In Part 1 of this series, we talked about traditional forms of disciplinary action, including: suspension, expulsion, tips for superintendents on these matters, as well as a checklist for a suspension of expulsion hearing.
In Part 2, our focus shifts to disciplinary alternatives a superintendent may want to consider, including:
- Conditional enrollment
- Pre-expulsion hearing or contract
- Stipulated expulsion
- Withdrawal agreements
- Residency
This material originally appeared in Kirk Strang’s presentation at the October 2022 WASDA New Superintendents Academy. Because of its importance, we’re sharing it again here ...
1. Conditional Enrollment
Statutory requirements: Wis. Stat. §120.13(1)(h).
- “Conditional enrollment” is defined as 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.
- “Enrollment condition” means a condition that a pupil must satisfy before he/she is granted conditional enrollment or a condition that must be met after conditional enrollment begins but before the expiration of the term of expulsion specified in the pupil’s original expulsion order.
- 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, resulting in a far less desirable situation for the pupil and parent).
- This may also mean that 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.
- 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 (see below).
- Procedure:
- School districts that use pre-expulsion hearings make them mandatory. Pupil and parents don’t have the option to disregard request for the “hearing” (and could face a real expulsion hearing if they refused to meet).
- Meeting usually includes the superintendent and, possibly, a building principal.
- This is an alternative to a bona fide expulsion hearing, because grounds for convening a pupil expulsion hearing under state law are presented. Make clear to the pupil and parents 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 simply state that any expellable offense will result in revocation and an expulsion hearing. If this approach is taken, the pre-expulsion hearing is essentially a procedure used to give students a second chance and to warn students and their parents what the consequences of specific behavior can be. It moves a student no closer to expulsion than they would otherwise be under the law.
- Other 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).
- To protect any decision rendered in this type of case, the Board should not be given the chance to consider any attendance, academic, or disciplinary history that occurred after the expellable offense before the Board took place.
- Never, Sometimes, Or Always?
- If you are prepared to live with a hard rule that all first offenses will go through the pre-expulsion hearing or contract process, do so.
- However, if some offenses are simply too dire to send to the pre-expulsion process and an imperative to seek expulsion can plausibly be presented in a first offense case, acknowledge that now and accept that policymaking will be necessary to implement this viewpoint successfully.
- In this regard, policy making is required to articulate non-discriminatory criteria for sending a first offender to an expulsion hearing before the Board instead of to a pre-expulsion hearing with an administrator. Claims of disparate treatment may be made in any event, but certainly in the absence of standards that can support a school district’s defense.
- Examples of standards to consider:
- The most common standard: “this just seems too severe to do a pre-expulsion hearing.” This ad hoc approach is understandable, but vulnerable to attack or, at least, doesn’t inspire confidence in the District’s objectivity.
- Adopt “classes of offenses” and allow immediate expulsion for more severe offenses based on classification.
- Adopt a general subjective standard that requires sign offs (and effectively makes the process the standard).
- The Board may have given guidance that certain types of cases need to be presented to the Board for its consideration. This group of offenses may form a standard to apply in its own right, but should be verifiable if a school district wants to cite this procedure in its own defense.
- Essential Provisions:
- 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.
- 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.
- Value of the “Contract” approach:
- May be of added value where parents tend to be angry and threatening; circulating a written agreement may make your meetings shorter or eliminate the need to meet in some cases.
- Signing a “contract” adds a level of process and puts students’ honor at stake. This helps with people who take this process seriously.
- Provides uniformity and establishes that equal treatment for similarly situated students has been provided.
- Generally regarded as a way to address behavior, but also—at a minimum—it enshrines a second chance policy of sorts, so it does reduce the effective rate of expulsion in a school district and validates most schools’ aspiration of avoiding expulsion.
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 parents 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 he/she admits to the charges against him/her.
- The pupil and parents/guardians 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 parents agree that the Board and/or IHO could reasonably find that the interests of the school demand the pupil’s expulsion.
- The pupil and parents 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.”
Generally, agreements characterized as withdrawal agreements involve an agreement where the student agrees to withdraw from the school district.
- Contents of a withdrawal agreement to consider:
- Include a representation about arrangements for the pupil to begin attending school in another school (private or public).
- Agreement may be fortified (if not legally, at least on a practical level) by having the withdrawal announced/proposed by the parents. If parents are represented, proposal should come from attorney, if possible.
- Note the authority of the parents to determine where their child is sent to school.
- Note requirements of the truancy statute.
- Note legal obligation of parents to ensure that student attends school.
- School district enters into agreement only with assurance that parents will require student to attend school.
- Expulsions proceedings held in abeyance.
- Identify the consequences if a student returns before the term of expulsion expires (in cases where an order of expulsion has been issued).
- Expulsion proceedings will resume, or school district reserves the right to commence expulsion proceedings if:
- The student attempts to return or returns to the district.
- The student and/or parents mislead any other authority concerning the student’s enrollment or truancy.
- The student or parents breach the agreement, or other identified infraction.
- Process:
Signing, swearing, and notarizing can add solemnity to entering into the agreement and discourage challenges. There are situations where it may be overkill or may scare a willing counterpart away, but it is usually a good thing when some formality can be incorporated into the process.
5. 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 end of our series on student discipline & expulsion. If you missed Part 1, you can read it here.
And if you found this information helpful, you may also like our series on Challenges for the 2022-2023 School Year, which covers the following topics: