3: The Unwritten Rules, Politics, & Stray Thoughts Regarding Expulsion
- Part 4: A Checklist for an Expulsion Hearing
SUSPENSION
Grounds for suspension:
- Conduct prohibited by the expulsion statute (bomb threats, endangering property, health, and safety).
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Noncompliance with rules adopted under statutory authority to make rules for conduct and dress OR noncompliance with school board rules.
Note: this is a lesser offense compared to its closest expulsion counterpart; that provision permits expulsion whenever a school board finds the pupil “guilty of repeated refusal or neglect to obey the rules.” This standard requires: (1) repeat offenses, i.e., at least 2 infractions; and (2) proof that the pupil had knowledge of the rules in both cases.
In-school suspension v. out-of-school suspension considerations:
- Management/supervision of the student.
- Keeping up with academic coursework.
- Parental support/opposition.
Interaction with co-curricular code of conduct:
- Does it produce unintentional results in terms of, e.g., disqualification from participating in sports (and can the results that this generates survive trouble-shooting)?
- If so, make revisions before the case lands on your desk on a Thursday, one day before the big game!
Computation of time of suspension:
- Every day that a student is denied the right to a public education has to be accounted for.
- You can use partial days provided that the count is accurate and return at a specific point in the day is no more than 5 days (and is made clear in the suspension notice).
- However, note that return in the middle of a school day implicates transportation obligations.
Review of suspension decisions:
DPI/State Superintendent lacks the authority to review a school district’s suspension decisions. Consequently, a parent or pupil cannot threaten to take the school district to DPI because DPI does not have jurisdiction over such an “appeal.”
Prerequisites to Suspension:
- The pupil shall be advised of the reason(s) for the proposed suspension. If you just tell them they are suspended at the end of their interview without formalizing the suspension in this manner, the suspension may be overturned.
- The parent(s)/guardian(s) of a minor pupil shall be given prompt notice of the suspension and the reason(s) for the suspension. Make sure your suspension letter and/or form does this. Please note that if you have a policy on suspension, it will probably incorporate statutory requirements.
Wis. Stat. §120.13(1)(b)3.
Appeal procedures after suspension is imposed:
Wis. Stat. §120.13(1)(b)4 states:
“The suspended pupil or the pupil's parent or guardian may, within 5 school days following the commencement of the suspension, have a conference with the school district administrator or his or her designee who shall be someone other than a principal, administrator or teacher in the suspended pupil's school. If the school district administrator or his or her designee finds that the pupil was suspended unfairly or unjustly, or that the suspension was inappropriate, given the nature of the alleged offense, or that the pupil suffered undue consequences or penalties as a result of the suspension, reference to the suspension on the pupil's school record shall be expunged. The administrator, or the administrator's designee, shall make a finding within 15 days of the conference.”
Do this, don’t do that:
- Follow procedure. The suspension statute’s requirements have often been frayed by other values or considerations, e.g., law enforcement referral.
- A school district cannot base school discipline solely on law enforcement records. Consequently, if a suspension also involves a criminal offense (e.g., marijuana) and the school district releases the student into the hands of law enforcement for that reason, the district will still need to satisfy the provisions of the suspension statute before it can suspend the student.
- Do not promise, mention, or place anything on any form about the parents or pupil having a right to appeal to DPI. There is no such right of appeal.
- When you suspend a pupil and advise both the pupil and parent of the suspension, it will be presumed that you are done with your investigation. Accordingly, if you have more people to talk to, make sure to explain this in terms that are compatible with due process (e.g., that you are done investigating the suspension, but still investigating for purposes of expulsion hearing).
- Any form that you use and any letter you send should demonstrate that you’ve done what the suspension statute requires you to do.
Contents of the notice of suspension:
- Determine that the student is guilty of noncompliance with a school board rule, a rule adopted for the code of conduct, or the conduct charged (as with a bomb threat or endangering property, health, and safety).
- Determine that the pupil’s suspension is “reasonably justified.”
- Make sure that any forms used reflect the operative standards of the statute (verbatim). Do not create gaps between the law and your policy.
- “See attached” is not sufficient if it does not address these requirements (and is not appropriate, or may even be incriminating (for us) if it is a law enforcement record).
Conference requirement:
- A parent or guardian is entitled to a conference with the school district administrator, or his or her designee, within 5 days following the commencement of the suspension.
- Track days carefully and count days as the statute requires.
- Both parties have a time limit to meet. If any time limit must be waived, get it in writing and document it correctly.
Pupil schoolwork:
- Students must be given the chance to do their schoolwork and complete their tests. Wis. Stat. § 120.13(1)(b)5. In addition, this pupil right must be expressly identified in the school district’s attendance policy.
- Administrators (most notably, principals) need a system to make sure students get their work and get the chance to complete tests or make up work.
- Pupils’ completion of work is often information that the principal is not aware of at the expulsion hearing. If the school district seeks to expel, the principal should know and be able to report on the student getting their work and tests while the expulsion proceedings are pending.
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When all parties are assembled for the pupil expulsion hearing, parents/guardians often will raise the issue of the student not getting his/her homework or the chance to take tests.
Remember, no matter who is right about this, we almost always “lose” at least something on this issue; no one has time to start arguing about whether this is being done correctly, so we end up with unanswered, nagging questions that don’t help us in the board’s deliberations.
- Making sure the student gets his/her work is the easiest way to show that we know what the rules are and that we are following them.
- Make clear to your staff that there is a difference in this area between the technical requirements of law and our protocol for getting schoolwork and tests to students. We don’t want to hear anyone saying, “that stuff is sitting right here and all they have to do is pick it up.”
This brings us to the end of Part 1 of our series. In Part 2, we’ll continue our deep dive into student discipline and expulsion from the superintendent’s perspective, this time with a focus on expulsion.
Until then, here are a couple of articles that may be of interest: