Wisconsin school-discipline law1 gives tremendous power to school boards to discipline public school students. In general, as long as minimal due process is provided to the student and the student’s parents, and the discipline is not discriminatory, school boards have extremely wide latitude to discipline students. This article describes that power and discusses how the overuse of school discipline fuels what has become known as the school-to-prison pipeline.
Wisconsin law2 permits a school district administrator, principal, or teacher designated by the school district administrator to suspend a pupil for:
disobeying school rules;
conveying any threat or false information concerning an attempt to destroy school property by explosives;
engaging in conduct while at school, or under the supervision of a school authority, that endangers the property, health, or safety of others; or
engaging in conduct while not at school, or while not under the supervision of 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 in the pupil’s district.
Combating the School-to-Prison Pipeline: Two Stories
By Jeffrey Spitzer-Resnick
A few months ago, I had the opportunity to apply the synergy of individual advocacy and systems change. For nearly 20 years, I have been combating the school-to-prison pipeline. In January, I started writing a series of blogs and submitted them to the Madison Metropolitan School District (MMSD) school board. At the time, MMSD administrators were developing drafts of what started out as a proposed revision of its discipline plan but became (on my advice) the new Behavior Education Plan and took effect Sept. 1, 2014. That plan had been sailing under the radar with relatively minimal public input, until my clients and I went public with an expulsion case that was a classic example of how a single mistake has the potential to fuel the school-to-prison pipeline.
The school board adopted the new plan immediately after it ended the expulsion of my ninth-grade client just a few weeks into the one-and-a-half-year expulsion term. That term originally had been proposed by the MMSD superintendent, and ultimately was adopted by the expulsion hearing officer after a grueling nearly five-hour hearing. This case received significant media attention as an instance of zero tolerance run amok: my client’s only behavioral mistake in nearly 10 years of public school education in Madison was succumbing to peer pressure, and bringing a small amount of alcohol in a water bottle to school and giving a small amount to a friend (and neither she nor the friend drank any of it). After the hearing, and perhaps due to media exposure, the school board, at the MMSD superintendent’s suggestion, applied the proposed (now adopted) Behavior Education Plan (under which my client would not have been expelled) to pending expulsions for the remainder of the 2013-14 school year.
Thus, in one night, the school board ended my client’s expulsion, and then approved the new Behavior Education Plan in front of a packed auditorium. While it is my hope that the happy end to this story helps to slow the influx of children into the school-to-prison pipeline, I will also never forget a case I had many years ago. A client of mine was home alone during a suspension pending expulsion, because his single mother was at work during school hours. During that interim period while I was asserting his special education rights, he made the mistake of shoplifting at a local convenience store. That infraction ended my ability to advocate for him because, due to his prior record, he was court ordered to juvenile detention and lost his local school rights.
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.
The law requires suspension if the student possessed a firearm while at school or under the supervision of the school authority.3
Before suspending a student, the school district must inform the student of the reason for the proposed suspension. The school district must also give the parent or guardian of a suspended minor student prompt notice of the suspension as well as the reason for the suspension.4
A student may be suspended for up to five school days. However, if a notice of an expulsion hearing has been sent, the student may be suspended for up to 15 consecutive school days, unless the student is eligible for special education services, in which case the maximum length of a suspension is 10 school days.5
Although parents may appeal school suspensions to a school district administrator, there is no further legal review after such an appeal, so such appeals are rarely taken.6
Public schools cannot deny a pupil credit in a course or subject solely because of the student’s suspensions from school. The school’s attendance policy must specify the conditions under which a student will be allowed to take any quarterly, semester, or grading-period examinations and complete any course work missed during a suspension.7
A pupil may be expelled from school for any of the following reasons:8
repeated refusal or neglect to obey school rules;
threatening to destroy school property by explosives;
engaging in conduct while at school or under the supervision of a school authority that endangered the property, health, or safety of others;
conduct while not at school or while not under the supervision of a school authority that endangered the property, health, or safety of others at school or under the supervision of a school authority or endangered the property, health, or safety of any employee or school board member in the pupil’s district; and
conduct that endangers a person or property, including making a threat to the health or safety of a person or making a threat to damage property.
In addition, the school board may expel from school a pupil who is at least 16 years old if the school board finds that the pupil repeatedly engaged in conduct while at school, or while under the supervision of school authorities, that disrupted the ability of school authorities to maintain order or an educational atmosphere at school or at an activity supervised by a school authority.
Finally, a school board must commence proceedings and may expel a pupil for at least one year for possession of firearms on school property. Expulsion is not mandatory; the board may modify this requirement on a case-by-case basis.9
Special Education Protections from Expulsion
Students who are eligible for special education services, or are in the midst of being evaluated for such eligibility, have some protection from being expelled, to ensure that the expulsion does not move forward if the student’s misbehavior is a manifestation of the student’s disability. Therefore, if a school district wishes to expel such a student, it must first hold a manifestation determination meeting as soon as possible after the decision is made to ask the school board to expel the student, but no later than 10 days after such decision is made.
The manifestation determination is basically a specialized individualized education plan (IEP) team meeting, which must include the student’s parent(s), the student (if appropriate), the student’s special education teacher, the student’s regular education teacher, and a local educational-agency representative (typically a principal or special education director) who has authority to make decisions on behalf of the school district. The meeting may also include any other personnel who might have particularized knowledge of the incident for which the student’s expulsion is proposed.
If the manifestation determination concludes that the student’s misbehavior in question was a manifestation of the student’s disability, or if failure to implement the student’s IEP caused the misbehavior, the school board cannot expel the student. If the student’s misbehavior was not a manifestation of the student’s disability, the expulsion process may proceed. However, if the student is expelled, the school district must continue to provide the student with a free appropriate public education, albeit not necessarily in the school setting.10
Expulsion Administrative Process
Standards and Proceedings. The bar school boards must cross to expel students is very low. Basically, there must be evidence to establish that 1) the facts alleged in the notice of expulsion hearing are true, 2) at least one of the grounds for expulsion listed in the notice of hearing is met, and 3) the board is “satisfied that the interest of the school demands the pupil’s expulsion.”11
A school board’s decision to expel a student is essentially unreviewable, other than whether it followed proper procedure. That procedure requires that the school district send a written notice to the parent and to the pupil at least five calendar days before an expulsion hearing. The notice must 1) specify the particulars of the pupil’s alleged conduct warranting expulsion, 2) state the time and place of the hearing, and 3) state that the hearing may result in the pupil’s expulsion. The notice must also explain other specific rights and must specify the state statutes that pertain to pupil expulsion.12
The student (and, if a minor, the student’s parents or guardian) may be represented at the hearing by counsel. With or without an attorney, the pupil and the parent have a right to question and call witnesses and to offer other evidence or arguments of their own.
School boards can either hold expulsion hearings as a board or appoint an independent hearing officer to hold the hearing. If the district uses an independent hearing officer, that officer makes an expulsion recommendation to the board, and the school board may accept, modify, or reject the recommendation.
Terms and Conditions. School boards have the authority to expel a student for any length of time they choose, including permanently. There is no review of the length of expulsion. School boards can impose one or more early-reinstatement conditions, under which an expelled student may be reinstated to school before the end of the term of expulsion. An early-reinstatement condition may be 1) a condition that a student is required to meet before being granted early reinstatement; or 2) a condition that a student is required to meet after early reinstatement, but before the end of the term of the expulsion specified in the expulsion order. The early-reinstatement conditions must be related to the reasons for the pupil’s expulsion and must be specified in the expulsion order.13
Appeal and Review. Expulsion decisions may be appealed in writing to the Wisconsin Department of Public Instruction (DPI) within 60 days after the expulsion decision. However, the DPI will only review such decisions for procedural error. The expulsion remains in effect pending the DPI’s review.14
Education Options for Expelled Students
Although school districts must continue to educate expelled students if they are eligible for special education, all other expelled students have limited options. These students may be home-schooled or apply for enrollment in a private or another public school, but admission to other schools is at the option of the private or other public schools. A school district is not required to enroll a student during the term of his or her expulsion from another Wisconsin school district.15
School Discipline and the School-to-Prison Pipeline
In January 2014, the U.S. Department of Education joined with the U.S. Department of Justice and issued important guidance on the “Nondiscriminatory Administration of School Discipline.”16 This extensive letter reviews the data uncovered by the Civil Rights Data Collection (CDRC) conducted by the Department of Education’s Office of Civil Rights (OCR). This data reveals significant racial disparities in the administration of student discipline. Among the findings are the following:
African-American students without disabilities are more than three times as likely as their white peers without disabilities to be expelled or suspended.
Although 15 percent of students in the CRDC are African American, 35 percent of students suspended once, 44 percent of those suspended more than once, and 36 percent of students expelled are African American.
More than 50 percent of students who were involved in school-related arrests or referred to law enforcement are Hispanic or African American.
Most significantly, the guidance states that, “research suggests that the substantial racial disparities of the kind reflected in the CRDC data are not explained by more frequent or more serious misbehavior by students of color.”
In general, as long as minimal due process is provided to the student and the student’s parents, and the discipline is not discriminatory, school boards have extremely wide latitude to discipline students.
This is because “in our investigations we have found cases where African-American students were disciplined more harshly and more frequently because of their race than similarly situated white students. In short, racial discrimination in school discipline is a real problem.”
“The CRDC data also show that an increasing number of students are losing important instructional time due to exclusionary discipline. The increasing use of disciplinary sanctions such as in-school and out-of-school suspensions, expulsions, or referrals to law enforcement authorities creates the potential for significant, negative educational and long-term outcomes, and can contribute to what has been termed the ‘school to prison pipeline.’ Studies have suggested a correlation between exclusionary discipline policies and practices and an array of serious educational, economic, and social problems, including school avoidance and diminished educational engagement; decreased academic achievement; increased behavior problems; increased likelihood of dropping out; substance abuse; and involvement with juvenile justice systems.”
