Already during the 2021-2022 school year, students’ return to regular in-person instruction from hybrid and virtual instructional programming seems to have increased the incidence of student misconduct leading to expulsion. As a result, we are using this Legal Update to provide a refresher on some of the necessary student expulsion procedures for school district administrators and school board members.
Initial and Extended Out of School Suspensions. Under Wisconsin Statute § 120.13(1)(b)2., school district administrators may suspend a student out of 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. However, school districts may extend a student’s out-of-school suspension by an additional ten (10) school days, for a total of fifteen (15) school days, but only if the school district sends a notice of expulsion hearing. Thus, school districts intending to refer a student for expulsion should issue the notice of expulsion hearing before the fifth (5th) day of the suspension, or the student will be entitled to return to school.
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) of the expulsion hearing’s time, date, and location, the statutory grounds for seeking expulsion, the particulars of the alleged conduct, that the hearing may result in the student’s expulsion, and the statutes related to student expulsions. 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 advise the student and parent(s) of their appeal rights if the school board orders expulsion. The Notice of Expulsion Hearing must state that student or parent(s) may appeal an expulsion order to the State Superintendent with the Department of Public Instruction (DPI), that DPI will review the expulsion and approve, reverse or modify the order within sixty (60) days, and that the school board’s order will remain in effect during the appeal. The Notice of Expulsion must also state that 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(s) and parent(s) live at the same address. When counting days, the school district must exclude the day it sends notice, but may include the day of the hearing. 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) followed by the hearing, which includes the receipt of testimony, documentation, argument, and a recommendation regarding the expulsion’s length and what, if any, conditions apply for the student’s 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 it meets the statutory criteria for expulsion, then the school board must 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. However, the conditions must 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.
Once the school board has concluded its deliberations, the school board must take action if it intends to expel the student. 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 Federal laws and Wisconsin law, 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. Further, a school district must conduct a manifestation determination review before making a disciplinary change of placement.
The change of placement and manifestation determination requirements further complicate the expulsion timeline. For special education students, the school district must convene the expulsion hearing within ten (10) school days of the suspension, rather than fifteen (15) to avoid causing a disciplinary change of placement. Further, the school district must convene a manifestation determination review meeting within ten (10) school days of the school district’s decision to seek a disciplinary change of placement. Thus, 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.
The relevant members of a student’s Section 504 team or Individualized Education Program (IEP) team conduct the manifestation determination review. 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 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. Conversely, if the team concludes that the misconduct was not a manifestation of the student’s disability, the school district may proceed with expulsion.
Conclusion. Adopting and following clear procedures that comply with Wisconsin law is essential to ensuring that DPI will uphold a school board’s expulsion. Superintendents should review their expulsion procedures with administrators to ensure they are familiar with the requirements and can fulfill them if a student’s misconduct warrants expulsion.
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or your Renning, Lewis & Lacy attorney.