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1: School Expulsions: Not all are Equal
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.
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3: Students Already Identified
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