School Expulsions: Not all are Equal

by Alison Julien & Patricia Enge

John is an eighth-grade student in public school. His teacher sends him to the principal's office after seeing John writing names on a sheet of paper with the words "kill list" across the top. When questioned by the teacher, the students on the list verify that there has been some teasing and pushing between John and these students. During his meeting with the principal, John admits that he wrote the list in an effort to stop the teasing but denies any intention of hurting anyone. The principal, however, calls John's mother, tells her that John is suspended, and asks her to pick up John from school. When John's mother arrives, the principal informs her that he plans to begin expulsion proceedings. The next day, John and his parents receive certified letters stating that John has been suspended for the next 10 days, and that the expulsion hearing is scheduled for the following week. After reading the notice, John's mother contacts a lawyer.

What happens to John will depend upon whether he is in regular education or special education. It also may depend upon whether his attorney is aware of the interplay between special education law and the school board's expulsion power.

The number of expulsions in Wisconsin schools has more than tripled since the 1991-1992 school year.1 Because of this dramatic increase, more attorneys are likely being called on to represent students and parents in expulsion proceedings. What many lawyers may not know, however, is that expulsion law differs dramatically when dealing with special education students.

Although it is not possible to describe the entire reach of special education law or school disciplinary procedures within the scope of this article, this article describes the impact of special education law on an expulsion proceeding so that practitioners are better prepared to advise clients. To illustrate the process, the article considers what would happen to John under three different scenarios.

Expulsion - Regular Education

The simplest scenario from a procedural standpoint is that John is a regular education student. He has average grades, and although he has been sent to the office occasionally, he has never been suspended. Neither his teachers nor his parents consider him to be a behavior problem, and he has no record of violent, aggressive, or threatening behavior.

Section 120.13 of the Wisconsin Statutes governs school boards' expulsion power.2 A school board may expel a student for repeated refusal or neglect to obey school rules, for threatening to destroy school property with explosives (or providing false information about an alleged threat), or for endangering or threatening to endanger the property, health, or safety of others.3 In addition, children older than 15 may be expelled for repeated conduct that disrupts the school's ability to maintain order or an educational atmosphere at school or at school-sponsored activities.4

A school may suspend a regular education student for no more than five consecutive days unless it sends a notice of expulsion hearing.5 If it sends a notice of expulsion hearing, the school may suspend the student for no more than 15 consecutive school days.6 The notice of hearing must be sent to the student and to the student's parents, and it must specify the student's procedural rights.7

Generally, the expulsion hearing is held before the school board, which typically is represented by counsel.8 The school district may be represented by separate counsel to serve as prosecutor, but more often a school administrator fills that role. Although an expulsion hearing does not mirror a trial, there are certain procedural mandates: students may be represented by counsel, the board must keep minutes and issue a written order, and the student may appeal the expulsion order.9 These procedural requirements are important because the superintendent's review on appeal of an expulsion hearing is limited to ensuring that the school board followed them.10

The limited appellate review makes it critical for counsel to be well prepared for the hearing. Hearings generally involve two issues: 1) whether the student's behavior falls within one of the statutory criteria permitting expulsion, and 2) what penalty is appropriate. In some ways, expulsion hearings are very similar to trials, as counsel for the student may present witnesses, including character witnesses, and introduce relevant documents.

Defending expulsion hearings, however, presents some unique difficulties. Because a school board is permitted to base its expulsion decision, at least in part, on hearsay,11 counsel's ability to cross-examine is somewhat limited. In addition, most often a student will have already given a statement to school personnel before parents retain an attorney, which makes the liability portion of the proceeding difficult to defend. Finally, the nature of the school setting itself affects some defenses, such as a defense based on the First Amendment. Schools may prohibit speech that is lewd, vulgar, or profane.12 They also may regulate speech that would "substantially disrupt school operations or interfere with the right of others."13 Thus, a First Amendment defense that may succeed in another setting might not be viable in an expulsion proceeding.

