School Expulsions: Not all are Equal
What happens to a student facing expulsion
depends upon whether the student is in regular or special education. It
also may depend upon whether the student's lawyer is aware of the
interplay between special education law and a school board's expulsion
power.
by Alison Julien & Patricia Enge
John
is an eighth-grade student in public school. His teacher sends him to
the principal's office after seeing John writing names on a sheet of
paper with the words "kill list" across the top. When questioned by the
teacher, the students on the list verify that there has been some
teasing and pushing between John and these students. During his meeting
with the principal, John admits that he wrote the list in an effort to
stop the teasing but denies any intention of hurting anyone. The
principal, however, calls John's mother, tells her that John is
suspended, and asks her to pick up John from school. When John's mother
arrives, the principal informs her that he plans to begin expulsion
proceedings. The next day, John and his parents receive certified
letters stating that John has been suspended for the next 10 days, and
that the expulsion hearing is scheduled for the following week. After
reading the notice, John's mother contacts a lawyer.
What happens to John will depend upon whether he is in regular
education or special education. It also may depend upon whether his
attorney is aware of the interplay between special education law and the
school board's expulsion power.
The number of expulsions in Wisconsin schools has more than tripled
since the 1991-1992 school year.1 Because of this
dramatic increase, more attorneys are likely being called on to
represent students and parents in expulsion proceedings. What many
lawyers may not know, however, is that expulsion law differs
dramatically when dealing with special education students.
Although it is not possible to describe the entire reach of special
education law or school disciplinary procedures within the scope of this
article, this article describes the impact of special education law on
an expulsion proceeding so that practitioners are better prepared to
advise clients. To illustrate the process, the article considers what
would happen to John under three different scenarios.
Expulsion - Regular Education
The simplest scenario from a procedural standpoint is that John is a
regular education student. He has average grades, and although he has
been sent to the office occasionally, he has never been suspended.
Neither his teachers nor his parents consider him to be a behavior
problem, and he has no record of violent, aggressive, or threatening
behavior.
Section 120.13 of the Wisconsin Statutes governs school boards'
expulsion power.2 A school board may expel a student
for repeated refusal or neglect to obey school rules, for threatening to
destroy school property with explosives (or providing false information
about an alleged threat), or for endangering or threatening to endanger
the property, health, or safety of others.3 In
addition, children older than 15 may be expelled for repeated conduct
that disrupts the school's ability to maintain order or an educational
atmosphere at school or at school-sponsored activities.4
A school may suspend a regular education student for no more than
five consecutive days unless it sends a notice of expulsion hearing.5 If it sends a notice of expulsion hearing, the school
may suspend the student for no more than 15 consecutive school days.6 The notice of hearing must be sent to the student and to
the student's parents, and it must specify the student's procedural
rights.7
Generally, the expulsion hearing is held before the school board,
which typically is represented by counsel.8 The school
district may be represented by separate counsel to serve as prosecutor,
but more often a school administrator fills that role. Although an
expulsion hearing does not mirror a trial, there are certain procedural
mandates: students may be represented by counsel, the board must keep
minutes and issue a written order, and the student may appeal the
expulsion order.9 These procedural requirements are important because
the superintendent's review on appeal of an expulsion hearing is limited
to ensuring that the school board followed them.10
The limited appellate review makes it critical for counsel to be well
prepared for the hearing. Hearings generally involve two issues:
1) whether the student's behavior falls within one of the statutory
criteria permitting expulsion, and 2) what penalty is appropriate.
In some ways, expulsion hearings are very similar to trials, as counsel
for the student may present witnesses, including character witnesses,
and introduce relevant documents.
Defending expulsion hearings, however, presents some unique
difficulties. Because a school board is permitted to base its expulsion
decision, at least in part, on hearsay,11 counsel's
ability to cross-examine is somewhat limited. In addition, most often a
student will have already given a statement to school personnel before
parents retain an attorney, which makes the liability portion of the
proceeding difficult to defend. Finally, the nature of the school
setting itself affects some defenses, such as a defense based on the
First Amendment. Schools may prohibit speech that is lewd, vulgar, or
profane.12 They also may regulate speech that would
"substantially disrupt school operations or interfere with the right of
others."13 Thus, a First Amendment defense that may
succeed in another setting might not be viable in an expulsion
proceeding.
