Amendment ASA1-AB693

2017 - 2018 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO ASSEMBLY BILL 693

February 8, 2018 - Offered by Representative Thiesfeldt.

AB693-ASA1,1,9 An Act to renumber and amend 115.38 (1) (b) 2., 118.125 (3), 118.164 (3) (a) 4. and 118.21 (1); to amend 118.125 (3) (title), 118.127, 118.60 (7) (b) 7. b., 119.23 (7) (b) 7. b., 938.396 (1) (c) 3. (intro.), 938.396 (1) (c) 3. a., 938.396 (1) (c) 3. c., 938.396 (1) (c) 3. d., 938.396 (1) (c) 4. and 938.396 (1) (d); and to create 115.28 (54t), 118.125 (1) (bc), 118.125 (1m), 118.125 (2) (dm), 118.125 (3) (b) 2., 118.1255, 118.164 (3) (am) 2., 118.21 (1) (b), 118.40 (4) (ar) 3., 118.60 (1) (ae), 118.60 (7) (b) 4m., 118.60 (7) (b) 5m., 118.60 (7) (b) 7m., 119.16 (16), 119.23 (1) (aem), 119.23 (7) (b) 4m., 119.23 (7) (b) 5m., 119.23 (7) (b) 7m., 120.12 (24m) and 120.12 (29) of the statutes; relating to: rights of and protections for teachers.

Analysis by the Legislative Reference Bureau

Notice of teacher rights and protections

This substitute amendment creates and modifies certain rights and protections for teachers and requires the Department of Public Instruction to include on its Internet site a summary of the laws governing these rights and protections, which include the following:

1. The right of a teacher to remove a pupil from a classroom under certain circumstances for the remainder of the school day.

2. The right of a teacher to utilize a grievance procedure to address workplace safety concerns.

3. The right of a teacher to use reasonable and necessary force under certain circumstances.

4. The right of a school district employee or teacher to receive assistance and leave benefits if the teacher is injured as a result of a physical assault or violent crime while performing work duties.

5. The right of a teacher to terminate his or her contract without penalty if the teacher is a victim of a physical assault or violent crime while performing work duties.

6. Civil immunity provided to a teacher under state and federal laws for certain discretionary acts.

7. The right of a teacher to review, upon request, the behavioral records of a pupil enrolled in the teacher's class when the teacher has a legitimate educational interest, including a safety interest, in doing so.

Records and reporting

The substitute amendment requires each school board and independent charter school to maintain pupil behavioral records until the pupil has graduated from high school. If the pupil is no longer enrolled in a school in the school district and if the school district has not received a request to transfer the pupil's records to another school, the school district must retain the records until the pupil attains the age of 21. Current law prohibits a school board from maintaining such records for more than one year.

The substitute amendment also requires private schools participating in the Milwaukee, Racine, or statewide parental choice program to maintain behavioral records for each pupil while the pupil attends the private school for the same period of time as is required of public schools. Current law requires such private schools to maintain a pupil's progress records while the pupil attends the private school and for at least five years after the pupil ceases to attend the school. The substitute amendment requires a private school that is not participating in a parental choice program to maintain pupil behavioral records only if the private school has adopted a policy governing the maintenance of pupil progress records and, with one exception, for the same length of time the private school maintains the progress records. The private school is not required to maintain a pupil's behavioral records once the pupil has graduated from the private school. If a private school maintains behavioral records, the private school must keep the information confidential in the same manner as is required of a public school official who maintains behavioral records.

The substitute amendment also requires DPI to include additional information about suspensions and expulsions in the school district report it creates for each school district, including the number of physical assaults by pupils on teachers and other school district employees, on other pupils, and on adults not employed by the school district.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB693-ASA1,1 Section 1. 115.28 (54t) of the statutes is created to read:

AB693-ASA1,3,7 115.28 (54t) Notice of teacher rights and protections. Include on the department's Internet site a summary of laws governing the rights and protections afforded to a public school teacher under state and federal law. The state superintendent shall include in the summary all of the following, and shall annually provide electronic notice to each school board of the summary described in this subsection:

AB693-ASA1,3,9 (a) The right of a teacher, under s. 118.164 (2), to remove a pupil from the classroom under certain circumstances.

AB693-ASA1,3,12 (b) The right of a teacher to utilize the grievance procedure, established by the school board as required under s. 66.0509 (1m) (a), to address a workplace safety concern.

AB693-ASA1,3,14 (c) The right of a teacher, under s. 118.31 (3), to use reasonable and necessary force under certain circumstances.

