THE CIRCUIT COURT OF FAIRFAX COUNTY David Bernhard, Judge.
PRESENT: Lemons, C.J., Mims, McClanahan, Powell, Kelsey, and
McCullough, JJ., and Russell, S.J.
ARTHUR KELSEY JUSTICE.
Fairfax County School Board disciplined S.C., a high-school
student, for nonconsensual, sexual touching of three students
at school. S.C. appealed to the circuit court and sought a
judicial vacatur of the School Board's decision. Finding
that the School Board's decision was arbitrary in
violation of S.C.'s due process rights, the circuit court
dismissed the disciplinary proceedings against S.C. with
prejudice. The School Board appeals, arguing that the circuit
court misapplied the governing legal standards and
misinterpreted the factual record of the disciplinary
proceedings. We agree and reverse.
§ 22.1-87 authorizes petitions for judicial review of
school board actions. The circuit court sits as an appellate
tribunal when hearing these petitions and may consider the
school board's orders, the hearing transcript, "and
any other evidence found relevant to the issues on appeal by
the court." Code § 22.1-87. In this case, the
parties did not offer any evidence outside of the
administrative record, and thus, our review, as well as the
circuit court's, is limited to that record. Because we, like
the circuit court, independently review the record from the
perspective of an appellate court, we give no deference to
the circuit court's recitation of the facts or to its
interpretation of the inferences arising from the underlying
2016, SC began her freshman year at a high school in Fairfax
County. At that time, one of S.C.'s parents received a
copy of the school's policy entitled "Student Rights
and Responsibilities: A Guide for Families" (the
"SR&R"). 2 J.A. at 318. This policy addressed
"Acts for Which Students May Be Disciplined."
Id. at 382. Those acts included "any behavior
incompatible with a K-12 educational environment and good
citizenship." Id. at 383. The policy then
identified specific "examples of prohibited
conduct" after twice clarifying that these were mere
pertinent part, the SR&R stated that "[a]cts for
which students may be disciplined include, but are not
limited to . . . [a]ssault." Id. Under the
category of "[a]ssault," a list of various
prohibited acts appeared, including "[i]mproper touching
of another person (whether or not consensual)" as well
as "[s]exual assault or battery upon any person."
Id. at 384; see id. at 355 (listing
"Improper Touching and/or Sexual Activity" as an
"Offense and/or Violation"). The school tests the
students at the beginning of each school year to measure
their understanding of the SR&R. In September 2016, SC
answered "T" for "True" to a test
question asking whether "[a] student who touches another
student intentionally in his or her private areas will face
disciplinary action and may be reported to the police."
Id. at 319-21.
February 22, 2017, three female students reported to a school
counselor that S.C. had touched them in a sexually
inappropriate manner. In detailed, written statements and in
oral statements to the assistant principal, the students
alleged that the sexual touching was intentional on
S.C.'s part and nonconsensual on their part. One of three
students stated that she was "being sexually
harassed" and that she felt "a bit unsafe" and
"uncomfortable" seeing S.C. in the hallways at
school. Id. at 294, 299. A second student felt not
only "uncomfortable" but also "anxious"
around S.C. Id. at 301. The third student was
"extremely nervous" seeing S.C. at school because
"if she gets mad it's bad. She has others gang up on
people." Id. at 295, 300. Even though S.C.
"knows not to confront me," this student worried,
"if she confronts others they don't have [the]
capability to defend themselves verbally or physically that I
can." Id. at 300.
school administration responded promptly. On February 23, the
assistant principal informed S.C. of the "suspected
infraction" and explained "the facts known to
school personnel," id. at 542, who had
interviewed the three alleged victims. See id. at
288. On that same day, SC provided the school with a written
statement in response to the allegations. In it, SC admitted
to touching students while at school but claimed that the
touching was consensual, adding that "[t]hese people are
really good and close friends of mine." Id. at
on that day, the principal suspended S.C. for 10 days. The
principal also referred the matter to the division
superintendent's hearing officer for a disciplinary
hearing to determine "whether [S.C.] should be long-term
suspended, reassigned to an alternative educational setting,
or recommended to the School Board for expulsion."
Id. at 541; see also id. at
The referral letter stated that the referral was
"necessary because [S.C.] was involved in a sexual
assault against another student." Id. at 541.
