In July, Kirk Strang presented his School Law Update at the WASDA Summer Legal Seminar.
For those who weren’t able to attend the seminar, or would simply like a second look at the material, we’ve been rolling out the information Kirk presented right here on our blog, covering all six of the following topics …
- New Wisconsin Laws Enacted & Proposed
- New Federal Laws Proposed
- Developments in Federal Constitutional Law
- Open Meetings & Public Records Laws
- Wisconsin Decisions
- Artificial Intelligence (AI) in Schools
In this installment of our school law update series, we focus on Wisconsin decisions on court cases, as well as state superintendent of public instruction decisions regarding IDEA and expulsion.
Let’s begin with Kirk’s insights into court cases …
Court Cases
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Klosterman v. School District of Omro, 2022 WI App 54, 404 Wis.2d 688, 981 N.W.2d 424.
Relevant Facts:The Plaintiff, Neil Klosterman, was employed by the School District of Omro as a teacher. During his employment, Klosterman frequently engaged in physical contact with male middle school students, which other staff members and parents identified as overly familiar and inappropriate for a student/teacher relationship.
Due to Klosterman’s repeated physical contact with middle school students — and refusal to change his behavior when asked — Klosterman was placed on administrative leave and banned from school grounds. The District maintained the ban after Klosterman resigned.
After his resignation, Klosterman made multiple requests that the ban be lifted. The School Board considered Klosterman’s request at a board meeting in June of 2019, where the board was provided with the full investigative file and heard testimony from a former law enforcement specialist. The specialist testified that “Klosterman's behavior was consistent with ‘grooming’ behaviors exhibited by sexual predators.” The Board determined that the Ban must remain in effect.
After a request from Klosterman’s legal counsel, the Board met again in September of 2019, where it voted unanimously to maintain the ban.
Klosterman filed suit against the District, seeking a declaratory judgment that the ban was unlawful. The Circuit Court granted Summary Judgment to the District. The Court of Appeals affirmed.Court Ruling:
The Wisconsin Court of Appeals concluded that Wisconsin statute affords school boards the authority to ban members of the public from school premises. In fact, a school board has wide discretion to do so. In this case, the District reasonably applied its authority to ban Klosterman from its premises.
The court determined that three state statutes applied to the ban of persons from school premises: Wis. Stat. § 120.13, § 120.12(1), and § 118.001. These statutes provide:- A school board “may do all things reasonable to promote the cause of education …” Wis. Stat. § 120.13.
- A school board shall “have the possession, care, control and management of the property and affairs of the school district …” Wis. Stat. § 120.12(1).
- “The statutory duties and powers of school boards shall be broadly construed to authorize any school board action that is within the comprehensive meaning of the terms of the duties and powers, if the action is not prohibited by the laws of the federal government or of this state.” (emphasis added). Wis. Stat. § 118.001.
The court interpreted these provisions to afford a school board the authority to ban an individual from school property. Moreover, it noted that, in Wisconsin, courts have generally deferred to the school board’s judgment in making decisions that “preserve[ ] its control over school district affairs.”
Applying this reasoning to Klosterman’s circumstances, the court held that the Board “certainly did not erroneously exercise its wide discretion.”
State Superintendent of Public Instruction Decisions
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IDEA Complaint Decision 23-008.
A student with a disability was placed on a half-day schedule at an IEP team meeting in April of 2022. This change in placement was documented in the student’s IEP. However, the team did not document the reason a shortened day was required. The team also did not create a plan for the student’s eventual return to a full day in school.
The State Superintendent explained that a shortened school day should be a very rare occurrence. When it occurs, the student’s IEP must document the reason a shortened day is required and the plan for the student’s return to a full school day. The plan should include more frequent IEP team meetings to review student data and discuss the student’s potential return to a full day.
The State Superintendent concluded that the district improperly implemented these requirements to discuss and document placement determinations. The State Superintendent ordered the district to convene the student’s IEP team, address any effects of its missteps, and properly determine the student’s placement. -
IDEA Complaint Decision 23-020.
The parent of a student with a disability brought multiple concerns to the State Superintendent, including that the student was prohibited from participating in the student’s own IEP team meeting.
The State Superintendent noted that an IEP team meeting must include the student “whenever appropriate.” However, the determination of whether the student’s attendance is appropriate is ultimately the parent’s decision, and not the district’s.
In this case, the student’s parent wanted the student to attend the IEP meeting. The district felt, however, that the student should not attend the first portion of the meeting. The head principal refused to allow the student’s attendance.
The State Superintendent determined that the district’s partial prohibition was inappropriate. It ordered the district to submit a corrective action plan to the department, which ensures, in part, that staff are properly trained regarding students’ rights to participate in their IEP team meetings.
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IDEA Complaint Decision 23-024.