AB693-ASA1,3,18 (d) The right of a school district employee or teacher, under s. 120.12 (24m), and of a charter school employee or teacher, under s. 118.40 (4) (ar) 3., to receive assistance and leave benefits if the employee or teacher is injured as a result of a physical assault or violent crime while performing work duties.

AB693-ASA1,3,21 (e) The right of a teacher, under s. 118.21 (1) (b) or 119.16 (16), to terminate his or her contract without penalty if the teacher is a victim of a physical assault or violent crime while performing work duties.

AB693-ASA1,4,2 (f) Civil immunity provided to a teacher by s. 893.80 (4) and by 20 USC 7941 to 7948.

AB693-ASA1,4,5 (g) The right of a teacher, under s. 118.125 (2) (dm), to review the behavioral records of a pupil enrolled in the teacher's class if the teacher has a legitimate educational interest, including a safety interest, in reviewing the records.

AB693-ASA1,4,6 (h) Any other information the department considers relevant.

AB693-ASA1,2 Section 2. 115.38 (1) (b) 2. of the statutes is renumbered 115.38 (1) (b) 2. (intro.) and amended to read:

AB693-ASA1,4,10 115.38 (1) (b) 2. (intro.) The following information about suspensions and expulsions:

AB693-ASA1,4,11 a. The numbers of suspensions and expulsions ; the.

AB693-ASA1,4,17 b. The reasons for which pupils are suspended or expelled, reported according to categories specified by the state superintendent; , and including all of the following categories: physical assaults on teachers; physical assaults on other school district employees; physical assaults on students; and physical assaults on adults not employed by the school district. In this subd. 1. b., “physical assault” has the meaning given in s. 118.21 (1) (b) 1.

AB693-ASA1,4,20 c. The length of time for which pupils are expelled, reported according to categories specified by the state superintendent; whether , including the categories specified under subd. 2. b.

AB693-ASA1,4,21 d. Whether pupils return to school after their expulsion; the.

AB693-ASA1,4,24 e. The educational programs and services, if any, provided to pupils during their expulsions, reported according to categories specified by the state superintendent;, including the categories specified under subd. 2. b.

AB693-ASA1,4,25 f. The schools attended by pupils who are suspended or expelled; and the.

AB693-ASA1,5,2 g. The grade, sex, and ethnicity of pupils who are suspended or expelled and whether the pupils are children with disabilities, as defined in s. 115.76 (5).

AB693-ASA1,3 Section 3 . 118.125 (1) (bc) of the statutes is created to read:

AB693-ASA1,5,5 118.125 (1) (bc) “Governing board” means the governing board of a charter school established under s. 118.40 (2r) or (2x).

AB693-ASA1,4 Section 4 . 118.125 (1m) of the statutes is created to read:

AB693-ASA1,5,9 118.125 (1m) Public records laws applicable to independent charter schools. The duties and responsibilities imposed under this section on school boards and upon a school district clerk or designee apply to a governing board.

AB693-ASA1,5 Section 5 . 118.125 (2) (dm) of the statutes is created to read:

AB693-ASA1,5,19 118.125 (2) (dm) 1. The school district clerk or his or her designee shall, upon request, make available to a person employed by the school district that the pupil attends and required by the department under s. 115.28 (7) to hold a license the behavioral records of a pupil who is enrolled in the person's class if the person has a legitimate educational interest, including a safety interest, in reviewing the records. A school district may not be held liable for any damages caused by the nondisclosure of any information specified in this subdivision unless the school district or its agent acted with gross negligence or with reckless, wanton, or intentional misconduct in failing to disclose the information.

AB693-ASA1,6,5 2. A governing board or a designee of the governing board shall, upon request, make available to an instructional staff member employed by the charter school that the pupil attends the behavioral records of a pupil who is enrolled in the instructional staff member's class if the instructional staff member has a legitimate educational interest, including a safety interest, in reviewing the records. In this subdivision, “instructional staff” has the meaning given in the rules promulgated by the department under s. 121.02 (1) (a) 2. The governing board may not be held liable for any damages caused by the nondisclosure of any information specified in this subdivision unless the governing board or its agent acted with gross negligence or with reckless, wanton, or intentional misconduct in failing to disclose the information.

AB693-ASA1,6,16 3. The governing body of a private school or a designee of the governing body that maintains behavioral records of pupils attending the private school as provided under s. 118.1255 or as required under ss. 118.60 (7) (b) 4m. and 119.23 (7) (b) 4m. shall, upon request, make available to a teacher employed by the private school that the pupil attends the behavioral records of a pupil who is enrolled in the teacher's class if the teacher has a legitimate educational interest, including a safety interest, in reviewing the records. The governing body of a private school may not be held liable for any damages caused by the nondisclosure of any information specified in this subdivision unless the governing body or its agent acted with gross negligence or with reckless, wanton, or intentional misconduct in failing to disclose the information.

