Understanding & Preparing for Student Discipline & Expulsion from a Superintendent’s Perspective

Suspension and expulsion are serious, complex matters that weigh heavy on a superintendent’s mind — which is why Kirk Strang spoke at length on the subject at the October 2022 WASDA New Superintendents Academy.

The importance of this information bears repeating here, in an effort to support new and seasoned superintendents, alike.

In Part one of the series, we’ll be covering traditional disciplinary action, specifically:

• Suspension
• Expulsion
• Tips for superintendents on these matters,
• As well as a checklist for a suspension or expulsion hearing.

In Part 2, we’ll be focusing on disciplinary alternatives, including:

• Conditional enrollment
• Pre-expulsion hearing or contract
• Stipulated expulsion
• Withdrawal agreements
• Residency

Let’s get started with …

Traditional Disciplinary Action: Suspension 

The suspension statute: Wis. Stat. §120.13(1)(b)2 and 2m:

“2. The school district administrator or any principal or teacher designated by the school district administrator may suspend a pupil for not more than 5 school days or, if a notice of expulsion hearing has been sent under par. (c) 4. or (e) 4. or s. 119.25(2)(c) for not more than a total of 15 consecutive school days for any of the following reasons:

1. Noncompliance with rules adopted under subd. 1. or school board rules.
2. Knowingly conveying any threat or false information concerning an attempt or alleged attempt being made or to be made to destroy any school property by means of explosives.
3. Conduct by the pupil while at school or while under the supervision of a school authority that endangers the property, health or safety of others.
4. Conduct while not at school or while not under the supervision of a school authority that endangers the property, health or safety of others at school or under the supervision of a school authority or endangers the property, health or safety of any employee or school board member of the school district in which the pupil is enrolled.”

The suspension statute, continued:
“2m. In subd. 2. c. and d., conduct that endangers a person or property includes making a threat to the health or safety of a person or making a threat to damage property.”

In school suspension v. out of school suspension:

1. Management/supervision of student.
2. Keeping up with academic coursework.
3. Parental support/opposition.

Grounds for suspension:

1. Conduct prohibited by the expulsion statute (bomb threats, property, health, and safety).
2. Noncompliance with rules adopted under statutory authority to make rules for conduct and dress.
3. 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 repeat offenses, i.e., at least 2 infractions.

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:

1. Every day that a student is denied the right to a public education has to be accounted for.
2. 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). 
   
   1. However, note that return in the middle of a school day implicates transportation obligations.

Review of Suspension Decisions:

1. 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.”
2. Students’ right to “take any quarterly, semester or grading period examinations or to complete course work missed during the suspension period, as provided in the attendance policy established under s. 118.16(4)(a).”

Prerequisites to Suspension:

• Wis. Stat. §120.13(1)(b)3 states:
  “Prior to any suspension, the pupil shall be advised of the reason for the proposed suspension. The pupil may be suspended if it is determined that the pupil is guilty of noncompliance with a school board rule or a rule adopted under subd. 1., or of the conduct charged, and that the pupil's suspension is reasonably justified. The parent or guardian of a suspended minor pupil shall be given prompt notice of the suspension and the reason for the suspension.”

Legal requirements and 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:

1. Follow procedure. The suspension statute’s requirements have often been frayed by other values or considerations, e.g., law enforcement referral.
2. 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.
3. 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.
4. 4.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).
5. Any form that you use and any letter you send should demonstrate that you’ve done what the suspension statute requires you to do.
6. A pupil must be told of their suspension and the reason(s) for the suspension “prior to any 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.
7. A parent or guardian of a suspended pupil “shall be given prompt notice of the suspension and the reason 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

Contents of the notice of suspension:

1. 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).
2. Determine that the pupil’s suspension is “reasonably justified.”
3. Make sure that any forms used reflect the operative standards of the statute (verbatim). Do not create gaps between the law and your policy.
4. “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:

1. 1.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.
   
   1. 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.
   2. 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 were pending.
2. 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 given 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.
   
   1. 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. 
   2. 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.” 
3. Make it your job to see that they get it. Make it a better, more favorable story for our defense if they don’t.
4. One of these days...I’m going to craft a form for documenting the steps we take to get work to kids and how we took those very steps in our case.

Traditional Disciplinary Action: Expulsion

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.

