Special Meeting - Open Session - November 12, 2007

Madison Metropolitan School District Madison, Wisconsin Art Rainwater, Superintendent
BOARD OF EDUCATION Minutes for Special Meeting - Open Session November 12, 2007		Doyle Administration Building 545 West Dayton Street, Auditorium Madison, Wisconsin

Special Meeting of the Board of Education was called to order by President Arlene Silveira at 5:02 p.m.

MEMBERS PRESENT: Carol Carstensen, Maya Cole, Lawrie Kobza, Lucy Mathiak, Beth Moss, Arlene Silveira, Johnny Winston, Jr.

MEMBERS ABSENT: None

STUDENT

REPRESENTATIVE PRESENT: Joe Carlsmith (arrived 5:05 p.m.)

STAFF PRESENT: Sue Abplanalp, Bruce Dahmen, Joe Gothard, Alan Harris, Steve Hartley, Attorney Joseph Hill, Ed Holmes, Colleen Lodholz, Attorney Dan Mallin, Pam Nash, Art Rainwater, Karen Seno, Marcia Standiford, Ann Wilson-Recording Secretary, Attorney June Wilson, Nancy Yoder, Luis Yudice

1. Approval of Minutes

It was moved by Carol Carstensen and seconded by Lawrie Kobza to approve the minutes of the Special meeting dated October 29, 2007as distributed. Motion unanimously carried.

2. Announcements

There were no announcements.

3. Dialogue with Hearing Examiners over Student Discipline and the Expulsion Process

(Written materials provided in advance: Memorandum from Legal Counsel Dan Mallin re: 11/12/07 Hearing Examiner Discussion Panel with attachment, Possible Questions/Areas of Inquiry for the Hearing Examiner Panel Discussion on the MMSD Expulsion Process - attached to the original of these minutes.)

Arlene Silveira introduced the panel of Hearing Examiners - Howard Bellman, Cheryl Daniels and Henry Sanders - and thanked them for coming to this meeting to answer questions and share information. She indicated the focus of the discussion would be on four questions that are pertinent to the Board's review of the District's expulsion process.

Question 1 - What is your general approach to ensuring that the factual record is fully developed during the hearing? How is that affected when students or staff members are not present?

Attorney Howard Bellman

· Hearing Examiners have never had an orientation and never talk with each other. They work from the context of their own practice, pursuant to other processes.

· It is not common elsewhere that parties do not appear. If matters are not understood or facts are missing that are critical to the conclusion, will ask questions of Attorney Hill or the witnesses. In the absence of an adversarial system or process, left with the answers received from one of the parties. Meet prima fascia kinds of factors, and proceed.

Attorney Henry Sanders

§ Agree with Bellman statements. Had no orientation. Learn as you go along, from own initiative.

§ To complete the record, let district present case. If it is insufficient, it is their loss. If information is needed from a student or parent, will request clarification. Have, once or twice, called Legal Counsel for information, or ask the parties. Because these are administrative procedures, information is allowed in without legal recourse or objection, because participants are lay people. If student is not present, conduct a prima fascia case. District generally presents a document, witnesses. Make sure all technical points are covered. When the student is not present, would like to have someone there to look at the record, history, document.

Attorney Cheryl Daniels

· Have all been Hearing Examiners for a long time (some since the beginning) - have experience, background in administrative law. Are used to people being unrepresented, so comfortable with questioning witnesses. Develop case as much as possible to make credible determination, make sense of the record. District does a good job of trying to make sure the student is present or represented; works very hard at that. Their absence is not due to lack of trying. Question staff. Investigations are a little different among schools. Need to follow the trail; keep questioning. Use experience; talk with students directly as much as possible.

Would it be helpful to have more consistency among schools? To get parent engagement, should there be a list of questions that might result in standard pieces of information?