AB693-ASA1,6 Section 6. 118.125 (3) (title) of the statutes is amended to read:

AB693-ASA1,6,19 118.125 (3) (title) Maintenance of records by a school board or independent charter school.

AB693-ASA1,7 Section 7 . 118.125 (3) of the statutes is renumbered 118.125 (3) (a) and amended to read:

AB693-ASA1,6,25 118.125 (3) (a) Each school board and governing board shall adopt rules in writing specifying the content of pupil records and the time during which pupil records shall be maintained. No A school board or governing board shall publish rules adopted under this subsection as a class 1 notice under ch. 985.

AB693-ASA1,7,6 (b) 1. Except as provided in subd. 2., a school board or governing board shall maintain behavioral records may be maintained for more than one year after of a pupil for as long as the pupil ceases to be remains enrolled in a school in the school , unless district or in the charter school and until the pupil specifies in writing that his or her behavioral records may be maintained for a longer period has graduated from high school in the school district or at the charter school.

AB693-ASA1,7,8 (c) A pupil's progress records shall be maintained for at least 5 years after the pupil ceases to be enrolled in a school in the school district or in the charter school.

AB693-ASA1,7,11 (d) A school board or governing board may maintain the pupil records on microfilm, on an optical disc, or in electronic format if authorized under s. 19.21 (4) (c), or in such other form as the school board or governing board deems appropriate.

AB693-ASA1,7,15 (e) A school board or governing board shall maintain law enforcement officers' records obtained under s. 48.396 (1) or 938.396 (1) (b) 2. or (c) 3. separately from a pupil's other pupil records. Rules adopted under this subsection shall be published by the school board as a class 1 notice under ch. 985.

AB693-ASA1,8 Section 8 . 118.125 (3) (b) 2. of the statutes is created to read:

AB693-ASA1,7,18 118.125 (3) (b) 2. A school board or governing board shall maintain behavioral records of a pupil until the pupil has attained the age of 21 if all of the following apply:

AB693-ASA1,7,20 a. The pupil was enrolled in but is not currently enrolled in a school in the school district or in the charter school.

AB693-ASA1,7,22 b. The pupil has not graduated from a school in the school district or from the charter school.

AB693-ASA1,7,25 c. Neither the pupil nor the pupil's parent or guardian nor another school or school district nor a court has submitted to the school board or governing board the written notice described in sub. (4).

AB693-ASA1,9 Section 9. 118.1255 of the statutes is created to read:

AB693-ASA1,8,2 118.1255 Maintenance of records by a private school. (1) In this section:

AB693-ASA1,8,3 (a) “Behavioral records” has the meaning given in s. 118.125 (1) (a).

AB693-ASA1,8,4 (b) “Progress records” has the meaning given in s. 118.125 (1) (c).

AB693-ASA1,8,13 (2) (a) Subject to ss. 118.60 (7) (b) 4., 4m., 7., and 7m. and 119.23 (7) (b) 4., 4m., 7., and 7m., and except as provided in par. (b), if the governing body of a private school has adopted a policy governing the maintenance of progress records of a pupil who attends the private school, the governing body shall maintain behavioral records of a pupil for the same duration of time that the governing body is required by that policy to maintain the progress records of the pupil. A private school official who maintains behavioral records under this subsection shall keep the information in those records confidential in the same manner as is required of a public school official under s. 118.125.

AB693-ASA1,8,15 (b) The governing body of a private school is not required to maintain the behavioral records for a pupil once the pupil has graduated from the private school.

AB693-ASA1,10 Section 10. 118.127 of the statutes is amended to read:

AB693-ASA1,9,14 118.127 Law enforcement agency information. A school district, charter school established under s. 118.40 (2r) or (2x), private school, or tribal school may disclose information from law enforcement officers' records obtained under s. 938.396 (1) (c) 3. only to persons employed by the school district who are required by the department under s. 115.28 (7) to hold a license, to persons employed by the private school or tribal school as teachers, to persons employed by the charter school as instructional staff, and to other school district, private school, charter school, or tribal school officials who have been determined by the school board , governing board of the charter school, or governing body of the private school or tribal school to have legitimate educational interests, including safety interests, in that information. In addition, if that information relates to a pupil of the school district, charter school, private school, or tribal school, the school district, charter school, private school, or tribal school may also disclose that information to those employees of the school district, charter school, private school, or tribal school who have been designated by the school board, governing board of the charter school, or governing body of the private school or tribal school to receive that information for the purpose of providing treatment programs for pupils enrolled in the school district, charter school, private school, or tribal school. A school district may not use law enforcement officers' records obtained under s. 938.396 (1) (c) 3. as the sole basis for expelling or suspending a pupil or as the sole basis for taking any other disciplinary action against a pupil, but may use law enforcement officers' records obtained under s. 938.396 (1) (c) 3. as the sole basis for taking action against a pupil under the school district's athletic code.