The guardian of a student with a disability became aware that there was no licensed special education teacher in the student’s classroom. The guardian contacted district staff, who acknowledged that this was true. Due to teacher vacancies, paraprofessionals were providing the student’s special education services.The State Superintendent asserted that a special education paraprofessional cannot be assigned teacher duties and must work under the supervision of a licensed teacher. There was no such supervision in this case. In addition, special education services must be provided by properly licensed teachers.
The State Superintendent found that the district was not compliant with these requirements. It ordered the district to submit a corrective action plan to the department which sets forth its plan to fill the vacant special education teacher positions. After these positions have been filled, the district has thirty days to convene IEP team meetings to address how students were impacted by these vacancies.
- IDEA Complaint Decision 23-010.
A student with a disability was the victim of bullying on multiple occasions. In October, the student was unable to attend school due to medical concerns stemming from anxiety. The student and the student’s parents identified the bullying as the cause of this anxiety.
The student’s IEP team was made aware of the bullying, but no changes were made to the student’s IEP. Because the student’s parents felt their concerns had not been addressed, the student did not return to school.
The State Superintendent concluded that the district had not appropriately responded to the allegations of bullying. Schools are obligated to ensure that students with a disability who are the target of bullying continue to receive FAPE. The district should have considered how the student’s needs changed as a result of the bullying and identified any additional or revised services required to address those changes. -
Expulsion Decision 827 (Post-Proceedings Request for Postponement).
The mother of a pupil in the Racine Unified School District appealed the pupil’s Order of Expulsion. The pupil’s mother contended that, at the time of the expulsion hearing, she was at work and the pupil’s father was unavailable due to a family emergency. As a result, the pupil’s mother now requests that another expulsion hearing be scheduled.
The hearing record indicates that neither the pupil nor his parents contacted the District to request a postponement or share that they would be unable to attend the hearing. In fact, the hearing examiner delayed the hearing for 24 minutes past the scheduled start time to allow the Administration to contact the pupil and his parents. The Administration was unable to make contact.
The State Superintendent noted that the pupil and parents’ only request to reschedule the hearing appears in this appeal. Prior to the hearing, and in the month following it, the District did not receive a request to reschedule.
The State Superintendent determined that the District had no obligation to postpone the hearing in the absence of a request. The expulsion was affirmed. -
Expulsion Decision 821 (Refusal To Accept Notice of Expulsion Hearing Sent By Certified Mail).
The father of a pupil in the Stone Bank School District appealed the pupil’s Order of Expulsion. The pupil’s father contended that he never received notice of the expulsion hearing. However, the record indicates that the appellant was aware of the hearing and actively refused to accept the notices and refused to provide an up-to-date mailing address.
The District sent three notices of the expulsion hearing to the pupil and his parents by certified mail. Each notice was returned to the District with the label, “RETURN TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD.” Before mailing these notices, District staff had confirmed the appellant’s mailing address.
After the first notice of expulsion hearing was returned to the District, District staff contacted the appellant by phone. During this phone call, the appellant stated that he would not accept hand-delivery of the notice.
After the second notice was also returned to the District, District staff again contacted the appellant via email. The appellant responded with three disparaging emails, culminating in the following message: “Last message here’s my new address [emoji with a middle finger pointing up].”
The District responded by sending the notice of expulsion hearing to the appellant via email. Neither the pupil nor his parents appeared at the hearing.
The State Superintendent concluded that the District had made “significant effort” to provide notice to the pupil and his parents, but the appellant actively refused to accept service. As a result, it found that the District had complied with the statutory requirement to “mail a copy of the [expulsion] order to the pupil and, if the pupil is a minor, the pupil’s parent or guardian.” The expulsion was affirmed. -
Expulsion Decision 820 (School Board Refusal To Allow Pupil To Present Evidence Concerning Family Health Issues).
The mother of a pupil in the Appleton Area School District appealed the pupil’s Order of Expulsion. The pupil’s mother contended, in part, that the pupil was not permitted to discuss his family’s health issues at the hearing.
The State Superintendent noted that it must ensure a pupil has been afforded due process; this is not limited to the due process requirements set forth in the expulsion statute. The expulsion statute “is not an exhaustive list of fundamental due process rights.”
A pupil’s right to be heard is a fundamental due process right. In addition, the Seventh Circuit court has stated that when expulsion is involved, a school board “must afford the student an opportunity to present evidence and argument in mitigation.”
The State Superintendent also noted that the notice of expulsion hearing sent to the pupil and his parents stated that the Board could consider “family circumstances” in making its decision. However, the pupil was denied the opportunity to testify regarding his family circumstances.
The State Superintendent concluded that this denial violated the pupil’s due process rights. The expulsion was reversed.
This brings us to the end of Part 5 of our school law update series. Our final installment of the series will focus on artificial intelligence (AI) in schools.
In case you missed them, here are links to all previous installments of the series:
School Law Update, Part 1: New Wisconsin Laws Enacted & Proposed
School Law Update, Part 2: New Federal Laws Proposed
School Law Update, Part 3: Developments in Federal Constitutional Law
School Law Update, Part4: Open Meetings & Public Records Laws