· Decide who does the investigation. Would be better to have one person supervising so the results are more consistent. Might assist in making sure everybody knows what to do to put together a credible case. Would be able to direct what comes before the Hearing Examiner and what does not. (C. Daniels)

· Do not see much difference in cases among schools - perhaps because there is a single prosecutor. (H. Sanders)

· Process conducted by Joseph Hill and Sherry Barnsley is working well because it is a caring function carried out by an effective prosecutor. Consistency matters, it is appealing bureaucratically; is a feature of justice. If found inconsistency, might conclude there is something that needs remedy to make it just. (H. Bellman)

Question 2: What do you think is working well with the current expulsion process?

Attorney Howard Bellman

· Process is entirely driven by the desire on everyone's part to do the right thing - for parents, pupils, the district, and victims. That is the feature and, if criticism is found, should not eclipse that point. Generally speaking, this pervasive attitude is the best thing about the process.

Attorney Henry Sanders

· System seems to be working okay. Striving for uniformity and consistency. One problem is that Hearing Examiners do not know the outcome of decisions, don't know if their decisions are consistent with other Examiners. Need to know the outcome of all decisions in order to know whether they are applying the law correctly. Are all covered under confidentiality and privilege. Would be helpful to know if decisions are rejected by Board of Education. Need outcome of personally made decisions, and of all decisions.

Attorney Cheryl Daniels

· Have seen an incredible evolution of people trying to make it work as best as it can. Joseph Hill is great to work with; looks out for the best interest of students. Do some cases for other districts. Madison does a better job than any other district. Everyone works toward getting students on the right track and getting them back in school. No one in the district shuts them off. Never felt that about any people involved in any part of the process. Truly working really well.

The Board does, on occasion, reverse Hearing Examiner decisions, but it is very rare. More frequently, it makes a modification, usually to the date when students can return under early readmission. May be good to explore giving feedback on cases and what others are deciding in similar cases. Appreciate Atty. Daniels' comments at the end of cases and the way in which she handles families as noted in the transcript. (C.Carstensen)

Question 3 - What is not working well with the expulsion process? What can be improved?

Attorney Cheryl Daniels

· In cases with multiple students, it is sometimes very difficult to sort out where culpability lies. If assigned to more than one student/case dealing with the same incident, are more able to sort out what is going on. Same problem in the legal system.

Attorney Henry Sanders

· Agree. In previous job, similar complaints were assigned to the same attorney, so could assemble a composite of facts.

· It would be an advantage to students to receive copies of exhibits before the hearing. Child has to participate at a disadvantage. Send out with Notice of Hearing.

· Concerned when student and parent present but not represented; generally do not speak. Need to know, in the Notice of Hearing, that their purpose in being there is to defend themselves. In the future, will advise witnesses to present their case; they can argue facts and appropriate discipline.

Attorney Howard Bellman

§ Not comfortable with hearings over the telephone, but it also happens in other settings.

§ Absence of feedback to Hearing Examiners is worthy of emphasis. Examiners could be more consistent in decisions, way hearings are conducted, substance of decisions. Could do a better job.

§ Hearings require Examiner discretion - are very simple, abbreviated criminal hearings. Looking at the act. Adopted a criminal model. Menu of offenses and punishments is pretty concrete and specific. If the act occurred, consequences have been identified. Make the inquiry irrelevant. Cannot consider prelude; ambiguous about desire and/or remedies.

§ Do not know consequences of timing (re: length of suspension); do not have sufficient grasp of the administration of a school district.

§ Most troubling - there is compounded, multiple hearsay. Would not "float" in a court system. In other administrative hearings, are casual about hearsay. Given seriousness of findings of expulsion hearings, is it appropriate for decisions to be based on multiple hearsay, not cross-examined because student is not present. Nobody in the room asks, "How do you know that?" "Is there really proof?" Agree all staff are well-intended, but it is worthy of worrying about testimony from people who do not witness nor talk with people who did witness.

Attorney Henry Sanders

· See uniformity in student return dates; do not have many concerns anymore.

· Hearsay is not allowable per se. DPI precedent. Allowable when the principal conducts an investigation. Writes it up and presents the case.

