PRESENT: Lemons, C.J., Mims, McClanahan, Powell, Kelsey, and McCullough, JJ., and 

Russell, S.J.

FAIRFAX COUNTY SCHOOL BOARD

 OPINION BY

v. Record No. 180497 JUSTICE D. ARTHUR KELSEY

 MAY 30, 2019 

S.C., BY HER NEXT FRIEND, FAREN COLE

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

David Bernhard, Judge 

 The 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. 

I.

Code § 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.1

 Because we, like the circuit court, independently review the record from the 

 

1

 By its order, the circuit court has sealed portions of the administrative disciplinary 

record, and accordingly, we have sealed one of the two joint appendices filed in this appeal. To 

the extent that we mention facts found only in the sealed record, we unseal only those specific 
2 

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.2

A.

In 2016, S.C. 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 examples. Id.

In 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, S.C. 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. 

 

facts, finding them relevant to our decision. The remainder of the previously sealed record 

remains sealed.

2

 We also may take judicial notice of “any book, record, register, journal, or other official 

document or publication purporting to contain, state, or explain [the] law” of the Commonwealth 

or its political subdivisions or agencies, Code § 8.01-386; Rule 2:202, as well as “all official 

publications of this Commonwealth and its political subdivisions and agencies required to be 

published pursuant to the laws thereof,” Code § 8.01-388; Rule 2:203. 
3 

On 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. 

The 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, S.C. 

provided the school with a written statement in response to the allegations. In it, S.C. 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 293. 

Later 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 546.3

 The 

 

3

 Code §§ 22.1-277.05(A) and 22.1-277.2:1(B) authorize the adoption of school board 

regulations that allow the division superintendent to appoint a designee to make disciplinary 

decisions regarding suspension and attendance in an alternative education program subject to 

review by the school board. 
4 

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. 

The principal’s letter also informed S.C. that, upon request, S.C. 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, S.C. 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. 

B.

The 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).4

 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, S.C. 

acknowledged that she understood that she was accused of “[s]exual assault against other 

students.” Id. at 424. 

Early 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 

 

4 The SR&R defines a “Day” to mean “a school day unless the context requires 

otherwise,” 2 J.A. at 363, 407, and specifically defines a “Short-Term Suspension” as a 

“[d]isciplinary action that denies school attendance for a period not to exceed ten days,” id. at 

364, 409. 
5 

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. 

In her testimony at the disciplinary hearing, S.C. stated that the allegations against her 

were only “somewhat accurate.” Id. at 486. Among her qualifications, S.C. 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, S.C. 

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.

S.C. 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 policy: 

[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 you 

mean?

[Hearing Officer]: Breasts, vaginal area, buttocks.

[S.C.]: Yes.

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 
6 

 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. 

The 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 conduct.” Id. 

The 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 year if S.C. could complete the year successfully at the 

alternative learning center and if she could comply with all of the probationary conditions. 

Code § 22.1-279.3:1 requires division superintendents statewide annually to report data 

of certain incidents regarding discipline, crime, or violence to the Virginia Department of 

Education (“VDOE”). To do this, division superintendents use uniform reporting codes. The 

hearing officers in S.C.’s case ordered that her “discipline record” be amended by removing any 
7 

reference to “battery/assault of student-no injury” and replacing it with the expression “offensive 

touch-student.” 2 J.A. at 554. A reiteration of the later phrase, “Offensive Touching Against 

Student,” is a generic reporting code “designated by the [VDOE] for school systems to use when 

reporting a student’s ‘improper physical contact against [another] student that is offensive, 

undesirable, and/or unwanted, as determined by the victim.’” Id. at 570 n.2 (second alteration in 

original) (citation omitted).

5

 The hearing officers’ finding that S.C. had sexually touched 

students without their consent — thus violating the SR&R prohibition against “improper 

touching of another person (whether or not consensual),” id. at 554 — fit within the generic 

reporting code of “Offensive Touching Against Student” required by the VDOE, R. at 726-27. 

C.

 After an unsuccessful appeal to the Fairfax County School Board, S.C. filed a petition for 

judicial review under Code § 22.1-87 in the circuit court. The court reviewed the record of 

S.C.’s disciplinary proceedings, received briefs and arguments from counsel, and entered a final 

order holding that the School Board had acted arbitrarily in disciplining S.C. because its decision 

had violated S.C.’s constitutional right to due process. 

