Madison Metropolitan School Dist. v. Wisconsin Dept. of Public Instruction
| Citation | 199 Wis.2d 1,543 N.W.2d 843 |
| Decision Date | 28 December 1995 |
| Docket Number | No. 94-0199,94-0199 |
| Parties | , 106 Ed. Law Rep. 1323 MADISON METROPOLITAN SCHOOL DISTRICT, Petitioner-Respondent, v. WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION, Lee Sherman Dreyfus, Interim State Superintendent of Public Instruction, Respondents-Appellants. |
| Court | Court of Appeals of Wisconsin |
Appeal from an order of the circuit court for Dane County: Jack F. Aulik, Judge. Affirmed.
For the respondents-appellants the cause was submitted on the brief of James E. Doyle, Attorney General, with Warren D. Weinstein, Assistant Attorney General.
For the petitioner-respondent the cause was submitted on the brief of Jill Weber Dean and Frank C. Sutherland of Lathrop & Clark of Madison.
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
Madison Metropolitan School District suspended and later expelled a Madison middle school pupil. The state superintendent of public instruction reversed the expulsion decision, and the circuit court reversed the state superintendent's decision. The department of public instruction and the state superintendent appeal from the circuit court's order.
The issues are whether (1) the state superintendent exceeded his authority when he ruled that the district failed to comply with the time limit on a suspension under § 120.13(1)(b), STATS., the controlling statute; (2) the state superintendent lacked authority to review a "home study agreement" in an expulsion proceeding; and (3) the student on homebound study was suspended within the meaning of § 120.13(1)(b). We hold that the state superintendent lacked authority to review the suspension. We affirm the judgment.
On December 4, 1992, a seventh grade pupil brought an unloaded BB pistol to his Madison middle school. An assistant school principal suspended the pupil for three days for bringing the gun to school.
On December 9, 1992, the pupil and his parents met with principal Dr. Marvin Meissen and assistant superintendent of secondary education Dr. Shirley Baum. The pupil's mother signed an offer of homebound studies agreement. 1 The agreement provided that the pupil would receive homebound instruction from December 9, 1992, to January 15, 1993. 2 The homebound instruction program provides a pupil with "one-on-one" educational services from a teacher outside the school for at least two hours a day, five days a week. Dr. Baum stated on the form that she recommended homebound instruction because of expulsion.
The district considers the homebound studies agreement as part of a larger agreement concerning the expulsion. It contends that the meeting produced an "oral agreement" on a disposition which included expulsion for a limited period combined with homebound instruction prior to the expulsion.
On December 11, 1992, Dr. Meissen wrote to the pupil and his parents, stating that the letter "confirms the decision to expel you" and invoking the school policy that required him to recommend that action. He enclosed a copy of the three-day suspension form that had been signed on December 4.
The parents obtained counsel who requested a meeting with Dr. Baum. At the meeting on January 20, 1993, the district refused to consider placement in homebound instruction as a sufficient disposition in lieu of expulsion. The same day the district issued notices of expulsion to the pupil and his family, setting a hearing date for January 26. The parties agreed to postpone the hearing until February 4. At the hearing, Dr. Baum recommended that the student receive a nine-week period of no services.
On February 22, 1993, a hearing officer recommended expulsion and ordered the homebound instruction continued until the district school board acted on his decision. On March 15 the school board approved an amended version of the order. The board directed that expulsion begin immediately and continue to the end of the second semester of the 1992-93 school year but that the district offer an alternative Madison School District program on April 19, 1993, until the end of the semester.
The pupil appealed his expulsion to the state superintendent. On May 17, 1993, the superintendent, in the person of the deputy superintendent, found that the pupil had not been permitted to return to school after the fifteen-day suspension authorized in § 120.13(1)(b), STATS., had expired and that the suspension continued, notwithstanding the homebound study agreement. The state superintendent concluded that the school board had failed to comply with all of the procedural requirements of § 120.13(1)(b), the suspension subsection, and § 120.13(1)(c), an expulsion statute. He reversed the expulsion.