Because of the difficulty defending expulsion cases, the hearing's
penalty portion is very important. The board can consider the student's
entire behavioral record for this phase of the hearing. Because there is
no statutory limit on the duration of a student's expulsion, students
can be expelled through their twenty-first birthdays. If a student is
expelled, no other school district is required to enroll the student
during the expulsion.14 Due to the compulsory
attendance law, however, expelled students must continue their
education, either through private school, home schooling, or
correspondence school. These options often are expensive or onerous for
parents to implement.
Thus, as part of counsel's preparation for hearing, it is important
to ask the district the length of expulsion it plans to recommend to the
school board and whether the child might be eligible for early
reinstatement. Some districts allow students to withdraw in lieu of
expulsion. These are subjects worth addressing with the district in most
cases.
In John's case, because John already admitted that he wrote the list,
the issues would be whether the "kill list" was a threat to endanger the
health or safety of others and, if so, what the appropriate length of
expulsion would be. The administration likely will establish that some
students feared for their safety because of John's actions. Thus, the
board probably would conclude that John's conduct threatened to endanger
the safety of other students, a proper basis for expulsion. Despite
John's good prior record, because the threat involved violence and
because of the rash of recent, well-publicized school shootings, if John
is a regular education student, he could expect to be expelled for a
significant time unless he is able to reach a settlement with the
district.
Expulsion - Special Education
The expulsion scenario becomes a bit more complicated if special
education law is involved. The Individuals with Disabilities Education
Act (IDEA)15 and its state counterpart, Wis. Stat.
Chapter 115, provide protections to special education students that do
not extend to students in regular education. These protections are given
to two classes of students: those who previously have been identified as
eligible for special education, and those who may be eligible, but have
not yet been identified.
Students Already Identified
Alison Julien, Univ. Pittsburgh 1994,
is an assistant professor of legal writing at Marquette University Law
School. She practiced in special education law, expulsion, and
litigation at Schott, Bublitz & Engel S.C., Brookfield, where she
remains of counsel.
Patricia
Engel, U.W. 1988, is a shareholder with Schott, Bublitz &
Engel S.C. A former special education teacher, she practices in special
education law, expulsion, and civil litigation.
Assume that John is no longer a regular education
student. Instead, he was found eligible to receive special education
services under the category of emotional disturbance approximately a
year before the incident. His eligibility is based upon an emotional
disturbance; he has been diagnosed with anxiety, depression, and a mood
disorder. The rest of the facts remain the same;
namely, John is facing expulsion because he wrote the "kill list."
Special Education: An Introduction. For the most
part, the expulsion procedures outlined for regular education students
are the same for children in special education. The differences lie in
the procedures that happen before the expulsion hearing, the parents'
rights to challenge district decisions, and the services provided
post-expulsion.
The differences stem from the school's inability to unilaterally
change a special education student's placement. Every child in special
education has an individualized education program (IEP) prepared by the
district staff and the child's parents (the IEP team). The IEP
specifies, among other things, the student's educational goals and the
special services the student will receive. After preparing the IEP, the
team determines the child's placement, or where the services will be
delivered. Placement is driven by the child's needs as reflected in the
IEP. In general, any placement changes must be made by the IEP team, and
any change in a child's placement triggers additional procedural
protections.
These principles are important in the disciplinary setting because
any removal from school for more than 10 consecutive days, including an
expulsion, constitutes a change in the student's educational
placement.16 Thus, when the district contemplates
expulsion, additional procedural protections take effect. These include
additional notice requirements, the right to a manifestation
determination, the right to request a due process hearing, the child's
right to "stay put" in the educational placement during the hearing, the
child's right to receive educational services for every removal that
exceeds a total of 10 cumulative days in a school year, and the child's
right to receive educational services even if expelled.
Notice and Manifestation Determination. When the
district decides to expel a special education student, in addition to
the standard notice of expulsion, the district must provide the parents
with notice of its decision and with notice of the parents' procedural
rights and protections under special education law.