Because of the difficulty defending expulsion cases, the hearing's penalty portion is very important. The board can consider the student's entire behavioral record for this phase of the hearing. Because there is no statutory limit on the duration of a student's expulsion, students can be expelled through their twenty-first birthdays. If a student is expelled, no other school district is required to enroll the student during the expulsion.14 Due to the compulsory attendance law, however, expelled students must continue their education, either through private school, home schooling, or correspondence school. These options often are expensive or onerous for parents to implement.

Thus, as part of counsel's preparation for hearing, it is important to ask the district the length of expulsion it plans to recommend to the school board and whether the child might be eligible for early reinstatement. Some districts allow students to withdraw in lieu of expulsion. These are subjects worth addressing with the district in most cases.

In John's case, because John already admitted that he wrote the list, the issues would be whether the "kill list" was a threat to endanger the health or safety of others and, if so, what the appropriate length of expulsion would be. The administration likely will establish that some students feared for their safety because of John's actions. Thus, the board probably would conclude that John's conduct threatened to endanger the safety of other students, a proper basis for expulsion. Despite John's good prior record, because the threat involved violence and because of the rash of recent, well-publicized school shootings, if John is a regular education student, he could expect to be expelled for a significant time unless he is able to reach a settlement with the district.

Expulsion - Special Education

The expulsion scenario becomes a bit more complicated if special education law is involved. The Individuals with Disabilities Education Act (IDEA)15 and its state counterpart, Wis. Stat. Chapter 115, provide protections to special education students that do not extend to students in regular education. These protections are given to two classes of students: those who previously have been identified as eligible for special education, and those who may be eligible, but have not yet been identified.

Students Already Identified

Assume that John is no longer a regular education student. Instead, he was found eligible to receive special education services under the category of emotional disturbance approximately a year before the incident. His eligibility is based upon an emotional disturbance; he has been diagnosed with anxiety, depression, and a mood disorder. The rest of the facts remain the same; namely, John is facing expulsion because he wrote the "kill list."

Special Education: An Introduction. For the most part, the expulsion procedures outlined for regular education students are the same for children in special education. The differences lie in the procedures that happen before the expulsion hearing, the parents' rights to challenge district decisions, and the services provided post-expulsion.

The differences stem from the school's inability to unilaterally change a special education student's placement. Every child in special education has an individualized education program (IEP) prepared by the district staff and the child's parents (the IEP team). The IEP specifies, among other things, the student's educational goals and the special services the student will receive. After preparing the IEP, the team determines the child's placement, or where the services will be delivered. Placement is driven by the child's needs as reflected in the IEP. In general, any placement changes must be made by the IEP team, and any change in a child's placement triggers additional procedural protections.

These principles are important in the disciplinary setting because any removal from school for more than 10 consecutive days, including an expulsion, constitutes a change in the student's educational placement.16 Thus, when the district contemplates expulsion, additional procedural protections take effect. These include additional notice requirements, the right to a manifestation determination, the right to request a due process hearing, the child's right to "stay put" in the educational placement during the hearing, the child's right to receive educational services for every removal that exceeds a total of 10 cumulative days in a school year, and the child's right to receive educational services even if expelled.

Notice and Manifestation Determination. When the district decides to expel a special education student, in addition to the standard notice of expulsion, the district must provide the parents with notice of its decision and with notice of the parents' procedural rights and protections under special education law.