The circuit court held that the state superintendent has no authority to review procedural errors concerning suspensions under § 120.13(1)(b), STATS., and a procedural error under that subsection did not invalidate the expulsion.
Other facts will be stated in our opinion.
We review the department's decision, not that of the trial court, WSEU v. Wisconsin Employment Rel. Comm'n, 189 Wis.2d 406, 410, 525 N.W.2d 783, 785 (Ct.App.1994), but our review is identical to that of the circuit court. Boynton Cab Co. v. DILHR, 96 Wis.2d 396, 405-06, 291 N.W.2d 850, 855 (1980). We must set aside or modify the superintendent's decision if we find he erroneously interpreted a provision of law. Section 227.57(5), STATS.
Like the heads of all administrative agencies, the state superintendent possesses only such power as is expressly conferred or necessarily implied from the statutes under which he operates. Grogan v. Public Service Comm'n, 109 Wis.2d 75, 77, 325 N.W.2d 82, 83 (Ct.App.1982). The extent of that authority is a question of law. Wisconsin Power & Light v. PSC, 181 Wis.2d 385, 392, 511 N.W.2d 291, 293 (1994). We owe no deference to an agency's determination concerning its own statutory authority. Id.
The pertinent statutes are § 120.13(1)(b) and (c) and (e), STATS. The relevant parts of those statutes are as follows:
The pupil suspension subsection, § 120.13(1)(b), STATS., provides
The school district administrator or any principal or teacher designated by the school district administrator also may ... suspend a pupil for not more than 3 school days or, if a notice of expulsion hearing has been sent under par. (c) or (e) ..., for not more than a total of 15 consecutive school days for noncompliance with ... school board rules, or ... for conduct by the pupil while at school ... which endangers the property, health or safety of others....
One pupil expulsion subsection, § 120.13(1)(c), STATS., provides
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 the pupil engaged in conduct while at school ... which endangered the property, health or safety of others ... and is satisfied that the interest of the school demands the pupil's expulsion. Prior to such expulsion, the school board shall hold a hearing.... The expelled pupil or, if the pupil is a minor, the pupil's parent or guardian may appeal the expulsion to the state superintendent.... [T]he 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. An appeal from the decision of the state superintendent may be taken within 30 days to the circuit court of the county in which the school is located.
An alternative expulsion subsection, § 120.13(1)(e) 1.b., STATS., provides that a school board may adopt a resolution authorizing an independent hearing officer appointed by the board to determine expulsions. Section 120.13(1)(e) 2 provides that
the independent hearing officer ... may expel a pupil from school whenever the hearing officer ... finds that the pupil engaged in conduct that constitutes grounds for expulsion under par. (c).... Within 30 days after the date on which the order is issued, the school board shall review the expulsion order and shall, upon review, approve, reverse or modify the order. The order of the hearing officer ... shall be enforced while the school board reviews the order. 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 state superintendent.... [T]he 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. An appeal from the decision of the state superintendent may be taken within 30 days to the circuit court of the county in which the school is located.
It is beyond dispute that a pupil or his or her parents or guardian has no right of appeal to the state superintendent because of error in a suspension proceeding under sub. (1)(b). Nor does that provision expressly confer on the state superintendent the power to review a suspension. Subsection (1)(b) contains no reference whatever to an appeal under any circumstances to the state superintendent or review by that officer.
It is also beyond dispute that sub. (1)(c) and (e) confer on a pupil or his or her parents or guardian an unqualified right to appeal an expulsion decision to the state superintendent and direct him to review it. Nothing in sub. (1)(c) and (e) expressly authorizes the superintendent to review a challenged suspension when the superintendent reviews an expulsion decision.
In the absence of an express authorization to the state superintendent in an expulsion appeal to review a suspension, the question is whether the legislature impliedly granted him that power.
However, if the...
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