Co-author: Marcus J. Berghahn
This lecture and materials are intended as a cursory introduction into student’s rights in public schools and disciplinary proceedings. The materials are general and, hopefully, will allow you to identify issues before any disciplinary proceeding occurs. The materials and today’s discussion are not a substitute to the engagement of a competent advocate in a disciplinary proceeding.
I. The Basics
1. Review the Student Handbook with your child(ren).
You have to know the rules to make sure they are understood.
2. Contact the principal is there is discipline imposed to learn the reason why your child was disciplined. Contact the teacher or staff person who recommended the punishment. Communication can prevent your child from being a part of the suspension/expulsion process.
B. Federal Law
1. The United States Supreme Court on Public Education
a. “[E]ducation is perhaps the most important function of state and local governments.” Brown v. Board of Education, 347 U.S. 483, 493 (1954). “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” Id.
b. The “American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance.” Meyer v. Nebraska, 262 U.S. 390, 400 (1923).
c. “[T]he public schools [are] a most vital civic institution for the preservation of a democratic system of government.” Abington School District v. Schempp, 374 U.S. 203, 230 (1963) (BRENNAN, J., concurring)
d. Public education is not a “fundamental right” granted to individuals by the Constitution. San Antonio Independent School District v. Rodriguez et. al., 411 U.S. 1 (1973). This means the United States Constitution does not contain an explicit guarantee to the right to a public education.
e. Entitlement to public education has long been recognized as a property interest protected by the Due Process clause of the Fourteenth Amendment to the U.S. Constitution. Goss v. Lopez, 419 U.S. 565, 573-75 (1975).
2. The right to due process of law.
a. “School officials do not possess absolute authority over their students. Students, in school, as well as out of school, are ‘persons’ under our Constitution.” Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503, 511 (1969).
b. Under the due process clause of the Fourteenth Amendment states may not deprive any person of life, liberty, or property without due process of law.
c. The Supreme Court held that students had a property interest in education that required minimal due process protections before any disciplinary suspension could be imposed. 419 U.S. 565, 573. In Goss, the Supreme Court looked toward an Ohio State Statute providing a free public education and requiring attendance.
d. Based on Goss, therefore, students have a property interest in public education that cannot be denied or otherwise taken away through disciplinary suspension or expulsion without due process of law. 419 U.S. at 574.
e. The Goss Court held that when a student is threatened for disciplinary reasons with possible suspension and other punishments affecting access to education, the student must receive oral or written notice of the charges against him, an explanation of the facts against him, and an opportunity to present his side of the story. Id., at 581. The Court did not require that a formal hearing be held, suggesting that such a hearing would be expensive and would harm the effectiveness of the teaching process. Id., at 583.
3. An American Public School Student’s Due Process Rights Under Goss
a. The specific rights
i. Oral or written notice of the charges,
ii. An explanation of the evidence, and
iii. An opportunity to be heard.
b. The type of notice and kind of hearing, the rights accorded the student at the hearing and the formality of the hearing depend upon the nature of the charge and the seriousness of the penalty. Goss, 419 U.S. at 578-80, 584.
II. Wisconsin Law on Public Education
A. “Public education is a fundamental responsibility of the state.” Wis. Stat. § 118.01.
1. Compulsory school attendance is required for person’s having control of children between the ages of 6 and 18 years, in public or private school. Wis. Stat. § 118.15.
2. A student, or that student’s parent/guardian, can inspect and receive a copy of their pupil’s progress and behavioral records upon demand. Wis. Stat. § 118.125(2)(a) – (b).
3. A teacher may remove a student who violates the code of classroom conduct or “is dangerous, unruly or disruptive or exhibits behavior that interferes with the ability of the teacher to teach effectively, as specified in the code of classroom conduct. The teacher shall send the pupil to the school principal or his or her designee and notify the school principal or his or her designee immediately of the reasons for the removal. In addition, the teacher shall provide to the principal or his or her designee within 24 hours after the pupil’s removal from the class a written explanation of the reasons for the removal.” Wis. Stat. § 118.164(2).
4. Corporal punishment, meaning “the intentional infliction of physical pain […] as a means of discipline,” is prohibited, though there are some exceptions. Wis. Stat. § 118.31(1). The exceptions are: when physical force is needed to quell a disturbance or prevent physical injury to a person; to obtain possession of a weapon or dangerous object from a student; for self-defense; to remove a disruptive pupil; to prevent a student for causing self-harm; and using incidental, minor or reasonable contact to maintain order and control. Wis. Stat. § 118.31(3).