The district also must convene the student's IEP team to assess the child's behavior and, if necessary, to modify the child's IEP to include appropriate behavioral interventions.17 The IEP team also is required to consider the relationship between the child's behavior and the child's disability;18 this is known as the manifestation determination. The manifestation determination must be made within 10 days after the date the district decided to seek expulsion.19 The manifestation determination is a critical step in the process because if the child's behavior was a manifestation of the child's disability, the child cannot be expelled. Only if the behavior was unrelated to the disability may the district proceed with the expulsion.20

To determine whether the behavior was a manifestation of the child's disability, the IEP team must review all relevant information, including evaluation and diagnostic results, observations of the child, and the child's IEP and placement. The team may find that the behavior was not a manifestation of the child's disability only if:

• the child's IEP and placement were appropriate and the services called for in the IEP were provided, consistent with the IEP and placement;
• the child's disability did not impair the child's ability to understand the impact and consequences of his or her behavior; and,
• the child's disability did not impair the child's ability to control the behavior.21

If the team does not find that all three of these standards existed, it must conclude that the child's behavior was a manifestation of his or her disability,22 and the district cannot expel the child. Instead, the IEP team must consider whether the child's IEP or placement should be revised to more effectively address the child's behavior.23

If, however, the team determines that the behavior was not a manifestation of the child's disability, the district may discipline the child in the same manner that it would discipline a nondisabled student, including expulsion.24

Appeal: "Stay Put" Placement. If the district concludes that the student's behavior was not a manifestation of his or her disability, the parents may request a hearing.25 This is an appeal to the Department of Public Instruction, which appoints an administrative law judge to hear the case. The hearing must be expedited,26 and the burden of proof lies on the school district.27 While the appeal is pending, unless the parent and the district agree otherwise, the child is entitled to remain in his or her current educational placement, known as the "stay put" placement.28 Accordingly, the child cannot be expelled until the hearing is completed, and only then if the district's decision is affirmed.

Interim Alternative Educational Setting. In limited circumstances a school may unilaterally change a student's placement even if the student is in special education. If a special education student brings a weapon or drugs to school, school officials may unilaterally remove the child to an interim alternative educational setting for up to 45 days.29 In addition, if the school believes that a child is likely to injure himself or others, the school may ask an administrative law judge to order placement in an interim alternative setting for up to 45 days.30 The district may request subsequent extensions for 45 days at a time if it continues to believe that the child would be substantially likely to injure himself or others if he remains in his regular placement.

Services After Expulsion. Perhaps the most critical distinction between regular education students and special education students is that once a special education student has been removed from school for more than 10 days in a school year, the district must provide services to the child during any subsequent removal.31 There is no similar protection for regular education students. Thus, unlike students in regular education, whose educational services normally cease once the student is expelled, a child in special education continues to receive educational services even after expulsion. The student's IEP team determines the nature and extent of those services.32 At a minimum, the school must provide as much support and instruction as is needed for the student to make progress in reaching his or her IEP goals, and advance through the general curriculum.33

John's Case. Applying these legal principles to John's case, because he was a special education student when he was caught with the "kill list," the special education rules apply. Thus, within 10 days of the date when the district decided to seek expulsion, John's IEP team would be required to meet to review his IEP and consider whether his behavior, writing a "kill list," was a manifestation of his disability. His team would ask: 1) were John's IEP and placement appropriate, and were services provided in accordance with the IEP; 2) did John's anxiety, depression, or mood disorder impair his ability to understand the impact and consequences of writing the "kill list," and 3) did John's anxiety, depression, or mood disorder impair his ability to control his behavior?

The role of the parents' attorney is to ensure that the team has all necessary information to assist it in answering these questions appropriately. Thus, John's attorney would need to obtain complete copies of John's medical and educational records. Those documents often note problems concerning mental health, behavior, impulsivity, or attention. The attorney also should contact John's psychologist and psychiatrist to determine whether those doctors had relevant information for the IEP team and whether they should attend the manifestation determination hearing. Often doctors or other mental health professionals have valuable information and insight into the student's behavior, treatment regimen, and prognosis, and that information may prove very beneficial when considering the interplay between the student's behavior and his or her disability. If John's doctors were able to explain that any of his medical conditions impaired his ability to understand the consequences of his actions or, more likely, impaired John's ability to control his actions, the IEP team would be more likely to determine that John's conduct was a manifestation of his disability.

