April 17, 2021 marks the start of the turkey hunting season in Wisconsin. The season kicks off with a special youth hunting weekend during which those who are 15 years of age or younger are permitted to hunt, provided they are accompanied by an adult and hold a valid license, stamp, and harvest authorization. The weekend helps stimulate interest in hunting at a young age, while developing responsible hunters. At the close of the youth hunting weekend, the spring turkey hunt opens to all hunters on April 21, 2021. This article serves as an important reminder to Wisconsin school districts: advise students and their parents and guardians that student possession of any firearm on school property or while under the supervision of a school authority triggers mandatory disciplinary proceedings.
The Wisconsin Department of Public Instruction (DPI) mission on educational equity seeks to ensure that “[e]ach student attends a school that authentically engages with families [and] communities.” For many families and communities, hunting represents sport, a pastime, and/or a means of putting food on the table. As this new hunting season approaches, school districts will be faced with the challenge of supporting an activity engaged in by many Wisconsinites[i], while ensuring that the activity does not impact the education of its students.
Wisconsin Statute Section 120.13(1)(bm) provides the following:
The school district administrator or any principal or teacher designated by the school district administrator shall suspend a pupil… if the school district administrator, principal or teacher determines that the pupil, while at school or while under the supervision of a school authority, possessed a firearm, as defined in 18 USC 921 (a) (3). (emphasis added).
Federal law defines “firearm” as “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device [such as a bomb, grenade].”
School district administrators may suspend a pupil for not more than 5 school days, unless a notice of expulsion hearing has been sent, in which case the student may be suspended for a total of 15 school days. See Wis. Stat. § 120.13(1)(b)2. Under Wis. Stat. § 120.13(1)(c)2m, school boards must commence expulsion proceedings when a student possesses a firearm on school property or while under the supervision of a school authority. That section specifically states:
[A] school board shall commence proceedings under subd. 3. and expel a pupil from school for not less than one year whenever it finds that the pupil, while at school or while under the supervision of a school authority, possessed a firearm, as defined in 18 USC 921 (a) (3).[ii] (emphasis added).
The language of Wis. Stat. § 120.13(1)(c)2m states that the “school board shall commence proceedings… and expel a pupil… for not less than one year”. The statute section does not contain the language from Wis. Stat. § 120.13(1)(c)3 regarding the school board’s authority to decide not to expel. However, school boards do have the authority to stop short of expulsion. Wisconsin Statute § 120.13(1)(g) provides school boards with the authority to modify the mandatory one-year expulsion requirement “on a case-by-case basis.”
In the expulsion decision Alexander P. by Oak Creek Franklin School District, No. 372 (11/23/1998), the DPI, by the State Superintendent, held that Wis. Stat. § 120.13(1)(c)2m obligates a school board to commence expulsion proceedings any time a student has a firearm at school.
The case in Alexander P. presented a circumstance that warranted expulsion: multiple students reported and Alex later confessed to an incident in which Alex pulled out a gun at Shorewood High School, cocked the weapon, and pointed it at another student. Alex acknowledged that he was trying to threaten the student. He withdrew from Shorewood prior to the school board commencing expulsion proceedings. Alex enrolled in the Oak Creek Franklin School District.
Upon his enrollment, the Oak Creek Franklin School Board (Board) commenced expulsion proceedings related to the incident at Shorewood. The Board expelled Alex relying on the mandatory expulsion requirement of state law due to a firearm possession at school and because nothing in state or federal law prevented (or currently prevents) a student’s new school district from commencing such proceedings if the previous district did not do so. The State Superintendent upheld the decision.
School districts and boards, should be cautioned that not all cases present the degree of threat imposed by Alex. Instead, many school boards have been and will be faced with circumstances that are more sympathetic towards the student. For example, upon returning home from hunting, a student may forget to remove a hunting-approved firearm from his/her vehicle before going to school. Such was the case in the expulsion decision, Eric H. by the Central/Westosha Union High School District Board of Education, No. 377 (1999). In that circumstance, Eric left a cased and unloaded hunting-approved firearm in his vehicle after a morning duck hunt. Although Eric did not intend to remove the firearm from his vehicle while at school nor threaten anyone with it, the incident led to Eric’s expulsion – a decision upheld by the State Superintendent on the grounds of “zero tolerance.”
The Eric H. case presents an important point. Unlike the federal and state Gun-Free Schools Acts, the Wisconsin mandatory-expulsion law does not create an exception for properly stored and approved weapons in vehicles. Federal law, 20 U.S.C. § 7961, provides the following:
Nothing in [the Gun-Free Schools Act] shall apply to a firearm that is lawfully stored inside a locked vehicle on school property, or if it is for activities approved and authorized by the local educational agency and the local educational agency adopts appropriate safeguards to ensure student safety.
Wisconsin’s Gun-Free Schools Act creates a parallel exception, under Wis. Stat. § 948.605(2)(b)3. While these provisions provide for defenses to criminal liability, they do not absolve school boards of the requirement to commence expulsion proceedings.
The Eric H. case also illustrates why some school boards may choose to provide an apologetic and unintending student the benefit of the doubt, opting not to expel the student. Other school boards, however, may abide by a “zero-tolerance” policy like in Eric H.. In either circumstance, the expulsion hearing is required and will likely be traumatic for the student required to face it and be impactful on the school board members required to hold it.
School districts can play an important role in limiting these hearings by finding ways to remind students about hunting responsibly and in particular about the restrictions regarding firearm possession on school grounds regardless of the reason for having the firearm. Even in a district that may choose not to expel, the process of an expulsion hearing is undesirable and serves as its own adverse consequence.
If an expulsion hearing is required, the hearings must be held in compliance with the steps provided in Wis. Stats. §§ 120.13(1)(c)3 and 120.13(1)(c)4.
Wisconsin Statute § 120.13(1)(c)4 requires that (1) a student and his/her parent or guardian, if the student is a minor, receive notice of the proceeding and (2) that notice must contain the specific information outlined in paragraphs a. through L.
Wisconsin Statute § 120.13(1)(c)3 requires that the school board hold a hearing before expelling a student. The statute states that the hearing may be held in closed session upon the request of the student and his/her parent or guardian, if the student is a minor; however, the school board may and typically does choose to hold the hearing in closed session even if not requested by the student or parent.
At the hearing, the student and his/her parent or guardian, if the student is a minor, may be represented by counsel at no expense to the District, the school board must keep written minutes, and the student or parent is permitted to present witnesses and/or evidence as well as to examine witnesses and/or documents presented by school administration. The conduct of the hearing is not directed by statute, but is rather left to the school board to manage. If the school board orders expulsion, it must mail a copy of the expulsion order to the student and his/her parent or guardian, if the student is a minor. Expulsion orders may be appealed at any time after the order is entered by requesting review from the State Superintendent and afterwards if desired appealed to the court system.
[i] According to the US Fish and Wildlife Service, in 2002, Wisconsin ranked first among all states in the number of residents with hunting licenses, tags, permits and stamps. https://www.fws.gov/wsfrprograms/Subpages/LicenseInfo/Natl%20Hunting%20License%20Report%202020.pdf
[ii] Neither Wis. Stat. § 120.13(1)(bm) nor Wis. Stat. § 120.13(1)(c)2m applies to the possession of a firearm while legally hunting in a school forest, when permitted under Wis. Stat. § 120.13(38).
For questions regarding this article, please contact the author,
or your Renning, Lewis & Lacy attorney.
Laura E. Pedersen
lpedersen@law-rll.com | (844) 626-0909
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