5. Strip searches of students by school employees are prohibited. Wis. Stat. § 118.32.
6. Student lockers may be searched without the consent or knowledge of the student, and without a search warrant, if the school board has a written policy that states: (1) the school board retains possession of the lockers, (2) designates which school employees may conduct searches, and (3) a copy of the policy has been distributed to students. Wis. Stat. § 118.325.
7. A school board employee or agent or law enforcement officer authorized by the school board, with a reasonable suspicion that the pupil is under the influence of alcohol may require a public school pupil to provide a breath sample to be tested for alcohol when the student is: (1) on school premises, (2) in a motor vehicle, “if a pupil attending the school is in the motor vehicle”, or (3) while participating in a school-sponsored activity. Wis. Stat. § 118.45; Wis. Stat. § 125.09(2)(b) 1. to 3. The results of the tests, or the refusal to submit to a test, shall be made available for use in a disciplinary hearing. Wis. Stat. § 118.45. (This may only be done if the school board has developed a written policy for discipline and/or treatment for students found with alcohol in their system. Wis. Stat. § 118.45.)
B. Wisconsin Suspension Procedure
1. Student is accused of:
a. Violating the code of classroom conduct (Wis. Stat. § 120.13(1)(b)(2)(a);
b. Knowingly conveying any threat or false information concerning an attempt or alleged attempt being made or to be made to destroy any school property by means of explosives (Wis. Stat. § 120.13(1)(b)2.b);
c. Conduct by the pupil while at school or while under the supervision of a school authority that endangers the property, health or safety of others (Wis. Stat. § 120.13(1)(b)2.c);
d. Conduct while not at school or while not under the supervision of a school authority that endangers the property, health or safety of others at school or under the supervision of a school authority or endangers the property, health or safety of any employee or school board member of the school district in which the pupil is enrolled (Wis. Stat. § 120.13(1)(b)(2)(d).
2. Student receives notice of an expulsion hearing from “school district administrator or any principal or teacher designated by the school district administrator.” Wis. Stat. § 120.13(1)(b)2. If notice is received student may be suspended for 15 consecutive school days. If a notice was not sent then the suspension may be for not more than 5 school days. Id.
3. The pupil, and parent or guardian, shall be advised of the reason for the proposed suspension. Wis. Stat. § 120.13(1)(b)3.
4. The pupil or the parent/guardian may, within 5 school days from the start of the suspension, have a conference with the school district administrator or his/her designee. The designee shall not be a principal, administrator or teacher from the suspended pupil’s school.
Within 15 days after the conference, the school district administrator or his/her designee shall make a finding as to the appropriateness of the suspension.
“If the school district administrator or his or her designee finds that the pupil was suspended unfairly or unjustly, or that the suspension was inappropriate, given the nature of the alleged offense, or that the pupil suffered undue consequences or penalties as a result of the suspension, reference to the suspension on the pupil’s school record shall be expunged.” Wis. Stat. § 120.13(1)(b)4.
5. A suspended pupil may take quarterly, semester or grading period examination and may complete course work. Wis. Stat. § 120.13(1)(b)5.
6. Suspension is automatic for possession of a firearm. Wis. Stat. § 120.13(1)(b)5(bm).
C. Wisconsin School Expulsion Law
1. “The school board may expel a pupil from school whenever it finds the pupil guilty of repeated refusal or neglect to obey the rules, or finds that a pupil knowingly conveyed or caused to be conveyed any threat or false information concerning an attempt or alleged attempt being made or to be made to destroy any school property by means of explosives, or finds that the pupil engaged in conduct while at school or while under the supervision of a school authority which endangered the property, health or safety of others, or finds that a pupil while not at school or while not under the supervision of a school authority engaged in conduct which endangered the property, health or safety of others at school or under the supervision of a school authority or endangered the property, health or safety of any employee or school board member of the school district in which the pupil is enrolled, and is satisfied that the interest of the school demands the pupil’s expulsion. In this subdivision, conduct that endangers a person or property includes making a threat to the health or safety of a person or making a threat to damage property.” Wis. Stat. § 120.13(1)(c)1.
