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Expulsion To-Do-List

Intake: Do these intake steps in the order below, if possible

1. Meeting with Client (Interview Sheet)

  • Discuss attorney-client relationship

  • Sign Order Appointing Counsel/Representation Agreement 

  • Discuss facts of the case

  • Sign FERPA-complaint release of information to allow you to talk to school 

  • Review any/all documentation that the student and/or parents have received from the school regarding the expulsion proceedings

  • Determine whether your client already has an IEP

2.  Contact StEPP committee members to ask questions and develop case strategy

3. Contact school prosecutor to:

  • Notify that prosecutor that you represent the student; provide Notice of Representation

  • Seek  an informal rescheduling of the hearing, if necessary, to accommodate your schedule (this is different than an adjournment, which seeks a postponement (see Pre-hearing legal issues, below); a rescheduling simply changes the date/time of the hearing to another date/time still within the 15-day time limit in Wis. Stat. § 120.13(1)(b)2.).

  • If the client already has an IEP, inform school that you will attend manifestation determination meeting (see 20 U.S.C. § 1415(k); 34 C.F.R. §§ 300.530-536)

4. Contact delinquency lawyer, if one, and get police reports (use dual release form)

5. Contact any community resources or restorative justice resources that may be available to the student for use in these expulsion proceedings.

6. Identify possible theory of the case

Discovery: Do these discovery steps in any order

1. Create a timeline of events related to the charges from your client’s perspective

2. Identify possible fact witnesses to support your client’s case

3. Identify possible character witnesses to support your client (in the “interest of the school district” prong of the expulsion analysis)

4. Identify the school’s evidentiary issues with its case and how to attack them (voluntariness of statements made to school officials if, in the specific circumstances, the 4th Amendment applies; completeness of evidence to support the charge, expecting that only one person from the school will testify; etc.)

5. Seek discovery materials from school district, either informally or through a FERPA and/or public records request (records must include any possible hint that the child may have needed an IEP at any point in his/her school lifetime; records must also include any/all investigative documents/records created or held regarding the charges)
Records to seek:

  • Any record that indicates the school may have known or should have known that the child had/has a disability.

  • Any investigative documents or records created or held in the custody of the school regarding the allegations that gave rise to the expulsion recommendation.

  • Any IEP records.

  • Any 504 plan records (pursuant to Section 504 of the Rehabilitation Act of 1973; a 504 plan is a broader, but less protective disability plan for a person with a disability).

Pre-hearing legal issues: Do these pre-hearing legal issues steps in any order, except for item a, which you should file first
1. File Motion to Request Independent Hearing Examiner

2. Inform school that you will attend manifestation determination with client if the student already had an IEP at the time of the alleged offense; or request a special education evaluation if your client wishes to do so (which may delay expulsion proceedings) (see 20 U.S.C. § 1415(k); 34 C.F.R. §§ 300.530-536)

3. Review notice given to student and parents—adequate under Stat. § 120.13(1)(c)4.? If not, include Motion to Dismiss for lack of jurisdiction in pre-hearing motions (see sample motion here)

4. Subpoena witnesses for your client under Wis. Stat. § 805.07(1) and Racine Unified School Dist. v. Thompson, 107 Wis. 2d 657, 321 N.W.2d 334 (Ct. App. 1982) (see sample subpoena here)

5. File pre-hearing motions (motions in limine) with the hearing examiner and copy school prosecutor.

  • Standard of Proof is not preponderance of the evidence under Butler v. Oak Creek-Franklin School Dist., 172 F. Supp. 2d 1102 (E.D. Wis. 2001)

  • Dismissal for lack of jurisdiction for failure to provide proper notice under Wis. Stat. § 120.13(1)(c)4. (see sample motion here)

  • Suppression of statements by student under principles in In the Interest of Jerrell C.J. 

  • Suppression of evidence based on 4th Amendment principles

  • Open or closed hearing, pursuant to Stat. § 120.12(1)(c)4.? If open, notify hearing examiner as late as possible, generally, unless client seeks media attention

Hearing Prep: Do these hearing prep steps in any order
1. Plan direct examination of your witnesses
2. Plan proposed cross-examination of the school’s witness(es)
3. Plan a proposed closing argument using applicable school behavior policy and Wisconsin Statutes 
4. Mark and make copies of exhibits

Expulsion Hearing
1. Cross-examine based on expulsion standards in Wisconsin Statutes and school’s behavior policy
2. Direct examine on conflicting facts and character
3. Argue insufficient facts to prove offense occurred and argue interest of school does not demand expulsion

Post-Expulsion Hearing
1. Due process complaint (if expulsion had special education issues)

2. Appeal to DPI

3. Civil Rights Complaint 

4. StEPP closing form

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