The district also must convene the student's IEP team to assess the
child's behavior and, if necessary, to modify the child's IEP to include
appropriate behavioral interventions.17 The IEP team
also is required to consider the relationship between the child's
behavior and the child's disability;18 this is known
as the manifestation determination. The manifestation determination must
be made within 10 days after the date the district decided to seek
expulsion.19 The manifestation determination is a
critical step in the process because if the child's behavior was a
manifestation of the child's disability, the child cannot be
expelled. Only if the behavior was unrelated to the disability may the
district proceed with the expulsion.20
To determine whether the behavior was a manifestation of the child's
disability, the IEP team must review all relevant information, including
evaluation and diagnostic results, observations of the child, and the
child's IEP and placement. The team may find that the behavior was
not a manifestation of the child's disability only if:
- the child's IEP and placement were appropriate and the services
called for in the IEP were provided, consistent with the IEP and
placement;
- the child's disability did not impair the child's ability to
understand the impact and consequences of his or her behavior; and,
- the child's disability did not impair the child's ability to control
the behavior.21
If the team does not find that all three of these standards existed,
it must conclude that the child's behavior was a manifestation of his or
her disability,22 and the district cannot expel the
child. Instead, the IEP team must consider whether the child's IEP or
placement should be revised to more effectively address the child's
behavior.23
If, however, the team determines that the behavior was not a
manifestation of the child's disability, the district may discipline the
child in the same manner that it would discipline a nondisabled student,
including expulsion.24
Appeal: "Stay Put" Placement. If the district
concludes that the student's behavior was not a manifestation of his or
her disability, the parents may request a hearing.25
This is an appeal to the Department of Public Instruction, which
appoints an administrative law judge to hear the case. The hearing must
be expedited,26 and the burden of proof lies on the
school district.27 While the appeal is pending, unless
the parent and the district agree otherwise, the child is entitled to
remain in his or her current educational placement, known as the "stay
put" placement.28 Accordingly, the child cannot be
expelled until the hearing is completed, and only then if the district's
decision is affirmed.
Interim Alternative Educational Setting. In limited
circumstances a school may unilaterally change a student's placement
even if the student is in special education. If a special education
student brings a weapon or drugs to school, school officials may
unilaterally remove the child to an interim alternative educational
setting for up to 45 days.29 In addition, if the
school believes that a child is likely to injure himself or others, the
school may ask an administrative law judge to order placement in an
interim alternative setting for up to 45 days.30 The
district may request subsequent extensions for 45 days at a time if it
continues to believe that the child would be substantially likely to
injure himself or others if he remains in his regular placement.
Services After Expulsion. Perhaps the most critical
distinction between regular education students and special education
students is that once a special education student has been removed from
school for more than 10 days in a school year, the district must provide
services to the child during any subsequent removal.31
There is no similar protection for regular education students. Thus,
unlike students in regular education, whose educational services
normally cease once the student is expelled, a child in special
education continues to receive educational services even after
expulsion. The student's IEP team determines the nature and extent of
those services.32 At a minimum, the school must
provide as much support and instruction as is needed for the student to
make progress in reaching his or her IEP goals, and advance through the
general curriculum.33
John's Case. Applying these legal principles to
John's case, because he was a special education student when he was
caught with the "kill list," the special education rules apply. Thus,
within 10 days of the date when the district decided to seek expulsion,
John's IEP team would be required to meet to review his IEP and consider
whether his behavior, writing a "kill list," was a manifestation of his
disability. His team would ask: 1) were John's IEP and placement
appropriate, and were services provided in accordance with the IEP;
2) did John's anxiety, depression, or mood disorder impair his
ability to understand the impact and consequences of writing the "kill
list," and 3) did John's anxiety, depression, or mood disorder
impair his ability to control his behavior?
The role of the parents' attorney is to ensure that the team has all
necessary information to assist it in answering these questions
appropriately. Thus, John's attorney would need to obtain complete
copies of John's medical and educational records. Those documents often
note problems concerning mental health, behavior, impulsivity, or
attention. The attorney also should contact John's psychologist and
psychiatrist to determine whether those doctors had relevant information
for the IEP team and whether they should attend the manifestation
determination hearing. Often doctors or other mental health
professionals have valuable information and insight into the student's
behavior, treatment regimen, and prognosis, and that information may
prove very beneficial when considering the interplay between the
student's behavior and his or her disability. If John's doctors were
able to explain that any of his medical conditions impaired his ability
to understand the consequences of his actions or, more likely, impaired
John's ability to control his actions, the IEP team would be more likely
to determine that John's conduct was a manifestation of his
disability.