The importance of involving the student's private treatment providers was underscored in [Student] v. Richland School District.34 In that case, a student with a learning disability was involved in a vandalism incident. His IEP team considered the relationship between his disability and his conduct and concluded that the vandalism was not a manifestation of the student's learning disability. What the team ignored, however, were facts raised by the student's mother, which suggested that the student also had attention deficit disorder (ADD). The student had been repeatedly truant and had received at least 54 behavioral referrals during high school. The district was aware of his behavioral problems but did not evaluate him to determine whether he qualified for special education services under the categories of "emotional disturbance" or "other health impairment" based on his ADD. It also did not consider whether the student's behavior was a manifestation of his ADD.

On appeal, the parents presented evidence from the child's psychologist. She testified that the student's behavior was not a manifestation of his learning disability, but it was a manifestation of his ADD and his mood disorder. She explained that although his disabilities did not prevent him from knowing the consequences of his behavior, they did cause him to have difficulty controlling his behavior. On the basis of this testimony, the ALJ concluded that the district had not met its burden of proof, reversed the manifestation determination, and set aside the expulsion.

Thus, assuming that John's doctors could provide helpful information to the IEP team, John's attorney would want to ensure their participation in the IEP meeting, either in person or by phone. At a minimum, a letter from the doctor responding to the questions the team is charged to answer should be provided to the IEP team.

The attorney also should consider consulting an educational expert. The IEP team's first determination is whether the child's IEP and placement were appropriate, and whether services were provided in accordance with the IEP. If the IEP and placement were inappropriate, the team must conclude that the behavior was a manifestation of the disability. Thus, John's attorney would want to contact educational experts for input on the appropriateness of the IEP and placement.

Under these facts and with the input of John's health care providers, the IEP team probably would conclude that John's conduct was a manifestation of his disability. Thus, he could not be expelled. Instead, John would continue to receive educational services in the placement deemed appropriate by his IEP team.

Students Not Yet Identified

The most complicated fact pattern arises when the student has a disability that might qualify him or her to receive special education, but the student has not yet been identified by the district as a student who qualifies for special education.

For example, assume that John received good grades through his sixth-grade year, but during seventh and eighth grade he struggled to maintain a "D" average. He has normal intelligence but is having problems in school. In the last two years he had three behavioral referrals for fighting, and he had two more for swearing at his teachers in the classroom. John's parents became concerned about John's anger and outbursts at home. John's teacher and parents shared their mutual concerns about his escalating behavioral problems during parent/teacher conferences. John's parents also took him to see a psychologist, who diagnosed him with anxiety, depression, and a mood disorder, and referred him to a psychiatrist. The psychiatrist prescribed medication for him. John's parents provided all of this information to the school and arranged for school personnel to administer John's medication during the school day. The incident with the "kill list" happened just before John switched to a new medication, which seems to be helping to stabilize his mood.

Under these facts, even though John has not yet been identified as a child with a disability, he may be able to use the protections provided for special education students. A child who has not been found eligible to receive special education nonetheless may assert the protections provided to special education students if the school district had knowledge that the student was a child with a disability before the behavior took place. A district is deemed to have had the requisite knowledge if:

• the child's parent expressed concern in writing to school personnel that the child was in need of special education and related services;
• the child's behavior or performance demonstrated the need for special education and related services;
• the child's parent requested a special education evaluation; or
• the child's teacher or other district personnel expressed concern about the child's behavior or performance to the director of special education or other appropriate district personnel.35

The district will not be deemed to have had knowledge if it conducted an evaluation and concluded that the child was not eligible to receive special education, or if it determined that an evaluation was unnecessary, and it provided notice of its determination to the child's parents.36

