The #MeToo Era, Public School Disciplinary Hearings and Procedural Due Process: Fairfax County School Board v. S.C.
The Virginia Supreme Court recently decided Fairfax County School Board v. S.C., 2019 Va. LEXIS 49 (Record No. 180497, May 30, 2019). The unanimous decision resulted from judicial review of the Fairfax County School Board’s (“Board”) disposition of a complaint against S.C. by three female high school students. See Va. Code §22.1-87. Justice D. Arthur Kelsey wrote the Court’s opinion.
The students alleged that “S.C.,” a fellow student, non-consensually touched their private parts while at school. The Board upheld the decision of two superintendent-appointed hearing officers to impose discipline on S.C. for a violation of the school district’s Student’s Rights and Responsibilities policy (“policy”). The policy forbade students from engaging in “behavior incompatible with” the “educational environment and good citizenship,” including “assault,” defined in part as “improper touching of another person (whether or not consensual),” or “sexual assault or battery upon any person.”
In the initial complaint notice to S.C. and her parents, school officials interchangeably characterized S.C.’s alleged conduct as “sexual assault” and “sexual battery.” The discipline imposed included reassigning S.C. to an alternative learning center for the school year’s balance. It also imposed upon S.C. a year’s probationary status pending her return to regular high school. If S.C. succeeded in the alternative learning center and complied with probationary terms, she would be reassigned to attend a different high school within the district for the following school year.
After receiving the students’ written complaint school officials investigated the allegations, including to discuss them with S.C. and obtain her written response. In that response, S.C. effectively admitted the alleged conduct, however, she asserted that the touchings were permitted or unintentional. School records documented that S.C. knew of the policy’s content regarding improper touchings.
Following parental notification, the principal suspended S.C. for ten days and referred the matter to the superintendent’s office to arrange for an administrative hearing. Prior to the hearing, the principal provided to S.C.’s parents a “redacted copy of the discipline packet” submitted to the Board “in support of the disciplinary referral.” The hearing took place on the tenth day of S.C.’s suspension; she was represented by counsel.
During the hearing and in the trial court, S.C.’s counsel focused on the term “sexual battery,” defined as criminal conduct by Va. Code §18.2-67.4. Counsel contended that S.C.’s conduct did not conform to that statutorily defined term. Nevertheless, based on the policy and S.C.’s hearing testimony, counsel conceded that “there’s a very good possibility” that her conduct warranted discipline.
The hearing officers did not conclude that S.C.’s conduct constituted sexual battery, but instead, determined that she violated the policy for “improper touching of another person (whether or not consensual).” Upon review, the Board upheld the hearing officers’ findings and imposition of disciplinary measures.
For purposes of an annual statistical report to the Virginia Department of Education (“VDOE”) regarding the district’s disciplinary incidents, the hearing officers directed that the record of S.C.’s conduct use the numerical code for “offensive touch - student,” instead of the code for “battery/assault of student – no injury.” The Court held that “[t]he hearing officers’ finding that S.C. had sexually touched students without their consent – thus violating [the policy’s] prohibition against “improper touching of another person (whether or not consensual)…fit within [VDOE’s] generic supporting code of “Offensive Touching Against Student.” [Clarifications added].
On review, the trial court placed great emphasis on S.C.’s placement in an alternative learning center and her anticipated future placement in a different high school. It held, inter alia, that because S.C.’s conduct did not constitute the crime of sexual battery, as statutorily defined, “the effect of [the hearing officers’] ruling was to impose on this Court deference to a finding of fact that no ‘assaults’ occurred.” [Clarification in original]. The trial court then held that “the contradictory findings of fact and resultant disciplinary transgression of ‘offensive touch – student’ ascribed to S.C….are sufficiently dissonant from the process due to constitute arbitrary action, in violation of Va. Code §22.1-87.”
Based upon the Board’s perceived denial of S.C.’s procedural due process rights, the trial court “ordered S.C.’s disciplinary record ‘be changed to vacate the finding of ‘offensive touch – student.’” It then dismissed the disciplinary proceedings “with prejudice.”
The Board appealed the trial court’s judgment. The Court agreed with the Board’s arguments that faulted the trial court’s legal reasoning “as well as its interpretation of the factual record of the disciplinary proceedings.” The Court reversed the trial court and entered final judgment for the Board.