The importance of involving the student's private treatment providers
was underscored in [Student] v. Richland School District.34 In that case, a student with a learning disability was
involved in a vandalism incident. His IEP team considered the
relationship between his disability and his conduct and concluded that
the vandalism was not a manifestation of the student's learning
disability. What the team ignored, however, were facts raised by the
student's mother, which suggested that the student also had attention
deficit disorder (ADD). The student had been repeatedly truant and had
received at least 54 behavioral referrals during high school. The
district was aware of his behavioral problems but did not evaluate him
to determine whether he qualified for special education services under
the categories of "emotional disturbance" or "other health impairment"
based on his ADD. It also did not consider whether the student's
behavior was a manifestation of his ADD.
On appeal, the parents presented evidence from the child's
psychologist. She testified that the student's behavior was not a
manifestation of his learning disability, but it was a manifestation of
his ADD and his mood disorder. She explained that although his
disabilities did not prevent him from knowing the consequences of his
behavior, they did cause him to have difficulty controlling his
behavior. On the basis of this testimony, the ALJ concluded that the
district had not met its burden of proof, reversed the manifestation
determination, and set aside the expulsion.
Thus, assuming that John's doctors could provide helpful information
to the IEP team, John's attorney would want to ensure their
participation in the IEP meeting, either in person or by phone. At a
minimum, a letter from the doctor responding to the questions the team
is charged to answer should be provided to the IEP team.
The attorney also should consider consulting an educational expert.
The IEP team's first determination is whether the child's IEP and
placement were appropriate, and whether services were provided in
accordance with the IEP. If the IEP and placement were inappropriate,
the team must conclude that the behavior was a manifestation of the
disability. Thus, John's attorney would want to contact educational
experts for input on the appropriateness of the IEP and placement.
Under these facts and with the input of John's health care providers,
the IEP team probably would conclude that John's conduct was a
manifestation of his disability. Thus, he could not be expelled.
Instead, John would continue to receive educational services in the
placement deemed appropriate by his IEP team.
Students Not Yet Identified
The most complicated fact pattern arises when the
student has a disability that might qualify him or her to receive
special education, but the student has not yet been identified by the
district as a student who qualifies for special education.
For example, assume that John received good grades through his
sixth-grade year, but during seventh and eighth grade he struggled to
maintain a "D" average. He has normal intelligence but is having
problems in school. In the last two years he had three behavioral
referrals for fighting, and he had two more for swearing at his teachers
in the classroom. John's parents became concerned about John's anger and
outbursts at home. John's teacher and parents shared their mutual
concerns about his escalating behavioral problems during parent/teacher
conferences. John's parents also took him to see a psychologist, who
diagnosed him with anxiety, depression, and a mood disorder, and
referred him to a psychiatrist. The psychiatrist prescribed medication
for him. John's parents provided all of this information to the school
and arranged for school personnel to administer John's medication during
the school day. The incident with the "kill list" happened just before
John switched to a new medication, which seems to be helping to
stabilize his mood.