Attorney Cheryl Daniels

· Do ask questions to make sure all parties have been questioned when coming to the conclusion.

· Have brought to attention some things that were not right, not being appropriately handled; fundamentally wrong. Will never shrink from expressing this opinion. Am also a parent; wear multiple hats.

· Would be good for all Examiners to talk together.

Have there ever been cases when the Hearing Examiner has ruled against the Superintendent's recommendation? What would be the reasons for such a ruling?

§ Very small number; case or two. Felt the offense was different than what was charged, but there was an offense. Resulted in the same outcome. (H. Bellman)

§ Am generally in line with district recommendations; pretty uniform and consistent. Have ruled against the district's recommendation three or four times. Examples - students in fight (and defending themselves) additionally charged with refusal to obey school rules - when they wouldn't have been charged with that absent the fight. Have problem when students who defend themselves when attacked are also expelled. (H. Sanders)

Would you extend that concern (students defending themselves recommended for expulsion) to cases of students who are repeatedly threatened, bullied?

§ Valid concern. Need to look at on a case-by-case basis, very closely - what do students do when they have no recourse? (H. Sanders)

§ Definitely something that needs to be looked at, especially at the middle school level. Extremely difficult for students at that age; little better in high school. Need to look at policies. Schools need firm direction about stopping those behaviors. (C. Daniels)

§ Generating a fact-driven process. Will need to know exactly what happened. Would have unrepresented people making arguments in a process that is not equipped to come to subtle, nuanced findings. Back away from arguments heavily laden with factual findings. Whether bullying is tolerated or addressed is a separate issue. Getting revenge usually finds students starting something they cannot finish. (H. Bellman)

§ Board needs to look at policy beyond that. Example - case with anti-social, gang related charges, multiple students. Recommended that one not be expelled. Having all students come before you results in better overall set of decisions. Another example of a staff member making an inappropriate decision about a tool - decision was that student should not be expelled. (C. Daniels)

Question 4 - Is it your general opinion that students are adequately represented? Is there value in providing an advocate for the student?

Attorney Henry Sanders

· Several times thought attorneys did no good for students, yet student is better off with an attorney. Students sometimes do not understand that they should not say too much. Have seen advocates who are pretty good, but prolong by talking too much, put too much in the mix. Overall, attorney does not provide much benefit because rights are so limited. Would help if they assure student gets the case documents.

Attorney Howard Bellman

· How would you like to go into a hearing, with severe consequences, you are a child, and the other side is represented but you are not? Playing field ought to be leveled at the policy level. Hard to argue if one side is more equipped than the other. Representation for a student usually depends on the family economics - is a question of their resources. Every case where people are not represented is unfortunate.

· Representation can look more closely at whether the district follows its own rules. Lawyer can identify procedural deficit; only comes to light when a student is represented. Understand the challenges of providing representation. Very difficult, in the abstract, to make a case when only one party is represented.

Attorney Cheryl Daniels

· Is an overall justice issue. Need good representation. Many lawyers are not equipped; very different setting. Joseph Hill thinks about ramifications for the student and speaks up. Feels it is incumbent on him to not expel a student when a case has not been made. A lot to expect from one person.

Would an advocate or a law student be better than having no representation at all?

· In other situations, people who are not lawyers are very effective - union representatives, accountants in tax litigation, and counselors in divorces. Entirely possible for others to be effective advocates. If the district undertakes to provide an advocate, needs to assure that the advocate is skilled. Need a process to identify individuals that would work well. (H. Bellman)

Would the dynamics of the hearing change if the student received documents in advance?

· Any attorney would request documents in advance. Any student would be better served. (H. Sanders)

Arlene Silveira thanked the panel members for their time and for participating in this discussion. She noted there will be further discussion of the comments and recommendations received. Any written feedback is also appreciated.

