Student discipline issues can be challenging for school districts, even at the start of a new school year. When issuing discipline, districts must adhere to prescriptive procedural requirements in state and federal laws, to ensure students receive due process. As the Department of Public Instruction continues to scrutinize district disciplinary actions, it is important for school administrators and staff to understand fundamental legal requirements related to all forms of student discipline.
Initial and Extended Out of School Suspensions. Under Wisconsin Statute § 120.13(1)(b)2., school district administrators may suspend a student from school for up to five (5) school days for violating school rules, conveying a bomb threat, engaging in conduct at school that endangers the property, health, or safety of others, or engaging in conduct outside of school that endangers the property, health, or safety of others at school. Before a suspension, the student must be advised of the reason for the suspension. The parents must also be given prompt notice of the suspension and the reasons for the suspension.
School districts may also extend a student’s out-of-school suspension by an additional ten (10) school days, for a total of fifteen (15) school days, if the school district sends a notice of expulsion hearing separately to the student and parent.
Notice of Expulsion Hearing. A school board may expel a student only for statutorily prescribed reasons. Under Wisconsin Statute § 120.13(1)(c), a school district may expel a student for repeated refusal or neglect to follow school rules, conveying a bomb threat, bringing a firearm to school, engaging in conduct at school that endangers the property, health, or safety of others, or engaging in conduct away from school that endangers the property, health, or safety of others at school, staff, or board members.
A Notice of Expulsion Hearing must include specific information advising the student and parent(s) about the hearing and their rights. The Notice of Expulsion Hearing must inform the student and parent(s) that the hearing may result in the student’s expulsion, the expulsion hearing’s time, date, and location, the statutory grounds for seeking expulsion, the statutes related to student expulsions, and the particulars of the alleged conduct. The particulars of the alleged conduct must include the date, time, location, and sufficient detail to advise the parents and student of the factual basis for the expulsion recommendation. The Notice of Expulsion Hearing must also state that the school board will keep written minutes of the hearing, and the District Clerk will mail the student and the parent(s) a copy of the expulsion order if the school board expels the student.
Additionally, the Notice of Expulsion Hearing must provide information regarding the student’s and parent’s rights, including the right to have legal counsel represent them during the hearing, and the right to demand the expulsion hearing occur in closed session. The right to demand a hearing occur in closed session does not entitle the student or parent(s) to demand an expulsion hearing occur in open session. A school board can and should hold all expulsion hearings, including the school board’s action/decision, in closed session to maintain student confidentiality.
The Notice of Expulsion Hearing must also advise the student and parent(s) of their right to appeal to the Department of Public Instruction if the school board orders expulsion and the timelines for such appeal. The Notice of Expulsion must also state that the student or parent(s) may appeal DPI’s decision within thirty (30) days to the circuit court where the school district is located.
The school district must send the Notice of Expulsion Hearing separately to the student and the parent(s) at least five (5) calendar days before the hearing. The separate mailings to the student and the parent(s) must be in separate envelopes, even when the student and parent(s) live at the same address. Many school districts utilize certified mail to prove when the notice was sent and received. However, certified mail is not required and, when used as the sole method for mailing the notice, may cause issues if the student or parent(s) refuse to accept the certified mail. Alternatively, some school districts send the notice by both certified and regular mail to ensure a copy is delivered to the student and parent(s).
Conducting the Hearing. An expulsion hearing is a meeting of the school board. Therefore, the meeting must be noticed and convened in open session in accordance with the Wisconsin Open Meetings Law. After convening the meeting in open session, the school board may move to convene in closed session for purposes of the expulsion hearing by motion and roll call vote.
Once in closed session, the school board or its legal counsel should explain the school district’s hearing procedure to the student and the parent(s) before the hearing. The hearing must include the Board receiving evidence such as testimony, documentation, argument, and a recommendation regarding expulsion, including the proposed period of expulsion and what, if any, conditions apply for the student’s early reinstatement.
School Board Deliberations. Once the hearing is complete, the school board should excuse all parties from the room for deliberations. During the deliberations, the school board must determine whether the student engaged in the misconduct alleged in the Notice of Expulsion Hearing and whether such misconduct meets the statutory criteria for expulsion. If, and only if, the school board concludes the student engaged in the alleged misconduct and the conduct meets the statutory criteria for expulsion, the school board must then determine whether the interests of the school demand expulsion.
If the school board finds that the interests of the school demand the student’s expulsion, the school board must determine the expulsion’s duration, whether the student is eligible for conditional reinstatement, and, if so, what conditions the student must meet to be reinstated. School boards have broad discretion to impose conditions on an expelled student’s early reinstatement, provided they relate to the misconduct on which the school board based the expulsion.
Additionally, a school board may only enforce reinstatement conditions while the expulsion order is effective. After an expulsion expires, the student is entitled to re-enroll in the school district without conditions. Therefore, school boards must carefully consider the expulsion’s duration and any conditions for early reinstatement.
If the Boad orders expulsion, the District Clerk must send a copy of the expulsion order to the student and the parent(s) separately. The expulsion order must include the school board’s determination that the student engaged in the alleged misconduct, that the misconduct meets the statutory grounds for expulsion, and that the interests of the school demand the student’s expulsion. The expulsion order must also identify the expulsion’s duration and any applicable early reinstatement conditions.
Students with Disabilities. Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Individuals with Disabilities Education Act (IDEA) provide additional procedural protections when an eligible student engages in misconduct that may be the basis for expulsion. Under these laws, a student’s removal for more than ten (10) consecutive school days, such as a long-term suspension or an expulsion, is considered a disciplinary change of placement.
Before a school district can issue a disciplinary change of placement, the school district must conduct a manifestation determination review with relevant members of the student’s Section 504 team or Individualized Education Program (IEP) team. The manifestation determination review team must determine whether the student’s misconduct is directly and substantially related to his or her disability and whether a failure to follow the student’s IEP or 504 plan caused the misconduct. If the team concludes that the misconduct was a manifestation of the student’s disability, the school district may not expel the student or change the student’s placement without parental approval. Conversely, if the team concludes that the misconduct was not a manifestation of the student’s disability, the school district may proceed with expulsion.
If a district issues a disciplinary change in placement (long-term suspension or expulsion) following a manifestation determination review, the District must provide services that allow the student to progress through the regular education curriculum and toward the student’s IEP goals. The student’s placement must be determined by the IEP team.
When considering a special education student’s expulsion, school districts often hold the expulsion hearing within the first ten (10) school days of suspension to avoid revising the IEP before the Board determines expulsion. Compressing the expulsion timeline for special education students means that the school district must send a Notice of Expulsion Hearing, conduct a manifestation determination review, and hold the expulsion hearing within the first ten (10) school days of a special education student’s out-of-school suspension.
Conclusion. Compliance with state and federal law is critical to ensuring effective student discipline. Superintendents should review their discipline procedures with administrators to ensure they understand the requirements and can fulfill them should a student’s misconduct warrant suspension or expulsion.
