TRI In The News

Discipline Case Goes to Court

5/23/2011

TRI IN THE NEWS: DISCIPLINE CASE GOES TO COURT

From The Free Lance-Star
Original article available here.

Rutherford Institute founder John Whitehead said he was "notorious" for shooting spitwads in high school, but never got kicked out for it.

He views the six-month suspension of Spotsylvania High School freshman Andrew Mikel II for shooting small plastic balls through a tube at classmates as zero tolerance run amok.

But three members of the Spotsylvania School Board and the division superintendent see things differently, and on Tuesday a circuit court judge will hear evidence to determine whose side he's on.

Andrew, 14, was initially suspended for 10 days after striking three classmates with plastic balls blown through a tube during school on Dec. 10.

Then on Jan. 3, two weeks after Andrew's hearing before School Safety Coordinator John Lynn, Superintendent Jerry Hill chose to suspend him for the remainder of the school year. Hill sent a letter to Andrew's father--also named Andrew Mikel--informing him of the suspension, and gave Andrew the option of attending the alternative high school at John J. Wright and appealing the decision.

Mikel chose to home-school his son and appealed, going before a three-member School Board discipline committee.

That committee, made up of board members Marty Wilder, Linda Wieland and Gil Seaux, upheld Hill's decision on Jan. 18.

The next month, the Rutherford Institute sued the School Board on Andrew's behalf, seeking his immediate reinstatement to school and expungement of all records related to the suspension.

Whitehead, who is founder and president of the Charlottesville-based civil liberties group, said he has been litigating what he termed zero-tolerance cases since the 1990s.

"I don't think schools are taking into account the long-term effect," he said. "These are not discipline policies. These are punishment policies."

OPTIONS AND GOALS

By the time Andrew's case is heard on Tuesday, there will be just 13 days left in the 2010-11 school year.

Because he was suspended--and not expelled as Whitehead's group erroneously claimed--he can automatically return when the 2011-12 school year begins on Aug. 24.

Andrew has a sister at Spotsylvania High School, but Whitehead was uncertain whether the family planned for him to re-enroll.

Whitehead said his focus now is on clearing Andrew's record to lessen the long-term harm.

Already, Andrew has lost any hope of attending the U.S. Naval Academy as Whitehead and Andrew's father said he'd dreamed.

Mikel served in both the Navy and Marine Corps. His son has been a member of the Junior ROTC.

Andrew, who got three A's and five B's in his one nine-week period at Spotsylvania High, is now considering Virginia Military Institute for college but doesn't know whether he'll gain entrance there, either, since he was also charged with three counts of assault.

His father has said those misdemeanor charges will be dismissed if Andrew completes a diversion program, which includes 24 hours of community service.

Whitehead said the suit is about Andrew's future.

"These are the kinds of things that will follow you for life," he said.

POSSIBLE OUTCOMES

Among school administrators, opinions varies on the appropriate response to Andrew's actions.

Given the code of conduct sections Andrew allegedly violated, he could have been expelled for a year. Expulsion is more serious than suspension and can lead to a permanent ban from the division's schools.

Spotsylvania High School Principal Rusty Davis found expulsion warranted and called it a "clear-cut case," saying it wasn't the first time Andrew had gotten into that kind of trouble, his Dec. 21 email shows.

Andrew had been suspended for four days for bringing to school a comb that looked like a switchblade and showing it to classmates, School Board attorney Jennifer Parrish said in court records.

John Lynn, the hearing officer, didn't support expulsion or long-term suspension, which was the option Hill chose.

Some facts about the Dec. 10 incident are in dispute.

Andrew Flusche, a Spotsylvania attorney handling the case for the Rutherford Institute, described the pellets that struck students as hollow plastic balls 0.23 inch in diameter and weighing 0.2 gram.

In court records, he described the tube used to shoot them as a 3-inch-long plastic body from an ink pen.

However, Parrish said in court records that the pellets were ammunition for an air gun and that Andrew also used a 12-inch long silver metal tube to shoot them.

She also alleged that while only three students made written statements about being hit, as many as 20 students may have been struck.

It's unclear how much of that detail will become relevant at Tuesday's hearing in a Spotsylvania courtroom.

Though both sides will present their arguments, and Andrew and his father are expected to testify, the judge's focus will, by statute, be narrow.

He will review the administrative steps taken by the division and the actions of the School Board's three-member discipline committee.

Then, according to Section 22.1-87 of the Code of Virginia, he will uphold the board's action unless he finds one of three scenarios to be the case: that it "exceeded its authority, acted arbitrarily or capriciously, or abused its discretion."