The phrase “engaged in conduct while at school or while under the supervision of a school authority which endangered the property, health or safety of others” is not defined. The statute’s sweeping language is akin to that found in the statutes prohibiting disorderly conduct , Wis. Stat. § 947.01. Today, depending on the circumstances, speech may constitute disorderly conduct. See In the Interest of Douglas D., 243 Wis. 2d 204, 626 N.W.2d 725 (2001); In the Interest of A.S., 243 Wis. 2d. 173, 626 N.W.2d 712 (2001).
2. “In addition [to the section above], the school board may expel from school a pupil who is at least 16 years old if the school board finds that the pupil repeatedly engaged in conduct while at school or while under the supervision of a school authority that disrupted the ability of school authorities to maintain order or an educational atmosphere at school or at an activity supervised by a school authority and that such conduct does not constitute grounds for expulsion [above], and is satisfied that the interest of the school demands the pupil’s expulsion.” Wis. Stat. § 120.13(1)(c)2.
3. The school is required to seek expulsion for a student for over one year, if the student is in possession of a firearm. Wis. Stat. § 120.13(1)(c)2m.
In fact, according to lawyers for numerous school districts, after the school shooting in Weston, all administrators will seek expulsion of a student for the possession of any weapon, regardless of size and context (without exception).
4. Expulsion Hearing Procedure
a. A hearing will be held prior to expelling a student. Wis. Stat. § 120.13(1)(c)(3).
b. A student’s (or parent/guardian’s (if student is a minor) has a right to notice of the hearing and the ground for which expulsion is sought. A student:
i. Must receive not less than 5 days notice or the hearing;
ii. The notice shall state:
(a) The specific grounds and “the particulars of the pupil’s alleged conduct upon which the expulsion proceeding is based.”
(b) The time and place of the hearing.
(c) That the hearing may result in the pupil’s expulsion.
(d) That, upon request of the pupil and, if the pupil is a minor, the pupil’s parent or guardian, the hearing shall be closed.
(e) That the pupil and, if the pupil is a minor, the pupil’s parent or guardian may be represented at the hearing by counsel.
(f) That the school board shall keep written minutes of the hearing.
(g) That if the school board orders the expulsion of the pupil the school district clerk shall mail a copy of the order to the pupil and, if the pupil is a minor, to the pupil’s parent or guardian.
(h) That if the pupil is expelled by the school board the expelled pupil or, if the pupil is a minor, the pupil’s parent or guardian may appeal the school board’s decision to the department.
(i) That if the school board’s decision is appealed to the department, within 60 days after the date on which the department receives the appeal, the department shall review the decision and shall, upon review, approve, reverse or modify the decision.
(j) That the decision of the school board shall be enforced while the department reviews the school board’s decision.
(k) That an appeal from the decision of the department may be taken within 30 days to the circuit court for the county in which the school is located.
(l) That the state statutes related to pupil expulsion are Wis. Stat. §§ 119.25 and 120.13 (1).
5. A student’s (or parent/guardian’s (if student is a minor) rights at the hearing:
a. May request that the hearing is closed;
b. May be represented by counsel, at their expense [parents, too, may be represented by counsel];
c. Will receive written minutes of the hearing that shall be kept by the school board;
d. May appeal an adverse ruling to the state superintendent. Wis. Stat. § 120.13(1)(c)3.
6. Appeal of the determination of an adverse ruling the hearing.
“[W]ithin 60 days after the date on which the state superintendent receives the appeal, the state superintendent shall review the decision and shall, upon review, approve, reverse or modify the decision. The decision of the school board shall be enforced while the state superintendent reviews the decision.” Wis. Stat. § 120.13(1)(c)3.
7. Appeal of the state superintendent’s decision to the circuit court must be made within 30 days of the decision of the state superintendent. Wis. Stat. § 120.13(1)(c)3.
D. Defending an Expulsion
1. Understand the forces at play.
a. Expulsion in many communities is a political issue and is not pedagogically related.
School boards are elected; they respond to their constituents and are always concerned about finances and appearances (i.e., elections).
b. Counsel for the school district (most often the prosecutor in expulsion proceedings) has an interest in keeping the district out of litigation – to not let the district do something that will result in a lawsuit.