Under these facts, even though John has not yet been identified as a
child with a disability, he may be able to use the protections provided
for special education students. A child who has not been found eligible
to receive special education nonetheless may assert the protections
provided to special education students if the school district had
knowledge that the student was a child with a disability before the
behavior took place. A district is deemed to have had the requisite
knowledge if:
- the child's parent expressed concern in writing to school personnel
that the child was in need of special education and related
services;
- the child's behavior or performance demonstrated the need for
special education and related services;
- the child's parent requested a special education evaluation; or
- the child's teacher or other district personnel expressed concern
about the child's behavior or performance to the director of special
education or other appropriate district personnel.35
The district will not be deemed to have had knowledge if it conducted
an evaluation and concluded that the child was not eligible to receive
special education, or if it determined that an evaluation was
unnecessary, and it provided notice of its determination to the child's
parents.36
Lack of Knowledge. If the district has no basis of
knowledge that the student had a disability when the behavior occurred,
it may expel the student in the same manner as it would any regular
education student.37 If the district asserts lack of
knowledge, however, the parents nonetheless may request a special
education evaluation to determine the child's eligibility, and the
district must conduct an expedited evaluation.38 The
"stay put" protection does not apply, so the district may suspend or
expel the student without educational services during the evaluation
process.39 If, at the conclusion of the evaluation,
the child is determined to be eligible for special education, the child
is entitled to all of the protections for special education students,
including the right to a manifestation determination, educational
services, and due process procedures.40 This means
that if the child was expelled, the child either must be reinstated if
the IEP team determines the behavior was a manifestation of the child's
disability, or the child must receive educational services during the
term of expulsion if the team determines there was no manifestation of
the disability.
John's Case. Although John's parents have orally
expressed concerns to teachers, they have not put their concerns in
writing or requested a special education evaluation. (This often is the
case, as many parents are unaware of their right to request an
evaluation or the availability of special services.) Thus, John's
parents must rely upon his behavior or performance to show that the
district had knowledge that John had a disability before the incident.
To prove knowledge based upon the child's behavior, John's attorney must
review his records and interview John's parents and possibly John.
Information concerning behavior often is in the student's cumulative
education file. Documents sent home to parents such as progress reports,
homework assignments, or tests may have helpful teacher notations as
well. Teachers or administrators also may have made statements to John
or his parents regarding their concern about John's behavior and its
negative impact on his education.
In John's case, his school records show a decline in grades and a
corresponding increase in behavioral referrals for fighting and verbal
outbursts. In addition, John's parents and teachers shared information
about increased behavioral problems at home and in school.
John's medical records also are relevant, as they should document
John's diagnoses of anxiety, depression, and a mood disorder.
Importantly, they also may document communications between his doctors
and the school that can be used to prove district knowledge.
Based on the information John's school had concerning his behavior at
home, his disciplinary record at school, his academic decline, and his
medical diagnoses, counsel would have a solid argument that the district
had sufficient knowledge to suspect a disability and should have
evaluated John for special education. Counsel should raise that issue
with the district and request all of the special education protections
described above.
If the district lacked knowledge, it could proceed with the expulsion
hearing. In that event, counsel immediately should request an expedited
evaluation. While the district was conducting the evaluation, it would
be entitled to determine John's placement, including expulsion without
educational services. If John eventually were found eligible for special
education, he would be entitled to all of the procedural protections
under special education law, including a manifestation determination and
the right to receive educational services even if expelled. If he was
found ineligible, the parents would have the right to challenge that
finding at a due process hearing.
Conclusion
An attorney's knowledge about the implications of special education
law when representing students in school expulsion hearings may be
critical to the outcome of the proceeding. In the best-case scenario, an
expulsion might be avoided altogether by invoking the protections under
special education law. At the very least, however, students with
disabilities will receive educational services during the term of their
expulsions, a right not afforded all students.
Endnotes
1
School Discipline - Expulsions, Education at a Glance (State of
Wisconsin, Department of Public Instruction) April 1999, available at
<http://www.dpi.state.wi.us>.
2 Wis. Stat. § 120.13
(1999-2000).
3 Wis. Stat. §
120.13(1)(c)1 (1999-2000).
4 Wis. Stat. §
120.13(1)(c)2 (1999-2000).
5 Wis. Stat. §
120.13(1)(b)2 (1999-2000).
6 Id.
7 Wis. Stat. §
120.13(1)(c)4 (1999-2000). For purposes of this article, it is assumed
that the student is a minor.
8 Wis. Stat. §
120.13(1)(c)3 (1999-2000).
9 Wis. Stat. §
120.13(1)(c)3 (1999-2000).
10 Racine Unified Sch.
Dist. v. Thompson, 107 Wis. 2d 657, 667, 321 N.W.2d 334, 339 (Ct.
App. 1982). The language limiting the superintendent's review to
ensuring that procedural mandates were followed was actually dicta.
