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- Intake (do these intake steps in the order below, if possible):
- Meeting with Client (Interview Sheet)
- Discuss attorney-client relationship
- Sign Order Appointing Counsel/Representation Agreement [insert link]
- 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
- Contact StEPP committee members to ask questions and develop case strategy:
- Rick Jones, This email address is being protected from spambots. You need JavaScript enabled to view it., 608 267-1778
- Matthew Giesfeldt, This email address is being protected from spambots. You need JavaScript enabled to view it., 608 261-0629
- 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)
- Contact delinquency lawyer, if one, and get police reports (use dual release form)
- Contact any community resources or restorative justice resources that may be available to the student for use in these expulsion proceedings
- Identify possible theory of the case
- Discovery (do these discovery steps in any order):
- Create a timeline of events related to the charges from your client’s perspective
- Identify possible fact witnesses to support your client’s case
- Identify possible character witnesses to support your client (in the “interest of the school district” prong of the expulsion analysis)
- 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.)
- 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) (see sample FERPA request here: [insert link]; see sample public record request under Stat. §§ 19.31-39 here: [insert link]). 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):
- File Motion to Request Independent Hearing Examiner [insert link]
- 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)
- 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)
- 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)
- File pre-hearing motions (motions in limine) with the hearing examiner and copy school prosecutor (see samples here: [insert link])
- 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) http://law.justia.com/cases/federal/district-courts/FSupp2/172/1102/2308843/
- 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. [insert link]
- 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):
- Plan direct examination of your witnesses
- Plan proposed cross-examination of the school’s witness(es)
- Plan a proposed closing argument using applicable school behavior policy and Wisconsin Statutes (see outline here: [insert link])
- Mark and make copies of exhibits
- Expulsion Hearing:
- Cross-examine based on expulsion standards in Wisconsin Statutes and school’s behavior policy
- Direct examine on conflicting facts and character
- Argue insufficient facts to prove offense occurred and argue interest of school does not demand expulsion
- Post-Expulsion Hearing:
- Due process complaint (if expulsion had special education issues)
http://dpi.wi.gov/sped/dispute-resolution/complain
- Appeal to DPI
http://dpi.wi.gov/sspw/pupil-services/school-social-work/contents/behavior/discipline-suspension-explusion
- Civil Rights Complaint
http://www2.ed.gov/about/offices/list/ocr/docs/howto.html
- StEPP closing form