It was moved by Johnny Winston, Jr. and seconded by Lawrie Kobza to change the order of the agenda and take up Item #7, fees for and agreements to participation in Inter-district high school girls cooperative hockey programs in 2007-08. Student representative advisory vote - aye. Motion unanimously carried. Action occurred at this point, but is recorded under #7 later in these minutes.

4. Revisions to Board Policy 4045 - Expulsion

(Written materials provided in advance: Memorandum from Art Rainwater dated 11/7/07 re: Expulsion Process - Final Revisions with attachments: Standard of Review Tasks Retained and Performed by the Board Itself (fourth draft); Standard of Review Checklist (revised); Notice of Hearing (revised); and Board of Education Policy 4045 - Expulsion (black-lined) - all attached to the original of these minutes.)

Notice of Hearing Letter - There was no objection to the revised version of the Notice of Hearing letter from Joseph Hill as presented in the written materials.

Standard of Review Tasks Retained and Performed by the Board Itself - It was recommended that the words Legal Memo under #1-c be changed to case summary.

Standard of Review Checklist - It was recommended that his be changed to his/her in the last entry in the section entitled Delegated Legal Counsel Review: (Did the Superintendent deviate from his/her baseline recommendation? If so, why?) It was further recommended that this entire statement be changed to read, "Is the Superintendent's recommendation the same as the "baseline recommendation" for the length of the expulsion and the conditions for re-admittance under the specified grounds? If not, why?"

Board of Education Policy 4045 - Expulsion - In Item 20-a, the word "a" was inserted in the second line (provide a letter). (more coming from Joseph)

It was moved by Lawrie Kobza and seconded by Lucy Mathiak that the recommended wording of the Board of Education Standard of Review of Hearing Officer Decisions as presented in the draft black-lined copy of Board of Education Policy 4045 dated 11/12/07 and as revised at this meeting be adopted as the Standard of Review and included in Policy 4045. Student representative advisory vote - aye. Motion unanimously carried.

There was a break from 6:30 - 6:40 p.m.

5. School Security Activities

(Written materials provided in advance of the meeting: Memorandum from Art Rainwater dated 11/7/07 re: School Security Activities with attached outline of presentation on School Security Activities; MMSD Emergency Procedures - attached to the original of these minutes.)

Attorney Dan Mallin presented information about legal issues, including jurisdiction, pupil records and law enforcement, and interviews by law enforcement.

DISCUSSION:

· Board may wish to look at policies to assure they are relevant. (Board may be comfortable with policy as it is, but the question may also be worth asking because we are facing new situations not anticipated by policy.)

· Hear about concerns for protecting student rights related to interrogation.

· Some things may require change in policy, but need to be understood first.

Luis Yudice, Pam Nash and Principals Alan Harris, Karen Seno and Colleen Lodholz addressed security measures currently in use. The Principals specifically addressed some key new initiatives at their schools: Alan Harris - the administrative structure at East; Karen Seno - the implementation of PBIS and its affect at Cherokee; Colleen Lodholz - Gang Prevention Task Force and curriculum. There was discussion about each of the items on the agenda, including cameras in schools, security assistants, Educational Resource Officers, Code of Conduct and expulsions, hall supervision, training on managing conflict, restricted door access, crisis response procedures at the school and district levels, coordination with Madison Police Department, gang related interventions, security plans for specific events, and communication with parents.

Art Rainwater summarized by noting that whenever there is a major crisis, a response has been identified and there are checklists for the various events that assure that all of the important steps are completed. For serious events, Ken Syke, Luis Yudice and the appropriate Assistant Superintendent immediately go to the school or location and, respectively, deal with the media, first responders, and overall administration of the school, which allows the principal or supervisor to be focused on staff and student needs. Command centers are established at the location and at Doyle. This has resulted in a better response to the crisis and better communication. There is a routine, follow-up meeting to thoroughly discuss and evaluate the process and determine which steps were successful and where changes or improvements can be made.

Pam Nash and Steve Hartley noted that, in meetings with principals, several recommendations were made for further work in safety and security. These included:

School-wide Discussion and Follow-up

Need for increased communication with parents, community, students. Example - West document including suggestions for safety in school and in the community. Outreach to students and community will continue.

