As the recent events with Dereian Brown have illustrated, the Madison school district expulsion process is something of a mystery to those who aren’t directly involved. Here are answers to some of the questions that people have asked.
But first, a disclaimer. Members of the School Board don’t publicly discuss the deliberations we have about expulsions in closed session. I am speaking only for myself here. Also, student privacy considerations preclude us from talking about individual cases, so my focus is primarily on general procedures and policy issues.
Who decides whether a student will be expelled from a Madison school?
Ultimately, the School Board decides.
Where does dealing with expulsions rank among School Board responsibilities?
I think it is everyone’s least favorite part of the job. It is certainly mine. School Board members take every expulsion seriously. The application of our expulsion policy to the unique situations of individual students is a sobering and often saddening exercise.
How does an expulsion get started?
Expellable offenses are identified in our Behavior Education Plan (BEP). Once someone at a school learns that an expellable offense may have occurred, an investigation is undertaken by a school administrator. This is generally the principal or an assistant principal – for ease of reference, we’ll assume it’s the principal. The principal interviews students who may have information, including the students who are suspected of the misbehavior, and, when possible, reviews videotape from security cameras.
If the principal determines that a student has done something that meets the definition of an expellable offense, he or she sends an expulsion memo downtown. This is mandatory – the principal has no discretion in the matter.
The memo is reviewed, and if it is in order, an administrator prepares an affidavit that recommends the student for expulsion for a specific period of time, and also recommends an early reinstatement date.
If the student has or is suspected of having a disability, an investigation explores whether the behavior in question was a manifestation of the student’s disability. If so, the process ends. Otherwise, the matter is referred to a hearing examiner for a hearing.
What happens at the hearing?
An attorney for the school district will call the investigating principal as a witness to describe what the student did and why the interests of the school require the student’s expulsion. There may be another school district witness or two. The school district will introduce exhibits to show that procedures have been followed.
The student, his or her parents or guardians, or an attorney for the student if there is one, can cross-examine the school district’s witnesses and call any witnesses of their own. A court reporter records what happens.
After the hearing, the hearing examiner issues an order that essentially upholds the expulsion recommendation or rejects it. It is unusual for the recommendation to be rejected, as the hearing examiners do not have the authority to ignore or modify our policies.
How does the School Board get involved?
If the hearing examiner endorses the expulsion recommendation, the matter comes before the School Board. We receive a copy of the hearing examiner’s decision, the transcript of the hearing, and copies of the exhibits. We all individually review the material and then meet to decide what to do.
As a rule, we apply the standards set out in the BEP to the student’s behavior. We don’t use our consideration of an individual case as a vehicle to change the policies we’ve established. It is more common for us to note issues that the case raises as ones that we should think about the next time we take up potential changes to the BEP. In compelling circumstances, we may take into account the individual student’s situation when establishing an early reinstatement date.
What is the role of public comments?
We received a lot of public comments urging us not to expel Dereian Brown. The comments were heartfelt, thoughtful and raised a number of good points. We will do our best to keep the points in mind when we take another look at the BEP in the spring. The appropriate consequences for serious violations of school rules, particularly those that endanger safety, are a challenge to figure out and community input is very valuable.
But that is a policy-setting exercise. In fairness to all our students, including those who have virtually no family support, we try hard not to be swayed by public sentiment when applying our existing policy to individual situations. That has been the consistent approach we have followed during the eight years I have been on the Board.
For example, there is simply no way to make principled decisions based on a judgment of whether a student is a good kid or not. We think all our students are good kids. That is not a basis for us to ignore our policies.
What does expulsion mean these days?
We don’t simply boot kids out of school for good and wash our hands of them. Typically, expulsions formally last for two semesters. Expulsions for possession of a firearm last a semester longer. Expelled students can apply for early reinstatement at the start of the next semester after he or she has been expelled for at least a full quarter. The vast majority of students come back on early reinstatement.
So if a student is expelled during the first quarter of the school year, he or she will be eligible for early reinstatement at the start of the second semester. If the expulsion occurs during the second or third quarter, early reinstatement is available for the start of summer school. Fourth quarter expulsions keep the student out until the start of the second semester of the next school year.
How can students keep up with their learning while they’re expelled?
While students are expelled, they cannot be on the grounds of their schools. Expelled students can, however, attend the school district’s RISE alternative program that is held at the new Briarpatch facility.
