The Unwritten Rules, Politics, and Stray Thoughts Concerning Expulsion

In September of 2023, Kirk presented a legal update at the CESA 10 Superintendent Meeting with a focus on six topics …

1. Pupil Discipline & Expulsion
2. Expulsion — the Unwritten Rules, Politics, & Stray Thoughts
3. Disciplinary Alternatives to Expulsion
4. Nonrenewal Teacher & Administrator Contracts
5. Gender Identity
6. Student Speech & Expression

In this 6-part series, we’re tackling each of these topics one-by-one, in an effort to share Kirk’s major talking points with more superintendents, teachers and administrators throughout Wisconsin.

In Part 2 of this series, our focus remains on expulsion — specifically Kirk’s insights into the unwritten rules, politics and stray thoughts concerning expulsion.

In this article you will learn eight insightful tips for superintendents and school boards regarding expulsion, as well as Kirk’s eight-point checklist for a successful expulsion hearing,

Let’s get started with Kirk’s tips … 

TIPS FOR SUPERINTENDENTS & SCHOOL BOARDS

1. Determine what your 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 board’s view of conditional early reinstatement and when does the board expect “time served?”
   3. Does the board want to hear expulsion cases, or would it 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? Identify aspects of the expulsion process that require revision.

   Factors that the audit of disciplinary procedures should account for:

   1. Giving the parent(s)/guardian(s) and/or 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. The administration should 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. This is a tricky area. 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/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 disciplinary 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.

8. The written minutes of the expulsion hearing must be sufficiently detailed. Hearing minutes must meet the following standard:

   At a minimum, minutes must reflect (1) who was present at the hearing, (2) what evidence was presented in support of allegations of misconduct and (3) what decisions or actions a board took based upon the evidence presented. 

The State Superintendent has reversed expulsion decisions upon appeal due to insufficient written minutes of the hearing.

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 the provisions violated. Include proof of receipt/acknowledgment by students and parents/guardians.
7. Board policies violated

8. Attendance history / Disciplinary history / Academic history

   NOTE: Item 8 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.

This brings us to the end of Part 2 of the series. In Part 3, we dive into disciplinary alternatives to expulsion — including conditional enrollment, pre-expulsion hearing/contract, stipulated expulsion, and withdrawal agreements.