Lack of Knowledge. If the district has no basis of knowledge that the student had a disability when the behavior occurred, it may expel the student in the same manner as it would any regular education student.37 If the district asserts lack of knowledge, however, the parents nonetheless may request a special education evaluation to determine the child's eligibility, and the district must conduct an expedited evaluation.38 The "stay put" protection does not apply, so the district may suspend or expel the student without educational services during the evaluation process.39 If, at the conclusion of the evaluation, the child is determined to be eligible for special education, the child is entitled to all of the protections for special education students, including the right to a manifestation determination, educational services, and due process procedures.40 This means that if the child was expelled, the child either must be reinstated if the IEP team determines the behavior was a manifestation of the child's disability, or the child must receive educational services during the term of expulsion if the team determines there was no manifestation of the disability.

John's Case. Although John's parents have orally expressed concerns to teachers, they have not put their concerns in writing or requested a special education evaluation. (This often is the case, as many parents are unaware of their right to request an evaluation or the availability of special services.) Thus, John's parents must rely upon his behavior or performance to show that the district had knowledge that John had a disability before the incident. To prove knowledge based upon the child's behavior, John's attorney must review his records and interview John's parents and possibly John. Information concerning behavior often is in the student's cumulative education file. Documents sent home to parents such as progress reports, homework assignments, or tests may have helpful teacher notations as well. Teachers or administrators also may have made statements to John or his parents regarding their concern about John's behavior and its negative impact on his education.

In John's case, his school records show a decline in grades and a corresponding increase in behavioral referrals for fighting and verbal outbursts. In addition, John's parents and teachers shared information about increased behavioral problems at home and in school.

John's medical records also are relevant, as they should document John's diagnoses of anxiety, depression, and a mood disorder. Importantly, they also may document communications between his doctors and the school that can be used to prove district knowledge.

Based on the information John's school had concerning his behavior at home, his disciplinary record at school, his academic decline, and his medical diagnoses, counsel would have a solid argument that the district had sufficient knowledge to suspect a disability and should have evaluated John for special education. Counsel should raise that issue with the district and request all of the special education protections described above.

If the district lacked knowledge, it could proceed with the expulsion hearing. In that event, counsel immediately should request an expedited evaluation. While the district was conducting the evaluation, it would be entitled to determine John's placement, including expulsion without educational services. If John eventually were found eligible for special education, he would be entitled to all of the procedural protections under special education law, including a manifestation determination and the right to receive educational services even if expelled. If he was found ineligible, the parents would have the right to challenge that finding at a due process hearing.

Conclusion

An attorney's knowledge about the implications of special education law when representing students in school expulsion hearings may be critical to the outcome of the proceeding. In the best-case scenario, an expulsion might be avoided altogether by invoking the protections under special education law. At the very least, however, students with disabilities will receive educational services during the term of their expulsions, a right not afforded all students.

Endnotes

1 School Discipline - Expulsions, Education at a Glance (State of Wisconsin, Department of Public Instruction) April 1999, available at <http://www.dpi.state.wi.us>.

2 Wis. Stat. § 120.13 (1999-2000).

3 Wis. Stat. § 120.13(1)(c)1 (1999-2000).

4 Wis. Stat. § 120.13(1)(c)2 (1999-2000).

5 Wis. Stat. § 120.13(1)(b)2 (1999-2000).

6 Id.

7 Wis. Stat. § 120.13(1)(c)4 (1999-2000). For purposes of this article, it is assumed that the student is a minor.

8 Wis. Stat. § 120.13(1)(c)3 (1999-2000).

9 Wis. Stat. § 120.13(1)(c)3 (1999-2000).

10 Racine Unified Sch. Dist. v. Thompson, 107 Wis. 2d 657, 667, 321 N.W.2d 334, 339 (Ct. App. 1982). The language limiting the superintendent's review to ensuring that procedural mandates were followed was actually dicta. Despite that fact, however, subsequent state superintendents have cited that dicta as defining their scope of review. In addition, the limitation on the superintendent's power of review has survived subsequent legislative changes. Thus, in 1995 the court of appeals declared that the "Racine dicta is embedded in Wisconsin school law." Madison Metro. Sch. Dist. v. Wis. Dep't of Pub. Instruction, 199 Wis. 2d 1, 17, 543 N.W.2d 843, 849 (Ct. App. 1995).