The RISE program is designed to include four components: academic courses for credit, behavioral and mental health services, service learning opportunities, and mentoring. So, practically speaking, an expelled student can attend an alternative program for anywhere from half a semester to a semester and a half before returning to the student’s home school.
In addition, a student with a disability who is expelled (and so whose misbehavior is not a manifestation of disability) remains entitled to the services identified in his or her IEP.
Does an expulsion always stay on a student’s permanent record?
No. The BEP provides that, for most offenses, an expulsion is automatically expunged from a student’s records a semester after the student returns to school, if he or she stays out of trouble. This means the expulsion does not get reported to potential employers or colleges.
Why expel students?
Under state law, a student cannot be suspended from school for more than five days. If a behavior incident is sufficiently serious that it warrants removing the student from school for more than a week, then the expulsion process is the next available step. A student recommended for expulsion can be suspended for up to 15 days before the school district acts on the expulsion.
What are expellable offenses?
Here is the current list of offenses that automatically trigger a recommendation for expulsion:
- Possessing and distributing a drug or drugs, including marijuana, to another student, or possessing any drug, with evidence of the intent to distribute the drug to another person.
- Purchasing drugs other than marijuana.
- Possession and actual, attempted or threatened use of a weapon, other than a firearm or other gun, toward another person or to cause a disruption.
- Possession of a firearm, as defined by 18 USC 921 of the federal code (e.g. handgun, rifle, shotgun, starter pistol etc.)
- Possession of a gun of any kind, other than a firearm, whether loaded or unloaded, operable or inoperable. Examples include, but are not limited to, BB guns, pellet guns, flare guns and air rifles.
- Possession of a bomb or other explosive device not covered elsewhere in the Behavior Education Plan.
- Engaging in non-consensual sexual contact with another student coupled with the use of force, a weapon, threat or coercion
Our first obligation is to keep our schools safe for our students and staff. In the interests of safety, we take a hard line on weapons and drug transactions in our schools. The only immediately-expellable offense that is not weapons-related or drugs-related is coerced sexual contact with another student.
We’re always open to reconsidering our policies, but at the moment I think this is a reasonable list.
What about disparities?
We are all concerned that students of color are suspended and expelled at higher rates than other students. We have worked to make our list of expellable offenses relatively short, clear and objective. We don’t want to make subjective categories of behavior like “insubordination” grounds for expulsion.
Also, with the exception of sexual assault, impulsive actions while a student is at school will not lead to an expulsion. Instead, the student must have made the deliberate choice of bringing a weapon or drugs to school.
I believe that one way to avoid unwarranted disparities is to apply our expulsion standards uniformly and consistently. The unpleasant upshot of this is that any student who commits an expellable offense will end up being expelled. While this can give rise to tough cases, like that of Dereian Brown, I don’t know how any other approach could be workable and fair to all.
Should students be represented by attorneys at expulsion hearings?
This will sound self-serving, but I don’t think students benefit much from being represented by attorneys in the expulsion process. The skills that attorneys bring to legal proceedings simply are not that useful for students facing expulsion.
First, rarely is there a significant factual dispute about whether the student did what he or she is charged with.
Second, typically the only witness at a hearing for the school district will be the principal or assistant principal who investigated the event. There is little reason to think that the witness will be telling anything other than the truth, as he or she perceives it. The witness is also entitled to rely on hearsay (i.e., what other students or staff told the witness they saw or learned about the event). This means that there is little room for effective cross-examination.
Third, rules of evidence do not strictly apply at expulsion hearings; nor are all the procedural requirements that have grown up around the 4th and 5th amendments applicable. As a result, grounds for striking testimony or dismissing an expulsion on procedural grounds are exceedingly rare.
Fourth, attorneys are not going to make much headway with an argument that a student who committed an expellable offense should not be expelled for some reason. An argument that, despite expulsion, a student should be allowed to return to the classroom as soon as possible is one that will receive a better reception. But there is no particular advantage to an attorney making that argument – it can be at least as effective coming from a student’s parents or directly from the student.
I’m an attorney and certainly don’t intend to minimize the critical role attorneys can play for clients enmeshed in the legal system. But for a student recommended for expulsion, the result will just about always be the same whether or not an attorney is involved.