2. Evidence in an expulsion case may be used in a criminal proceeding based on the same facts, i.e., possession of a weapon on school grounds. See, e.g., Wis. Stat. §§ 948.60 (possession of a dangerous weapon by a person under 18), 948.605 (gun-free school zones), 948.61 (dangerous weapon other than firearms on school premises), 961.46 (distribution to persons under age 18), 961.495 (possession or attempted possession of a controlled substance on or near certain places).
3. Prepare your case.
a. Obtain all school records regarding the student and those which the district relies on in the expulsion proceeding.
b. Witnesses – may be subpoenaed to the proceeding. Speak to as many of the district’s witnesses as you can before hand.
i. Fact witness(es)
— Because hearings are recorded it is unwise in most cases for the student to testify and to be available for cross examination. A written statement may in some cases be helpful. Parents are often helpful fact witnesses and should address the effect of the suspension/expulsion on their child.
— Fact witnesses may also include those school district employees who can interpret and explain the student’s school records, behavioral records or special education records (e.g., IEP placements).
ii. Character witness(es)
— These may be teachers, adults or students who can speak (or write) about the student’s positive contributions and relevant character traits. Ideally, these character witnesses will allow the District to see beyond the allegations and understand that if they were to decide in the student’s favor, their decision would have “political cover.”
— Effective if the cause of the expulsion is driven by a perceived risk to the community. Expert may be able to address mental health issues, need for special education or whether, in fact, student presents a risk to others.
c. Have the student stay current with school work during the suspension leading up to the hearing.
4. What happens at the hearing? The process is effectively a mini-trial.
a. The role of judge is usually played by a lawyer representing the interest of the school district.
b. The role of jury is usually played by the school board or a hearing examiner.
c. The role of prosecutor is usually played by the school’s administration. Depending on the district, this means either administrators (principals or superintendents) or by lawyers.
i. Burden of proof is on administration.
ii. What must be proven is set forth in Wis. Stat. § 120.13.
5. Alternative resolutions – depending on the nature of the offense, such as expungement of record.
6. Obtain counseling, examples: drug and alcohol counseling, anger management counseling, community service.
E. What Can a Student Do After Being Expelled?
1. A student may seek to enroll in another school district. However, no school board is required to enroll a student while expelled from another school district. Wis. Stat. § 120.13(1)(f).
2. The student may seek “early reinstatement,” or the ability to return to the school district prior to the end of the expulsion period. Wis. Stat. § 120.13(1)(h).
a. The school board may specify conditions that a student must accomplish before being reinstated or after being reinstated but before the end of the term of expulsion. Wis. Stat. § 120.13(1)(h)1.b.
b. A student or parent/guardian may appeal an early reinstatement condition imposed as part of the expulsion to the school district administrator within 15 days after the expulsion order is issued. Wis. Stat. § 120.13(1)(h)1.b.2. The reason to appeal would be if the condition is not related to the reasons for the student’s expulsion.
c. A failure to comply with an early reinstatement condition that the pupil was required to complete after reinstatement but before the end of the expulsion period may result in revocation of the early reinstatement. Wis. Stat. § 120.13(1)(b)4.
“Before revoking the pupil’s early reinstatement, the school district administrator or his or her designee shall advise the pupil of the reason for the proposed revocation, including the early reinstatement condition alleged to have been violated, provide the pupil an opportunity to present his or her explanation of the alleged violation and make a determination that the pupil violated the early reinstatement condition and that revocation of the pupil’s early reinstatement is appropriate. If the school district administrator or designee revokes the pupil’s early reinstatement, the school district administrator or designee shall give prompt written notice of the revocation and the reason for the revocation, including the early reinstatement condition violated, to the pupil and, if the pupil is a minor, to the pupil’s parent or guardian.” Wis. Stat. § 120.13(1)(b)4.
d. A pupil or their parent/guardian has the right to a conference within 5 school days with the school district administrator or designee, to seek that the decision be overturned. Wis. Stat. § 120.13(1)(b)6. This determination is final and may not be appealed. Wis. Stat. § 120.13(1)(b)6.
III. What Students Need to Know — And What Parents Need to Tell Their Children
A. The Right to Remain Silent
B. The Right to Attorney – Never speak to a school administrator if a law enforcement officer is also present.
C. “I DO NOT WISH TO SPEAK TO YOU WITHOUT A LAWYER.”