Madison Metro. Sch. Dist. v. Circuit Court For Dane County

• Decision Date: 14 July 2011
• Docket Number: No. 2009AP2845–W.,2009AP2845–W.
• Citation: 2011 WI 72,800 N.W.2d 442,269 Ed. Law Rep. 802
• Parties: MADISON METROPOLITAN SCHOOL DISTRICT, Appellant,v.CIRCUIT COURT FOR DANE COUNTY and the Honorable David T. Flanagan, III presiding, Respondents–Petitioners.
• Court: Wisconsin Supreme Court

800 N.W.2d 442

269 Ed. Law Rep. 802

2011 WI 72

MADISON METROPOLITAN SCHOOL DISTRICT, Appellant,

v.CIRCUIT COURT FOR DANE COUNTY and the Honorable David T. Flanagan, III presiding, Respondents–Petitioners.

No. 2009AP2845–W.

Supreme Court of Wisconsin.

Argued March 1, 2011.Decided July 14, 2011.

For the respondents-petitioners there were briefs and oral argument by Bruce Meredith, Madison.

For the appellant there was a brief and oral argument by Matthew William Bell, associate general counsel, Madison School Metropolitan, Madison.DAVID T. PROSSER, J.

¶ 1 This is a review of an unpublished decision and order of the court of appeals ¹ granting a writ of prohibition and vacating a circuit court order requiring the Madison Metropolitan School District (the District) to develop and implement an educational plan for M.T., a juvenile who was adjudged delinquent after the District had expelled him from school.

¶ 2 The case presents important issues related to the authority of circuit courts to order educational services for students who are subject to delinquency petitions and also have been expelled from school. The principal questions presented may be stated as follows.

¶ 3 First, does a circuit court have authority to order a school district to provide alternative educational services to a juvenile who has been expelled from school by a lawful and unchallenged expulsion order?

¶ 4 Second, did the court of appeals err in utilizing a supervisory writ to review the order of the circuit court?

¶ 5 We conclude:

(1) Wisconsin Stat. § 120.13(1)(c) 1.² gives a school district express authority to expel a student from school.

(2) A circuit court does not have statutory authority to order a school district to provide alternative educational services to a juvenile who has been expelled from school by a lawful and unchallenged expulsion order but is still residing in the community.

(a) Wisconsin Stat. § 120.12(18) requires a school board to cooperate with the juvenile court and the agency designated by the court to prepare an educational plan under Wis. Stat. § 938.33(1)(e) for a pupil or former pupil who is subject to a dispositional order under Wis. Stat. § 938.34 or Wis. Stat. § 938.355.

(b) Wisconsin Stat. § 120.12(18) requires a school district to “[c]oordinate and provide for continuity of educational programming” for pupils receiving educational services as the result of a court order under Wis. Stat. § 938.34(7d).

(c) Wisconsin Stat. § 120.12(18) does not require a school board or a school district to provide alternative educational resources to a juvenile who has been expelled from school under Wis. Stat. § 120.13(1)(c) 1.

(d) Wisconsin Stat. § 938.34(7d) authorizes a circuit court to order a juvenile to attend a variety of educational programs, but it does not authorize a circuit court to order a school district to create an educational program or contract for an educational program.

(e) Wisconsin Stat. § 938.45 applies only to natural persons, not legal entities like school districts.

(3) The court of appeals did not err in utilizing a supervisory writ to review the Order to Provide Appropriate Educational Resources in this case.

¶ 6 Consequently, the decision and order of the court of appeals is affirmed.

I. BACKGROUND AND PROCEDURAL HISTORY

¶ 7 On June 5, 2009, M.T., age 15, brought nine bags of marijuana to the campus of Madison East High School, a public school operated by the Madison Metropolitan School District. M.T. was a student at the school. When his conduct was discovered, M.T. was arrested and charged with possession of marijuana with intent to deliver.

¶ 8 The District immediately filed a complaint seeking the expulsion of M.T. from the District. The District sent all notices required by law, and an independent hearing examiner was appointed pursuant to Wis. Stat. § 120.13(1)(e). Hearing Officer Helen Marks Dicks held an abbreviated hearing on June 26, 2009, and a full hearing on July 6, 2009. The District presented two witnesses at the hearing; M.T. and his mother appeared by telephone but did not testify or present evidence. The hearing was closed to the public at M.T.'s request.