Despite that fact, however, subsequent state superintendents have cited
that dicta as defining their scope of review. In addition, the
limitation on the superintendent's power of review has survived
subsequent legislative changes. Thus, in 1995 the court of appeals
declared that the "Racine dicta is embedded in Wisconsin school
law." Madison Metro. Sch. Dist. v. Wis. Dep't of Pub.
Instruction, 199 Wis. 2d 1, 17, 543 N.W.2d 843, 849 (Ct. App.
1995).
11 Racine Unified Sch.
Dist, 107 Wis. 2d at 664, 321 N.W.2d at 337-38.
12 Bethel Sch. Dist. No.
403 v. Fraser, 478 U.S. 675 (1986).
13 Saxe v. State Coll. Area
Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001).
14 Wis. Stat. §
120.13(1)(f) (1999-2000).
15 20 U.S.C. §§
1400-1487 (1994 & Supp. V 1999).
16 34 C.F.R. § 300.519
(2000).
17 20 U.S.C. §
1415(k)(1)(B)(1994 & Supp. V 1999); 34 C.F.R. § 300.520(b)(1)
(2000).
18 20 U.S.C. §
1415(k)(4) (1994 & Supp. V 1999); 34 C.F.R. § 300.523(a)
(2000).
19 20 U.S.C. §
1415(k)(4)(A) (1994 & Supp. V 1999); 34 C.F.R. § 300.523(a)(2)
(2000).
20 20 U.S.C. §
1415(k)(5) (1994 & Supp. V 1999); 34 C.F.R. § 300.524(a)
(2000).
21 20 U.S.C. §
1415(k)(4)(C) (1994 & Supp. V 1999); 34 C.F.R. § 300.523(c),
(d) (2000).
22 34 C.F.R. §
300.523(d) (2000).
23 34 C.F.R. §
300.523(f) (2000).
24 20 U.S.C. §
1415(k)(5)(A) (1994 & Supp. V 1999); 34 C.F.R. § 300.524(a)
(2000).
25 20 U.S.C. §
1415(k)(6)(A)(i) (1994 & Supp. V 1999); 34 C.F.R. § 300.525(a)
(2000).
26 20 U.S.C. §
1415(k)(6)(A)(ii) (1994 & Supp. V 1999); 34 C.F.R. §
300.525(a)(2) (2000).
27 20 U.S.C. §
1415(k)(6)(B)(i) (1994 & Supp. V 1999); 34 C.F.R. §
300.525(b)(1) (2000); see also [Student] v. Richland Sch.
Dist., DHA Case No. LEA-00-007 (Wis. Div. Hearings & Appeals,
March 3, 2000) (DPI).
28 34 C.F.R. §§
300.514, 300.524(c) (2000).
29 20 U.S.C. §
1415(k)(1)(A)(ii) (1994 & Supp. V 1999); 34 C.F.R. §
300.520(a)(2) (2000).
30 20 U.S.C. §
1415(k)(2) (1994 & Supp. V 1999); 34 C.F.R. § 300.521
(2000).
31 34 C.F.R. §
300.520(a)(1)(ii) (2000).
32 34 C.F.R. §
300.121(d)(3)(ii) (2000).
33 See id.
34 [Student] v.
Richland Sch. Dist., DHA Case No. LEA-00-007 (Wis. Div. Hearings
& Appeals, March 3, 2000) (DPI).
35 20 U.S.C. §
1415(k)(8)(A), (B) (1994 & Supp. V 1999); 34 C.F.R. §
300.527(a), (b) (2000).
36 34 C.F.R. §
300.527(c) (2000).
37 20 U.S.C. §
1415(k)(8)(C)(i) (1994 & Supp. V 1999); 34 C.F.R. §
300.527(d)(1) (2000).
38 20 U.S.C. §
1415(k)(8)(C)(ii) (1994 & Supp. V 1999); 34 C.F.R. §
300.527(d)(2)(i) (2000).
39 20 U.S.C. §
1415(k)(8)(C)(ii) (1994 & Supp. V 1999); 34 C.F.R. §
300.527(d)(2)(ii) (2000).
40 20 U.S.C. §
1415(k)(8)(C)(ii) (1994 & Supp. V 1999); 34 C.F.R.
§300.527(d)(2)(iii) (2000).
Wisconsin
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