(<concurring). I concur in the majority's conclusion that the state superintendent of public instruction erred in reversing the expulsion of Lenny R. by the Madison Metropolitan School District Board of Education. I believe it should be explained that the fifteen-day suspension under § 120.13(l)(b), Stats., is a disciplinary action and does not establish a time within which the board must act on a proposed expulsion.
At its March 15,1993 meeting, the board of education adopted the examiner's decision1 expelling Lenny "through April 23,1993." However, the board amended the examiner's decision to provide that Lenny was expelled upon entry of the board's order to the end of the second semester of the 1992-93 school year, but that beginning April 19, 1993, the district would offer "homebound" instruction to Lenny until the end of the semester. The state superintendent reversed the expulsion because he concluded the board lost competency to hear the charges against Lenny because it did not complete the expulsion process within fifteen days after notice of the charges and hearing was served. The superintendent also concluded that the board erred in using the homebound program as a disciplinary tool. I conclude that the superintendent's decision in this respect is moot.
The superintendent reads § 120.13(l)(b), Stats., to require the school board to act on a notice of expulsion *19within fifteen days after the five-day notice of the proposed expulsion is given the child and the child's parents or guardian. In other words, the fifteen-day notice is an integral part of the expulsion proceedings and if the board does not act within that time, it loses jurisdiction or competency to expel the student. I disagree. I conclude that the fifteen-day period of suspension is disciplinary and is subject to the due process requirements of sub. (l)(b) and is not part of the due process procedures to hear expulsion charges.
Section 120.13(l)(b), Stats., provides in part:
The school district administrator or any principal . . . 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_
(Emphasis added.)
The school district administrator or his or her des-ignee may suspend a pupil without review or approval by the school board. No hearing is required but, "[p]rior to any suspension, the pupil shall be advised of the reason for the proposed suspension." Id. I strongly suspect that the drafters of § 120.13(1)(b), Stats., had read Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), where the Court held that a conference with a school teacher prior to discharge satisfied the requirements of procedural due process, provided the teacher had notice and an opportunity to be heard within a reasonable time after his or her discharge or suspension. Section 120.13(l)(b) further provides that the suspended pupil or the pupil's parent or guardian may, within five school days following the commencement of the suspension, request a conference with the school district administrator or his or her designee who shall *20be someone other than an official in the pupil's school. The school district administrator or his or her designee may make a finding within fifteen days of the conference that the suspension was unjustified, whereupon reference to the suspension in the pupil's school records "shall be expunged." Id. Whether these latter procedures satisfy procedural due process is not an issue in this case.
Although the fifteen-day period of suspension is triggered by notice of proposed expulsion, that notice has nothing to do with the expulsion proceedings. Section 120.13(l)(e)2, Stats., provides in part: "[T]he independent hearing officer or independent hearing panel. . . may expel a pupil from school whenever the hearing officer or panel finds that the pupil engaged in conduct that constitutes grounds for expulsion under par. (c)." The district must give five days' notice of the charges against the pupil and the time and place of the hearing. Subdivision 2 does not require that the hearing on the charges be held within any particular time, although due process requires that any disciplinary charges be heard within a reasonable time. The statute does not mention the fifteen-day suspension.
I agree with the state superintendent that § 120.13(l)(b), Stats., does not permit the school district administrator or his or her designee to suspend a pupil for more than fifteen consecutive school days. However, it is not up to the state superintendent to correct the administrator's or designee's error. That is up to the courts.
There is nothing in the statute which permits the state superintendent to review the school board's fifteen-day suspension under § 120.13(l)(b), Stats. Lenny was not denied procedural due process by the procedures prescribed in § 120.13(l)(e)2. He and his *21parents got notice of the proposed grounds for expulsion, got written notice of the hearing, were heard by the hearing officer, got notice of the reasons for his expulsion, got review by the school board of his expulsion and appeals to the state superintendent and the circuit court. I do not see how failure of the school board to hold the expulsion hearing within fifteen days of the expulsion notice violated Lenny's procedural due process rights or failed to follow the statutory procedure.
While I agree with the state superintendent's conclusion that homebound instruction may not be imposed as discipline, I find nothing in the applicable statutes to preclude a district from suspending a pupil and then providing homebound instruction to that pupil so that his or her educational needs continue to be met when it is necessary to remove a pupil from the general population for whatever reason. However, I do not believe that issue is involved in this case because the state superintendent has no statutory authority to interfere with the local school district's decision as to when to use the homebound instruction program.
For these reasons, I concur in our decision affirming the decision of the circuit court reversing the state superintendent's action. However, I do not join the majority's opinion.2
The school board adopted the alternative expulsion procedure under § 120.13(l)(e)2, Stats., pursuant to which an independent hearing officer may expel a pupil after hearing, subject to review by the school board, appeal to the state superintendent, and judicial review.
The majority would not reach the "issue" I advance to support the trial court's decision, on the grounds that this "issue" has not been raised. The difference between an "argument" and an "issue" is not often appreciated. See State v. Weber, 164 Wis. 2d 788, 789 & n.2, 476 N.W.2d 867, 868 (1991). "Once a case is before the court, the court may, within its discretion, 'review any substantial and compelling issue which the case presents.'" Id. at 795 n.6, 476 N.W.2d at 870 (Abrahamson, J., dissenting) (quoting Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 32, 435 N.W.2d 234, 238 (1989)). If we do not *22retain our independence to decide cases based on the law, we become arbitrators, not judges. The issue of the nature of the fifteen-day suspension is, in my opinion, a far more compelling issue than that decided by the majority. I believe we should follow our customary practice when a dispositive argument has not been noted by the parties; we should request supplemental briefs.
This appeal illustrates the value of a separate opinion in an intermediate appellate court. This case is likely to reach the Wisconsin Supreme Court and the court should have the benefit of a concurring judge's view of the law. The Chicago Council of Lawyers recently evaluated the United States Court of Appeals for the Seventh Circuit. See Chicago Council of Lawyers, Evaluation of the United States Court of Appeals for the Seventh Circuit (1994). The Council stated: "The Council believes . . . that separate opinions serve a real purpose." Id. at 11. The most persistent criticism of the Seventh Circuit judges was that they did not write separately enough. When addressing the Supreme Court Historical Society June 13,1994, Justice Scalia stated: "A second external consequence of a concurring or dissenting opinion is that it can help to change the law. That effect is most common in the decisions of intermediate appellate tribunals." Justice Scalia Delivers Nineteenth Annual Lecture: Discusses Dissenting and Concurring Opinions in Court History, The Supreme Court Historical Society Quarterly, vol. XV, at 19. The Council observed that: "There is relatively little scholarly literature on the virtues and vices of separate opinions, and most of it focuses on the U.S. Supreme Court." Chicago Council of Lawyers at 11 n.11. I have recently completed a survey of the chief judges of all state intermediate appellate courts to provide such literature.