AB693-ASA1,11 Section 11. 118.164 (3) (a) 4. of the statutes is renumbered 118.164 (3) (am) 1. and amended to read:

AB693-ASA1,9,23 118.164 (3) (am) 1. The school principal or his or her designee may return the pupil to the class from which the pupil was removed if, except as provided in subd. 2., the pupil has remained out of the teacher's classroom for the remainder of the day on which the pupil was removed from the classroom and if, after weighing the interests of the removed pupil, the other pupils in the class, and the teacher, the school principal or his or her designee determines that readmission to the class is the best or only alternative.

AB693-ASA1,12 Section 12. 118.164 (3) (am) 2. of the statutes is created to read:

AB693-ASA1,10,2 118.164 (3) (am) 2. The teacher of the pupil may waive the requirement that the pupil remain out of the teacher's classroom for the remainder of the day.

AB693-ASA1,13 Section 13. 118.21 (1) of the statutes is renumbered 118.21 (1) (a) and amended to read:

AB693-ASA1,10,11 118.21 (1) (a) The school board shall contract in writing with qualified teachers. The school board shall file a contract, with a copy of the teacher's authority to teach attached, shall be filed with the school district clerk. Such contract, in addition to fixing the teacher's wage, may provide for compensating the teacher for necessary travel expense. A teaching contract with any person not legally authorized to teach the named subject or at the named school shall be void. All teaching contracts shall terminate if, and when, the authority to teach terminates.

AB693-ASA1,14 Section 14. 118.21 (1) (b) of the statutes is created to read:

AB693-ASA1,10,17 118.21 (1) (b) 1. In this paragraph, “physical assault” means the knowing or intentional touching of another person, by the use of any body part or object, with the intent to cause physical harm. “Physical assault” does not include the reasonable and necessary use of force for the purpose of self-defense or the defense of others under s. 939.48.

AB693-ASA1,11,3 2. Beginning on the effective date of this subdivision .... [LRB inserts date], the school board shall include in each contract under this section a provision authorizing the teacher to terminate his or her contract without penalty, including the penalty of the payment of liquidated damages, if the teacher is the victim of a physical assault or of a violent crime, as defined in s. 939.632 (1) (e), while the teacher is on school premises, at or in transit to a school-sponsored activity, or otherwise engaged in official duties on behalf of the school district. The provision required under this subdivision shall specify that a teacher may terminate his or her contract as provided under this subdivision only if the teacher provides the school board with a law enforcement report documenting the physical assault or violent crime within 2 months of the incident covered in the report.

AB693-ASA1,15 Section 15. 118.40 (4) (ar) 3. of the statutes is created to read:

AB693-ASA1,12,2 118.40 (4) (ar) 3. Ensure that a charter school employee or teacher who is injured as a result of physical assault, as defined in s. 118.21 (1) (b) 1., or of a violent crime, as defined in s. 939.632 (1) (e), upon the person of the employee or teacher while the employee or teacher is in the performance of any duties as a charter school employee or teacher is provided with a reasonable paid leave of absence from employment with the governing board without a loss of leave benefits. Where inpatient care involving an overnight stay is required, a reasonable paid leave of absence is the longer of one workweek or the duration of the employee's or teacher's inpatient care. Where inpatient care involving an overnight stay is not required but medical treatment is needed, a reasonable paid leave of absence is the duration of time necessary to receive medical treatment or, if a health care provider certifies in writing that the employee or teacher is unable to return to work due to the injury, the duration of time specified by the health care provider. The governing board is entitled to the right of subrogation for reimbursement to the extent that an employee or teacher who sustains injuries while the employee or teacher is in the performance of his or her duties may recover the reimbursed items in an action or claim in tort against any 3rd party. A repayment made under this subdivision shall be limited to the total sum credited to the injured employee or teacher as damages for pay and fringe benefits actually received in the settlement of any claim caused by the negligence of the 3rd party. The governing board shall designate an employee to provide assistance to the charter school employee or teacher with insurance and benefits questions related to a leave of absence taken under this subdivision.

AB693-ASA1,16 Section 16 . 118.60 (1) (ae) of the statutes is created to read:

AB693-ASA1,12,4 118.60 (1) (ae) “Behavioral records” has the meaning given in s. 118.125 (1) (a).

AB693-ASA1,17 Section 17 . 118.60 (7) (b) 4m. of the statutes is created to read: