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  • October 11, 2022

    School Board had Authority to Ban Former Teacher from School Grounds

    State law grants a school district the authority to ban a former teacher from school district property, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    A Large, New Brick School Building Beneath A Blue Sky, With A Flagpole Out Front

    Oct. 11, 2022 – State law grants a school district the authority to ban a former teacher from school district property, the Wisconsin Court of Appeals has ruled.

    In Klosterman v. Omro School District, 2020AP2076 (Sept. 28, 2022), the Court of Appeals District II held that the ban was within the broad powers that state law grants to school boards.

    The decision came on a 2-1 vote. Presiding Judge Mark Gundrum wrote the majority opinion and was joined by Judge Lisa Neubauer. Judge Shelley Grogan dissented.

    Board Reverses Decision

    Neil Klosterman began teaching at the middle school in the Omro School District in 2005. The district reprimanded Klosterman in 2016. In April 2018, the district decided not to offer Klosterman a contract for the 2018-2019 school year.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Community members were outraged and packed a school board meeting in May 2018. The board unanimously reversed its decision regarding Klosterman’s contract, and offered him a contract for the 2018-19 school year.

    DPI Takes No Action

    In October 2018, the district placed Klosterman on paid administrative leave. That move came after an investigation by Peeters, a former policeman who served as the school’s resource officer, raised concerns about Klosterman’s physical contact with students.

    Peeters contacted Child Protective Services (CPS) and informed the agency of the concerns about Klosterman; CPS took no action. Peeters ended his investigation and noted in his report that no one alleged that Klosterman had violated any criminal laws.

    Kelly Rieckmann, the district’s superintendent, notified the state Department of Public Instruction (DPI) about the concerns raised about Klosterman.

    The district sent DPI a copy of Klosterman’s personnel file. After interviewing Klosterman, DPI concluded that it had no basis to revoke his teaching license.

    Paid Leave and a Ban

    When it placed Klosterman on administrative leave, the district told Klosterman that he was prohibited from entering the district’s grounds or buildings unless he had “prior express permission” from Rieckmann or the district’s human resources director.

    Klosterman resigned in December 2018. On several occasions he asked the school board to lift the ban that prohibits him from entering school property; the board declined.

    Klosterman then filed a lawsuit in Winnebago County Circuit Court, seeking both a judgment that the property ban violated his rights and an injunction against the district’s ban. After the circuit court granted summary judgment for the district, Klosterman appealed.

    Broad Powers for School Boards

    In his opinion for the majority, Judge Gundrum explained that Wis. Stat. section 120.13 entrusts to school boards “the possession, care, control and management of the property and affairs of the school district.”

    Gundrum pointed out that another statute, section 118.001, specifies that the statutory duties and powers of school boards “shall be broadly construed.”

    Gundrum then looked to Wisconsin Court of Appeals precedent – specifically, a case in which the court of appeals held that it was lawful for a school board to authorize the payment of health insurance benefits for the unmarried partners of district employees, even though a statute authorized such payments only for employees and officers and their spouses and dependent children.

    “If a school board’s discretion is wide enough to allow it to authorize an entire category of persons to be eligible for health insurance benefits beyond the categories specifically enumerated in the statute, as in [the precedent], certainly it is wide enough to authorize a ban from District property of an individual whose presence on District property the board has determined ‘would unnecessarily expose students to potentially dangerous behavior,’” Gundrum wrote.

    Ban was Reasonable

    Judge Gundrum also concluded that in banning Klosterman, the school board had not made an erroneous exercise of the wide discretion which case law grants schools boards in carrying out their powers. 

    “We conclude that the board acted reasonably in enacting this ban, first and foremost because the ban is designed to keep students safe on the District property,” Gundrum wrote.

    That Klosterman had neither been criminally charged nor had his teaching license revoked was immaterial, Judge Gundrum explained.

    “By the time a person has been convicted of a crime, harm has long since already occurred,” Gundrum wrote. “The board need not wait for such harm to its students (and the civil lawsuits against the District which would likely follow).”

    Judge Gundrum also pointed out that the school district’s ban of Klosterman was not total. Klosterman could enter district property with the permission of the superintendent or the district’s human resources director, Gundrum noted, but there was no evidence in the record he had asked for permission.

    Dissent: Majority ‘Opens Wide a Door’

    In her dissent, Judge Grogan acknowledged that section 120.13 grants school boards broad authority and that section 118.001 requires that authority to be broadly construed. But neither statute, she argued, gives a school board unfettered discretion.

    “Without fully analyzing Wis. Stat. section 120.13 … the majority blithely expands the Board’s statutory authority far beyond the statute’s text and opens wide a door through which any school board could take any action to exert authority indefinitely over any person in regard to his presence on school property (not just school buildings) under the guise of it being related to the promotion of education,” Grogan wrote.

    Grogan argued that the majority had cherry-picked facts from the record to support its decision, omitting many that cast Klosterman in a good light. She also argued that the board failed to show that it was reasonable to ban Klosterman as a matter of law.

    “Instead, in relying on case law not involving school boards and failing to meaningfully apply the summary judgment standard of review, it simply rubber stamps the Board’s decision,” wrote Judge Grogan of the majority’s opinion.

    Grogan pointed out that the evidence against Klosterman was flimsy.

    “Despite Peeters’ apparently extensive and exhaustive investigation, the District could not locate a single student who felt uncomfortable receiving hugs or other physical contact from Klosterman,” Judge Grogan wrote. “Not one. After teaching for thirteen years, no purported victim came forward to accuse Klosterman. There is no evidence any child was harmed.”

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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