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. 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.
2. Conditions must be related to the behavior/infraction.
3. Conditions 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.

Suspension and Expulsion: The Unwritten Rules, Politics, and Stray Thoughts

Tips for Superintendents:

1. Talk to the school board about expulsion and find out what their disposition is on critical issues:
   
   1. Are there offenses that the school board insists must come before the board for expulsion? 
   2. What is the school board’s view of conditional early reinstatement and when does the board expect “time served”?
   3. Does the school board want to hear expulsion cases or would they prefer to assign them to an independent hearing officer?
   4. Account for “traditions” that the school board may follow. Example: some school districts have a script that the school board president reads. If it’s good, perhaps it’s worth keeping; however, most that I have seen are problematic.
2. What must be changed? When a new superintendent comes to a school district, she/he will want to identify aspects of the expulsion process that need changing or require a second look.

   Factors that the new superintendent’s audit of disciplinary procedures should account for:

   1. Giving the parents/guardians and/or the pupil the option of having the expulsion conducted in open session, based on unfortunate statutory language that could be taken to imply that parents and students have that option.
   2. Sending expulsion packets out in advance. Technically, the school board should receive evidence at the hearing, not before. Sending the school board an advance copy of the administration’s exhibit packet before the hearing will likely be a due process violation that could result in a decision to expel being reversed.
   3. It’s good to go over the type of school board questions and comments, during and at the end of hearing, that the board tends to focus on. Talk to your Board President or “Historian” about this.
3. Do not allow a school board member to join the hearing after evidence has been submitted.
4. Expressly note the school board members’ obligations to consider the evidence fairly and extend the opportunity to board members to recuse themselves if they do not believe they can adjudicate the matter fairly and impartially. But remember:
   
   1. A school board member is generally impartial if they do not have a pecuniary interest in the outcome and have not been the target of personal abuse by the student or parents/guardians. In addition, verifying that school board members have not prejudged the case to the point that they cannot decide it any other way is appropriate and relevant to due process.
   2. Recusal may be permitted, but not entirely appropriate if it is done on other grounds.
   3. This is not subject to challenge at the hearing. Consequently, if school board members decide to remain on the board for the hearing after receiving this notice, the pupil and parents/guardians cannot cross-examine them about their decision (although they could raise any evident bias in a challenge to the board’s decision, bearing in mind that DPI may not consider this claim).
5. The school board cannot remove one of its members from an expulsion hearing, even if the board feels that one member’s bias is clear and presents a danger to the orderly conduct of the hearing. A school board member cannot be barred from attending board meetings under state law, even if their participation might compromise due process.
6. Do not read the incident reports or other packet materials verbatim when introducing them as evidence. The board will be bored. Summarize the evidence and read the quotes that punctuate your case effectively. For the same reasons, attach relevant board policies but do not read them to the board: tell the board why they apply to this case and little else is necessary.
7. Talk to your administrative team about coordination with law enforcement officials on suspension. This is a far trickier area than most will acknowledge. Issues include:
   
   1. The school district must do its own investigation. Some districts will not directly investigate matters that are also criminal and simply hand the student over to law enforcement officers in these instances. This is not appropriate:
      
      1. The school district cannot rely solely on law enforcement materials, such as reports to make a student disciplinary decision. Doing so violates state law.
      2. The school district may not be in a position to complete the suspension process appropriately if it simply defers to law enforcement investigations.
   2. Make sure you have an interagency agreement in effect with all relevant law enforcement agencies. This will help you to share information about students with law enforcement personnel without violating the pupil records law. 

Suspension and Expulsion: A Checklist for Hearing

The following materials will help provide a complete record of relevant documents at many expulsion hearings:

1. Notice of Pupil Expulsion Hearing
2. 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).
3. Notice of Suspension
4. Incident report(s) from investigating administration
5. Evidence gathered by Administration (video, statements, emails, etc.)
6. Student handbook and provisions violated. Include proof of receipt by students and parents/guardians.
7. Board policies violated
8. Attendance history
9. Disciplinary history
10. Academic history

NOTE: Items 8, 9, and 10 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.

We hope these insights into traditional disciplinary action prove helpful. In Part 2 of our series, we’ll be focusing on disciplinary alternatives, including: conditional enrollment, pre-expulsion hearing or contract, stipulated expulsion, withdrawal agreements, and residency.