On the same day, the principal informed S.C.'s parents -
both orally and in writing - that the reason for the
suspension and referral was that S.C. had "engaged in
the sexual battery of other students while on school
grounds." Id. at 542.
principal's letter also informed S.C. that, upon request,
SC could obtain "a redacted copy of the discipline
packet that is submitted in support of the disciplinary
referral." Id. at 543. That packet included
written victim-impact statements by the accusing students.
See R. at 757, 763. Before the disciplinary hearing,
SC and her parents obtained the "discipline
packet," 2 J.A. at 331-32, which informed them of the
allegations that would be presented at the hearing.
Office of the Division Superintendent scheduled the hearing
for March 7 (Day 8 of S.C.'s 10-day suspension) but
rescheduled it at the request of S.C.'s father for March
9 (Day 10 of the 10-day suspension). Two hearing officers
representing the division superintendent presided over
S.C.'s disciplinary hearing. S.C. appeared at the hearing
represented by legal counsel. A court reporter transcribed
the proceedings. Before the hearing began, SC acknowledged
that she understood that she was accused of "[s]exual
assault against other students." Id. at 424.
during the hearing, S.C.'s counsel sought to establish
that S.C.'s conduct was not "sexual battery," a
"criminal charge" with elements defined by statute.
Id. at 450-52. "I'll be happy to submit the
statute," S.C.'s counsel declared, "so that we
can all get on the same page as to what battery and sexual
battery is because that's what's been alleged
here." Id. at 452. Counsel returned to this
theme later in her appeal to the School Board by adding that
"Section 18.2-67.4 of the Code of Virginia defines
'sexual battery'" as sexual abuse that is
"against the will of the complaining witness, by force,
threat, intimidation, or ruse." 2 J.A. at 564.
testimony at the disciplinary hearing, SC stated that the
allegations against her were only "somewhat
accurate." Id. at 486. Among her
qualifications, SC indicated that she had touched one
student's vagina once, not twice as the student had
alleged, and that she had done this only after the student
had agreed to the touching by saying, "yes, I would let
anyone touch me there." Id. In response to her
counsel's immediate request for clarification, SC
testified that she had only touched the student's
"inner thigh." Id. at 487. S.C. also
testified that one of the other accusers had asked to be
touched "under the shirt" and that while doing so
S.C. "accidentally" had touched the student's
breast. See id.
did not equivocate, however, regarding the prohibition in the
school's disciplinary policy. When asked whether
"school rules allow[ed] [her] to touch anyone in a
sexual manner," S.C. admitted, "No."
Id. at 490-91. She then admitted, without
qualification, that she had violated this disciplinary
[Hearing Officer]: Did you touch someone in a sexual manner
on school grounds?
[S.C.'s Counsel]: When you say a sexual manner, what do
[Hearing Officer]: Breasts, vaginal area, buttocks.
Id. at 491. After this admission, S.C.'s counsel
requested that the hearing officers limit S.C.'s
discipline to a reassignment to another regular public
school. Counsel also conceded that S.C.'s conduct, even
under S.C.'s version of events, could constitute a
violation of the SR&R policy:
I read the Rules and Responsibilities packet, and even though
the definition of assault and what is sexual battery is
different than what is in the statute, it specifically talks
about touching that is consensual or nonconsensual if
it's improper. So despite [S.C.'s] intentions and
what she said today, there's a very good possibility that
this does fall within a disciplinary realm.
Id. at 506.
hearing officers found that S.C. had "committed serious
offenses in violation of School Board policy by committing
multiple acts of offensive touching of three fellow
students." Id. at 554. The acts involved
"various incidents of sexual touching" that
"were not consensual." Id. The hearing
officers made clear that they did "not believe
[S.C.'s] denials." Id. Instead, they found
that S.C.'s actions had been "willful, deliberate,
and far outside the bounds of acceptable student
hearing officers added that they "were unable to
determine . . . whether [S.C.'s] inappropriate touching
of students rose to the level of sexual battery."
Id. The hearing officers' inability to make this
determination was irrelevant, however, because they had
already found that "'improper touching of another
person (whether or not consensual)' is a violation of
SR&R," id. The discipline for S.C. included
reassignment to an alternative learning center, probationary
conditions for a minimum of one year, and reassignment to a
different, regular high school at the beginning of the
2017-2018 school ...