Individual Interventions for Identified Students: Case Manager. Concentrate on the small number of students most at risk of creating violence. Work individually or in small groups; use case manager model. The administration will request allocation for staffing from additional reimbursement from special education.

DISCUSSION:

· In light of previous discussions about consolidating schools, less resources for small schools, are issues around relationships more of a challenge in small schools? (Part-time and shared staff are a challenge. Sometimes utilize clusters, look more for help to the classroom.)

· Allocation of resources and relationship to equity, to budget. Factors to take into account-- fragile students, settings, schools. Need to make resources a priority. (Psychologists and social workers key to prevention. Shifted from crisis to prevention and built capacity of support staff. See most problems in schools less than 500 that have no assistant principal and part-time staff.)

· Training for teachers, staff - case manager model.

· Welcome discussion of flexibility to provide specific resources for a limited time that meet specific needs.

· Connect with Youth Initiatives in the community. (Also working with Dane County Gang Task Force.)

Group Interventions for Identified Students and Families

Review administrative team structure. The East model will be shared as best practice with other high schools.

Provide better communication to parents, students, community and staff. Have ideas to share from West community meetings. Need to communicate more, follow up. Police Department invitation to parents to use PD district web sites for information.

Provide increased support to victims. Identify key adults in the school that students and parents can connect with.

DISCUSSION:

· Tools for victims to be safe. (Close coordination with Police Department to assure there is an appropriate investigation. Explain due process to victim and families. Create safety net - identify issues. Assign staff to maintain contact, provide information update to families. Sometimes students are transferred, people assigned to watch the threat.)

· Limits to contact with victim. (Court adjudication process sets limits; principals take active role to assure restrictions are enforced. If child needs protection, can do that from day one.)

· Policy and procedures to support victims, assure consistency. (Mostly administrative procedures; do not see as policy issues. Need resources.)

Developing a system to more clearly track events. Sense that most violence is not directly gang related, but do not have the data to know for sure.

Additional options for middle school students. Middle School principals feel strongly about the need for additional alternative environments.

DISCUSSION:

· Funding, timeline, any additional funding in state budget? (Hope to have recommendations by winter break. No funds coming from the state budget in this biennium.)

SUMMARY DISCUSSION:

· Concerned parents; need to provide answers in order to build trust. (Best avenue is to refer questions to the administration so that all appropriate information is shared.)

· Safety and security concerns are not a large part of student life. Comforting to know someone is thinking about that and planning for it. (Student representative)

· Random door checks are helpful.

· Need to keep perspective. Focusing on safety today, but is not a common, day-to-day issue. Sometimes comments from public are not based on facts. Provide information and reduce hysteria.

Principals were thanked for their work and for coming to speak with the Board.

There was a break from 8:30 p.m. until 8:35 p.m.

6. District Performance Goals

(Written materials provided in advance: MMSD Accountability Matrix (Revised) Attachment A, Draft 10/15/07 - attached to the original copy of these minutes.)

Art Rainwater reviewed background information about the development of the targets and measures for the Board's priority to improve student achievement. Maya Cole indicated she would like clarification on some points and did not feel the Board had received sufficient information or that there was adequate discussion to vote on this issue at this time. Performance and Achievement Committee chair Lawrie Kobza replied that there had been three meetings on the topic in the Performance and Achievement Committee, that minutes and videos of those meetings are available, and that information had been placed in the previous board packet in preparation for a vote. She thought that quite a lot of time had been spent on this issue and she felt prepared, based on prior meetings, to vote.

Mr. Rainwater noted that there will be further discussion related to the other Board priorities.

DISCUSSION:

· Achievement goal is a work in progress; Board can continue to monitor.

· Had concerns about meaning of targets and goals; was concerned that goals were unrealistic. Met with superintendent. (Want to see positive trend over time; realistic goals that people are willing to work for.)