11 Racine Unified Sch. Dist, 107 Wis. 2d at 664, 321 N.W.2d at 337-38.

12 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).

13 Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001).

14 Wis. Stat. § 120.13(1)(f) (1999-2000).

15 20 U.S.C. §§ 1400-1487 (1994 & Supp. V 1999).

16 34 C.F.R. § 300.519 (2000).

17 20 U.S.C. § 1415(k)(1)(B)(1994 & Supp. V 1999); 34 C.F.R. § 300.520(b)(1) (2000).

18 20 U.S.C. § 1415(k)(4) (1994 & Supp. V 1999); 34 C.F.R. § 300.523(a) (2000).

19 20 U.S.C. § 1415(k)(4)(A) (1994 & Supp. V 1999); 34 C.F.R. § 300.523(a)(2) (2000).

20 20 U.S.C. § 1415(k)(5) (1994 & Supp. V 1999); 34 C.F.R. § 300.524(a) (2000).

21 20 U.S.C. § 1415(k)(4)(C) (1994 & Supp. V 1999); 34 C.F.R. § 300.523(c), (d) (2000).

22 34 C.F.R. § 300.523(d) (2000).

23 34 C.F.R. § 300.523(f) (2000).

24 20 U.S.C. § 1415(k)(5)(A) (1994 & Supp. V 1999); 34 C.F.R. § 300.524(a) (2000).

25 20 U.S.C. § 1415(k)(6)(A)(i) (1994 & Supp. V 1999); 34 C.F.R. § 300.525(a) (2000).

26 20 U.S.C. § 1415(k)(6)(A)(ii) (1994 & Supp. V 1999); 34 C.F.R. § 300.525(a)(2) (2000).

27 20 U.S.C. § 1415(k)(6)(B)(i) (1994 & Supp. V 1999); 34 C.F.R. § 300.525(b)(1) (2000); see also [Student] v. Richland Sch. Dist., DHA Case No. LEA-00-007 (Wis. Div. Hearings & Appeals, March 3, 2000) (DPI).

28 34 C.F.R. §§ 300.514, 300.524(c) (2000).

29 20 U.S.C. § 1415(k)(1)(A)(ii) (1994 & Supp. V 1999); 34 C.F.R. § 300.520(a)(2) (2000).

30 20 U.S.C. § 1415(k)(2) (1994 & Supp. V 1999); 34 C.F.R. § 300.521 (2000).

31 34 C.F.R. § 300.520(a)(1)(ii) (2000).

32 34 C.F.R. § 300.121(d)(3)(ii) (2000).

33 See id.

34 [Student] v. Richland Sch. Dist., DHA Case No. LEA-00-007 (Wis. Div. Hearings & Appeals, March 3, 2000) (DPI).

35 20 U.S.C. § 1415(k)(8)(A), (B) (1994 & Supp. V 1999); 34 C.F.R. § 300.527(a), (b) (2000).

36 34 C.F.R. § 300.527(c) (2000).

37 20 U.S.C. § 1415(k)(8)(C)(i) (1994 & Supp. V 1999); 34 C.F.R. § 300.527(d)(1) (2000).

38 20 U.S.C. § 1415(k)(8)(C)(ii) (1994 & Supp. V 1999); 34 C.F.R. § 300.527(d)(2)(i) (2000).

39 20 U.S.C. § 1415(k)(8)(C)(ii) (1994 & Supp. V 1999); 34 C.F.R. § 300.527(d)(2)(ii) (2000).

40 20 U.S.C. § 1415(k)(8)(C)(ii) (1994 & Supp. V 1999); 34 C.F.R. §300.527(d)(2)(iii) (2000).

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