Page 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.

Page 3: Students Already Identified