The Court initially noted that in the trial court, the parties did not introduce any evidence beyond the Board-created record. The Court then stated, “[b]ecause 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 record.”
Speaking further to the standard of review, the Court discussed the constitutional origins of a school board’s powers:
In Virginia, judicial review of school disciplinary decisions must take into account the unique constitutional status of school boards. The Constitution of Virginia created school boards and vested them with constitutional powers….Article VIII, Section 7 of the Constitution of Virginia grants school boards the general power of "[t]he supervision of schools.” While this provision "does not define the powers and duties involved in that supervision,"… we have held that certain "decisions regarding the safety and welfare of students are manifestly a part of the supervisory authority granted the school boards under Article VIII[.]"
We have gone even further and observed that given the constitutional status of school boards, "[n]o statutory enactment can permissibly take away from a local school board its fundamental power to supervise its school system."…A well-deserved measure of deference, therefore, must be factored into any application of Code § 22.1-87, which authorizes judicial review with the qualification that "[t]he action of the school board shall be sustained unless the school board exceeded its authority, acted arbitrarily or capriciously, or abused its discretion."
Relying upon U.S. Supreme Court precedent, the Court then framed the procedural due process issue:
"Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint…. By and large, public education in our Nation is committed to the control of state and local authorities." Goss v. Lopez, 419 U.S. 565, 578…(1975) (citation omitted). Consequently, "maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures." New Jersey v. T.LO., 469 U.S. 325, 339-40…(1985).
In this context, "the interpretation and application of the Due Process Clause are intensely practical matters[,] and . . . 'the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.'" Goss, 419 U.S. at 578 (alteration and citation omitted). Due process protects "the opportunity to be heard" by requiring, at a minimum, "some kind of notice" and "some kind of hearing." Id. at 579 (emphases in original) (citation omitted); accordWood, 255 Va. at 91. The sufficiency of "the timing and content of the notice . . . will depend on appropriate accommodation of the competing interests involved." Goss, 419 U.S. at 579.
Noting that Virginia’s constitutional procedural due process protections are “coextensive with those of the federal constitution,” the Court assumed without deciding that S.C. “had some liberty or property interest implicated by her disciplinary transfer from one school to another.” Yet even if she possessed such an interest, “S.C. received all the process she was constitutionally due.”
The Court held that under the Goss standard, S.C. received adequate “’oral or written notice’ of the accusations against her and ‘an opportunity to present [her] side of the story.” The initial characterizations of “sexual assault” and “sexual battery” did not constitute “the only legally relevant notice that S.C. had received.”
In addition, S.C. and her parents received copies of investigative materials describing S.C.’s alleged conduct, including the redacted discipline packet containing the three students’ complaint and S.C.’s written response to it. Nor did the VDOE reporting code matter, as it merely constituted a post-hearing statistical reporting entry. The choice of code did not supplant or conflict with S.C.’s prehearing notices about her behavior. The Court noted that S.C.’s counsel expressed no surprise and made no claim “to have been misinformed regarding the factual allegations against her.”
The Court further noted that the Board properly considered whether S.C.’s conduct violated the policy, not the statutory definition of “sexual battery.” In that regard, the trial court erred in presuming “that due process principles required the school to itemize disciplinary infractions in granular detail. That has never been the standard…[T]he school’s disciplinary rules need not be as detailed as a criminal code which imposes criminal sanction.”
In concluding its analysis, the Court held that “[j]ust as the principal’s prehearing notice cannot be treated like an indictment, the school’s disciplinary rules cannot be treated like criminal statutes…As her own testimony confirmed, S.C. knew of [the policy’s improper touching] prohibition before she engaged in her conduct, while she was doing so, and afterwards.” [Clarification added]
The S.C. decision deserves a thorough reading. My synopsis of its primary holdings cannot do it full justice. The decision blends constitutional procedural due process requirements with Virginia school boards’ constitutionally-derived powers. That mix constitutes a complex one.
The decision, arising from student complaints of unwanted sexual touching, yeilds a powerful mandate to Virginia school boards. In the #MeToo era, and so long as procedural due process rights are respected, local boards possess undeniable authority to protect students and promote the learning environment.
As always, I invite and look forward to your comments.
Norman A. Thomas
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