The guidance letter then specifically points out prohibited practices, including intentional discrimination by disparate treatment, that is, administering harsher discipline on students due to their race (or other protected class) for the same behavior as another student; and discrimination through disparate impact, that is, one racial (or other protected class) group receives overall harsher or more discipline than another without valid justification. To determine whether this is occurring, the federal government will ask the following questions:
Has the discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races?
Is the discipline policy necessary to meet an important educational goal?
Are there comparably effective alternative policies or practices that would meet the school’s stated educational goal with less of a burden or adverse impact on the disproportionately affected racial group, or is the school’s justification a pretext for discrimination?
Examples of policies that can raise disparate-impact concerns include policies that impose mandatory suspension, expulsion, or citation (for example, ticketing or other fines) on any student who commits a specified offense, such as being tardy to class, being in possession of a cell phone, insubordination, acting out, or not wearing the proper school uniform; corporal punishment policies that allow schools to paddle, spank, or otherwise physically punish students; and policies that prevent youth returning from involvement in the justice system from reenrolling in school.
Additionally, policies that impose out-of-school suspensions or expulsions for truancy also raise concerns because a school would likely have difficulty demonstrating that excluding a student from attending school in response to the student’s efforts to avoid school was necessary to meet an important educational goal.
From an advocacy perspective, this means that if advocates file complaints against school districts for discriminatory discipline practices, and the federal government substantiates the complaint, the federal government may require one or more of the following remedies:
Correcting the records of students who were treated differently regarding the infraction and sanction imposed;
Providing compensatory, comparable academic services to students who receive in-school or out-of-school suspensions or are expelled, placed in an alternative school, or otherwise removed from academic instruction;
Revising discipline policies to provide clear definitions of infractions to ensure that consequences are fair and consistent;
Developing and implementing strategies for teaching, including the use of appropriate supports and interventions, that encourage and reinforce positive student behaviors and use exclusionary discipline as a
Providing training for school personnel on revised discipline policies and classroom management techniques;
Providing school-based supports for struggling students whose behavior repeatedly disrupts their education or the education of other students;
Designating a school official as a discipline supervisor to ensure that the school implements its discipline policies fairly and equitably;
Conducting comprehensive needs assessments to ensure that measurement of the perceptions of students and other members of the community in connection with the administration of school discipline takes place, and using the results of these assessments to make responsive changes to policies and practices;
At least annually, conducting a forum during the school day that provides students, teachers, and administrators with the opportunity to discuss matters relating to discipline and provide input on the school’s discipline policies;
Developing a training and information program for students and community members that explains the school’s discipline policies and what is expected of students in an age-appropriate, easily understood manner;
Creating a plan for improving teacher-student relationships and on-site mentoring programs; and
Conducting an annual comprehensive review of school-resource-officer interventions and practices to assess their effectiveness in helping the school meet its goals and objectives for student safety and discipline.
Finally, the appendix includes important recommendations to improve school climate, including:
Creating safe, inclusive, and positive school climates that provide students with supports such as evidence-based tiered supports and social and emotional learning;
Providing all school personnel, including teachers, administrators, support personnel, and school resource officers, with ongoing, job-embedded professional development and training in evidence-based techniques on classroom management, conflict resolution, and de-escalation approaches that decrease classroom disruptions and use exclusionary disciplinary sanctions as a last resort;
Ensuring that school personnel understand that they, rather than school resource officers and other security or law enforcement personnel, are responsible for administering routine student discipline;
Ensuring that discipline policies include a range of measures that students may take to improve their behavior before disciplinary action is imposed;
Emphasizing positive interventions instead of student removal;
Developing a policy requiring the regular evaluation of each school’s discipline policies and practices and other school-wide behavior management approaches to determine if they are affecting students of different racial and ethnic groups equally; and
Collecting and using multiple forms of data, including school climate surveys, incident data, and other measures as needed, to track progress in creating and maintaining a safe, inclusive, and positive educational environment.
In sum, this landmark guidance is an important step in eliminating the school-to-prison pipeline. Now it is up to advocates and school districts to make sure this guidance is implemented and that the pipeline becomes a thing of the past so all students can thrive and learn in safe schools.
1 Wis. Stat. §§ 120.13, 119.25.
2 Wis. Stat. § 120.13(1)(b).
3 Wis. Stat. § 120.13(1)(bm).
4 Wis. Stat. § 120.13(1)(b)3.
5 Wis. Stat. §120.13(1)(b); 34 C.F.R. §§ 300.530-.537.
6 Wis. Stat. § 120.13(1)(b).
7 Wis. Stat. §§ 118.16(4)(b), 120.13(1)(b).
8 Wis. Stat. §§ 120.13(1)(c), 119.25.
9 Wis. Stat. §§ 119.25(2)(a)2., 120.13(1)(g).
10 34 C.F.R. §§ 300.530-.537.
11 Wis. Stat. § 120.13(1)(c)1.
12 Wis. Stat. §§ 119.25, 120.13(1)(c).
13 Wis. Stat. §§ 119.25(2)(d), 120.13(1)(h).
14 Wis. Stat. § 120.13(1)(e)4.L.
15 Wis. Stat. § 120.13(1)(f).