CAUTION:  DPI Expulsion Hearing Appeals

When reviewing expulsion appeals, the Wisconsin Department of Public Instruction (“DPI”) had historically taken the approach that a school board was in the best position to know and understand what its community required as a response to school misconduct.  Consistent with that philosophy, the DPI maintained that it was inappropriate to second-guess the school board’s determination when reviewing expulsions.  However, the DPI appears to be changing course.  The DPI recently affirmed its willingness to substitute its judgment for that of a school board by exercising its broad statutory authority to “approve, reverse or modify” a school board’s decision.  The most recent example involves the Ripon Area School District (the “District”).

In Decision and Order No. 826 (Ripon Area School District, February 14, 2023), the DPI reviewed an expulsion appeal in which the District expelled a student for (1) engaging in conduct while not at school or while not under the supervision of a school authority that endangered the property, health or safety of others at school or under the supervision of a school authority and/or (2) engaging in conduct while not at school or while not under the supervision of a school authority that endangered the property, health or safety of any employee or school board member of the school district. 

The specific allegations against the student stated:

On November 27, 2022, [the pupil] was part of a group of students who developed, supported and carried out a plan to shoot a gun at the Crossroads teacher while the teacher was in the front yard of his residence for the purpose of scaring the teacher, as admitted by [the pupil].  

Id.  (Emphasis added).

On appeal the student raised several issues that the DPI considered.  First, the student argued that the school board inappropriately accepted the testimony of administration witnesses.  The student further disputed some of the evidence introduced at the expulsion hearing.  The DPI rejected these grounds for appeal, citing long-standing precedent that “[a]rguments concerning the sufficiency of the evidence are generally beyond the scope of review.”  Ultimately, the DPI concluded that a reasonable view of the evidence in the case supported the school board’s findings regarding the harm suffered by the teacher and others in the school community. 

Second, the student argued that the principal, vice principal and teacher did not take the expulsion proceedings seriously.  In general, the student alleged that that these individuals made a mockery of the proceedings.  The DPI concluded that even if true, the allegations would not be a basis for reversal of the expulsion without a specific procedural violation.

Third, the student argued that the school board’s decision was biased – contending that the school board was not open to anything the student presented at the hearing and that the school board members made their decisions to expel prior to hearing the evidence.  The DPI again cited long-standing precedent that “[a]s public officials, school board members are presumed to act in accordance with the duties of their office and act fairly, impartially and in good faith.”  The DPI concluded that the record did not contain anything suggesting the school board members prejudged the matter and that no evidence existed to overcome the presumption that the school board members acted fairly, impartially and in good faith.

That being said, the DPI determined that statutory violations not raised by the student as part of the student’s appeal required reversal of the expulsion.  Specifically, the DPI concluded that the Notice of Expulsion Hearing failed to comply with the statutory requirements.

First, the DPI concluded the Notice of Expulsion Hearing failed to state “the particulars of the pupil’s alleged conduct upon which the expulsion proceeding [was] based.”  Specifically, the DPI concluded no reasonable view of the evidence supported the allegation or finding that a gun, as opposed to a toy gun, was used.

In support of its conclusion, the DPI outlined what constitutes “adequate notice” of the allegations so as to allow a meaningful opportunity for students to prepare for the hearing and be heard.  Specifically, the DPI defined “adequate notice” as notice that informs the student of the time frame during which the misconduct occurred, where the misconduct occurred and a description of the conduct to be considered (detailed information about the conduct, not simple generalizations).

The student admitted engaging in the conduct as alleged; nonetheless, the DPI concluded that the Notice of Expulsion Hearing failed to provide the time the alleged misconduct occurred and did not adequately describe the alleged conduct.  As to the lack of particulars of the alleged misconduct, the DPI stated:

For example, the notice does not name “the Crossroads teacher” and, therefore, failed to adequately describe the teacher.  The notice also fails to adequately describe what the pupil did, such as driving a car by the teacher’s house, or how he participated in the “group of students who developed, supported and carried out a plan.”  Finally, the notice mischaracterizes the gun, by failing to specify that it was a toy or cap gun. 

Id.  In support of its conclusion that the District failed to provide the particulars of the alleged misconduct, the DPI further stated:

In this case, the notice and the order described “a plan to shoot a gun” but the undisputed evidence at the hearing was that the “gun” was a toy gun or a cap gun.  Although there was evidence introduced that the teacher, at least initially, thought it was a real gun, there was no evidence introduced that the pupil thought the gun was anything other than a toy gun or that the pupil was involved in a plan to shoot a real gun.  A toy or cap gun is materially different than a gun.  A notice or finding regarding “a plan to shoot a gun” can only reasonably understood to refer to a non-toy gun.  No reasonable evidence supports a finding that the pupil was involved in developing, supporting or carrying out a plan to shoot a gun at a teacher.

Id.  Additionally, the DPI cited, in support of its decision to reverse the expulsion, the fact that Wis. Stat. § 120.13(1)(c)4.d. provides that the Notice of Expulsion Hearing must state, “[t]hat upon request of the pupil and, if the pupil is a minor, the pupil’s parent or guardian, the hearing shall be closed.”  In this case, the Notice of Expulsion Hearing stated:  “[u]pon the pupil’s request, and if the pupil is a minor, upon the request of the parent(s) or guardian(s), the hearing shall be closed unless a request is made to hold the hearing in public. . . .”  (Emphasis added).  Albeit the expulsion hearing was held in closed session, the DPI concluded this constituted an additional ground for reversal of the expulsion.

The DPI reversed the expulsion because the DPI concluded the District did not comply with all of the procedural requirements (albeit the student admitted engaging in the conduct as alleged and the grounds upon which the DPI reversed were not raised as issues by the student).  That being said, the DPI stated:

This decision does not condone the pupil’s conduct, nor does it suggest that the school board’s decision was inappropriate.  However, I must uphold the requirements set forth in the statutes.  If the school district chooses, it may remedy the procedural errors by providing proper notice of the expulsion hearing and rehearing the expulsion.

In short, school districts should take caution to ensure that Notices of Expulsion Hearing contain, at a minimum, the following so as to avoid the effort, time and cost that will be incurred by rehearing the expulsion:

1. The specific time frame during which the alleged misconduct occurred (e.g., not just simply during the school day, but something along the lines of: “At approximately 3:00 p.m. . . .”);
2. Where the misconduct occurred (e.g., again, not simply while at school, but something along the lines of: “In High School Classroom 110. . . .”); and
3. Detailed information about the misconduct (e.g., not just simply a gun, but something along the lines of: “A toy gun or cap gun. . . .”).

Additionally, school districts should review their Notices of Expulsion to ensure they are precise as to all statutory requirements (e.g., closed session, counsel, appeal, etc.).