· Value to growth goal that measures improvement year to year.

· Only one discussion about Value Added, brings us down to what WKCE is asking, no discussion of other goals like whether we want students to go to college. Should table discussion and start fresh.

· Board has requested better indication for tracking growth. Represents the base level - the building blocks for future success. Talking about using data that we have to provide additional information.

· Represents enhancement. Value Added has potential to show whether progress is being made, when, and where.

· There are numerous problems with state testing, but clearly have to take the test. Wasteful not to use the information. Value added shows year-to-year student improvement.

· Will be much more useful with Value Added.

It was moved by Lawrie Kobza and seconded by Lucy Mathiak to approve the revisions to the MMSD Accountability Matrix (Revised) as shown in Attachment A dated October 15, 2007. Motion carried 6-1 with Maya Cole voting no.

Lawrie Kobza clarified that this action does not tie the district to any particular provider to develop growth calculations and that the administration would determine the method that would be used.

The Superintendent welcomed any additional comments from Board members about the indicators for priorities.

7. Fees for and Agreements for Participation in Inter-districtHigh SchoolGirls Cooperative Hockey Programs in 2007-08

(Written materials provided in advance: Memorandum from Athletic Directors and Legal Counsel dated 11/8/07 re: Financial Arrangements Necessary for Student Participation in Girls' Cooperative Hockey Programs. Written materials provided at the meeting: Legal Services Memorandum from Dan Mallin dated 11/12/07 re: Proposed Cooperative Agreements. All materials attached to the original copy of these minutes.)

Art Rainwater noted the suggested motions would authorize district participation in two separate intergovernmental contracts for high school girls' hockey that name other school districts as the fiscal agents. In response to a question, he clarified that the contracts require that all fees are paid in full by the participant. He also noted that original requirements that funds be on deposit by the beginning of the school year has been changed to a requirement of the parent/guardian to sign a statement of financial responsibility. Johnny Winston, Jr. stated he talked with the parents and staff in the program. He hoped that good communication and continued cooperation with programs like this would continue.

It was moved by Johnny Winston, Jr. and seconded by Carol Carstensen to approve the one-year Agreement for Intergovernmental Cooperation for Establishment of a Cooperative High School Girls' Hockey Program for the 2007-2008 school year, with the Sun Prairie Area School District serving as Fiscal Agent, as described in the Legal Services Memorandum from Daniel Mallin dated 11/12/07 re: Proposed Cooperative Agreements. Student representative advisory vote - aye. Motion unanimously carried.

It was moved by Johnny Winston, Jr. and seconded by Lucy Mathiak to approve the one-year Agreement for Intergovernmental Cooperation for Establishment of a Cooperative High School Girls' Hockey Program for the 2007-2008 school year, with the Middleton-Cross Plains Area School District serving as Fiscal Agent, as described in the Legal Services Memorandum from Daniel Mallin dated 11/12/07 re: Proposed Cooperative Agreements. Student representative advisory vote - aye. Motion unanimously carried.

8. Endorsement of and Encouraging Attendance at Community Conversations held as part of the Wisconsin WayInitiative

(Written materials provided at the meeting: brochure, The Wisconsin Way; flyer, The Wisconsin Way public conversation December 6, 2007 - attached to the original copy of these minutes.)

Beth Moss noted that participation in the community conversations was recommended by the Communications Committee. She indicated that a presentation about the Wisconsin Way was well received at a WASB meeting and that other districts were also participating.

It was moved by Beth Moss and seconded by Lucy Mathiak to endorse the community conversations that will be held in Madison in December as part of the Wisconsin Way Initiative and to officially encourage, and use its resources, to encourage people to attend. Student representative advisory vote - aye. Motion unanimously carried.

9. Other Business

There was no other business.

10. Adjournment

It was moved by Johnny Winston, Jr. and seconded by Carol Carstensen to adjourn the meeting at 9:07 p.m. Student representative advisory vote - aye. Motion unanimously carried.

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