¶ 9 On July 12 the hearing officer issued an order concluding that M.T. engaged in conduct that constituted grounds for expulsion under Wis. Stat. § 120.13(1) and that the interests of the school demanded M.T.'s expulsion. As requested by the District, she ordered M.T. expelled for three semesters. She adopted the District's recommendations as to the conditions of expulsion, which included giving M.T. the right to apply for readmission after one semester provided certain conditions were met.³ The District Board of Education approved the order with modifications on July 21, 2009. The expulsion order denied M.T. any educational services from the District for at least one semester, namely, the fall semester of 2009–10.

¶ 10 A separate proceeding commenced on July 9, 2009, when Dane County authorities filed a delinquency petition against M.T. in the Dane County Circuit Court. The case was assigned to Circuit Judge David T. Flanagan who held a plea hearing on August 8 and a dispositional hearing on August 26, 2009.

¶ 11 Prior to the dispositional hearing, Judge Flanagan ordered the Dane County Department of Human Services (DHS) to submit a predisposition report. Wis. Stat. §§ 938.33(1) and 938.38(1)(a). A predisposition report must include: “A plan for the provision of educational services to the juvenile, prepared after consultation with the staff of the school in which the juvenile is enrolled or the last school in which the juvenile was enrolled.” Wis. Stat. § 938.33(1)(e).

¶ 12 On August 18, 2009, the DHS submitted a report that suggested 15 specific rules of supervision, including a recommendation that M.T. attend school regularly “with no unexcused absences.” The report also advised the court that the District was refusing to provide education programming for M.T. because he had been expelled.

¶ 13 The court's August 26 dispositional order included the provision that M.T. “Attend school regularly without unexcused absences.”

¶ 14 On September 14 Judge Flanagan sent a letter to the Superintendent of the District, Daniel A. Nerad. Judge Flanagan's letter reads in part:

I am a Dane County Circuit Court Judge responsible for cases in the Juvenile Court.... I have available an impressive range of resources, including direct supervision by experienced social workers of the Dane County Department of Human Services. Remarkably, I find I do not have available what I believe to be the key resource, a bare minimum of educational opportunity and activity. I am advised that this is because the District has expelled this student and will exclude him for possibly three semesters and certainly for one semester.

This young man lives with his mother. I have concluded that she is genuinely concerned for her son and willing to cooperate with efforts to get him back on the proper path. I am advised that this family cannot afford private tutoring. I have contacted several alternative educational programs and I can find nothing for him.

....

I can understand a determination that the safety and security of East High may be well served by excluding a student from the facility. I cannot, however, fathom the need to deny to a young man all possibility of participating in some educational activity, somehow, somewhere. It need not be fun; it need not be comfortable, but some minimal opportunity should be available....

It certainly is not my place to supervise or second-guess the complex operation of East High or any other educational facility.... I simply suggest that the juvenile court and the District can and should be working together in this situation. I am confident that the legitimate interests of the District can be fully met without the potentially destructive total exclusion that has been imposed.

¶ 15 On September 28 social worker Maureen Murphy of the Dane County Department of Human Services sent a memorandum to Judge Flanagan, advising him that she had contacted the District's Expulsion Coordinator, without avail. Murphy reported on the various educational options she had explored and that she had recommended that M.T.'s mother fill out the paperwork for home schooling. Murphy's report noted, “Once this is done, she has access to resources available through the WI Dept. of Public Instruction [DPI]. There are many free online resources and programs.... His mother is home during the day and has a computer with internet service.” Then Murphy added:

I am aware that the Court has sent correspondence to the Madison School District expressing concern about the lack of education options for [M.T.] and I am appreciative of this support.... Unfortunately, [M.T.] is (like many students who are expelled) a young man who has already struggled in school with attendance and behavior problems. His current expulsion will only further his “disconnect” from school and getting a much needed education.

¶ 16 In a letter dated October 4, 2009, the District replied to Judge Flanagan's letter. Chief of Staff Steve Hartley wrote that the District's “policies and systems do not currently provide for the type of services for expelled students as envisioned in your letter.” He asked for an appointment with the court. He also acknowledged receiving a draft Order to Show Cause.

¶ 17 Judge Flanagan issued an Order to Show Cause to the District on October 5. The order said that the court had been advised that the District “refuses to provide even minimal educational opportunity” to M.T. at any District facility “and refuses to provide even home school materials ... to use under the supervision of his mother who is home during the day.”

¶ 18 The court said that, working through the Dane County DHS, it was willing to craft a supervisory plan to serve the reasonable concerns of the District “at whatever location or manner it offers ... M.T. access to...