In response to a motion to reconsider by the School Board, the court entered an amended 

final order amplifying its reasoning and restating that “the disciplinary proceedings against [S.C.] 

are therefore dismissed with prejudice by this Court.” 1 J.A. at 277.6

 In its amended final order, 

the circuit court reasoned that: 

 

5 See also 1 J.A. at 99-100; R. at 726-27 (VDOE, Comprehensive User Guide for 

Discipline, Crime, and Violence (DCV) Data Collection and Submission (rev. 2017)). 

6

 Given our holding, we need not address whether the circuit court’s dismissal with 

prejudice of the disciplinary proceedings was a proper remedy for the alleged due process 

violation. See generally United States v. Stoltz, 720 F.3d 1127, 1133 (9th Cir. 2013) (“Broadly 

speaking, due process violations are remedied by providing the aggrieved party the process he or 

she was deprived (or an equivalent).” (citation omitted)); Huntley v. North Carolina State Bd. of 
8 

 Prior to the disciplinary hearing, the school had notified S.C. of the 

allegations of “sexual battery” made against her by three students. 

Id. at 272 (citation omitted). 

 “[I]n seeming contradiction” to that finding, the hearing officers 

could not determine whether S.C.’s conduct “rose to the level of 

sexual battery” and directed that the “battery/assault of student-no 

injury” phrase be removed from S.C.’s disciplinary record. Id. at 273 

(citation omitted). 

 “The effect of [the hearing officers’] ruling was to impose on this 

Court deference to a finding of fact that no ‘assaults’ occurred.” Id.

 After exonerating S.C. of assault or battery, the hearing officers held 

that S.C. had committed “offensive touch-student.” Id. at 273-74. 

 The SR&R provided “notice to students” that they could be 

disciplined for “some variant of ‘assault’ or ‘improper touching of 

another person (whether or not consensual).’” Id. But the SR&R did 

not provide notice to students that they could be disciplined for 

“offensive touch-student.” Id. at 274. 

 “The main difficulty” identified by the circuit court was that the 

hearing officers had rejected a holding that S.C. had committed 

“assaults” yet had held that S.C. had committed “offensive touchstudent,” an undefined disciplinary offense not found in the 

SR&R. Id.

Based upon this reasoning, the court concluded: “The Court HOLDS . . . that the 

contradictory findings of fact and resultant disciplinary transgression of ‘offensive touch-student’ 

ascribed to S.C. by [the hearing officers], as affirmed by the School Board, are sufficiently 

dissonant from the process due to constitute arbitrary action” in violation of Code § 22.1-87. 

1 J.A. at 276-77. As a remedy, the court thus ordered that S.C.’s disciplinary record “be changed 

to vacate the finding of ‘offensive touch-student.’” Id. at 277. 

 

Educ., 493 F.2d 1016, 1021 (4th Cir. 1974) (remanding for district court to enter order 

adjudicating that a school board’s decision is of “no effect” and specifying that the court’s order 

is “without prejudice” to the board’s right to determine the issue on the merits — this time 

affording the appellant due process).
9 

II.

On appeal, the School Board finds fault with the circuit court’s legal reasoning as well as 

its interpretation of the factual record of the disciplinary proceedings. We agree with the School 

Board’s argument on several points. 

A. 

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. Wood ex rel. Wood v. Henry Cty. Pub. Sch., 255 

Va. 85, 91 (1998); DeFebio v. County Sch. Bd., 199 Va. 511, 513 (1957). 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,” DeFebio, 199 Va. at 513, 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,” Commonwealth v. Doe, 278 Va. 223, 230 (2009). 

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.” Russell Cty. Sch. Bd. v. Anderson, 238 Va. 

372, 383 (1989). 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.” A school board’s actions are “arbitrary and 

capricious when they are ‘willful and unreasonable’ and taken ‘without consideration or in 
10 

disregard of facts or law or without determining principle.’” School Bd. v. Wescott, 254 Va. 218, 

224 (1997) (quoting Black’s Law Dictionary 105 (6th ed. 1990)). 

B. 

“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.L.O., 469 U.S.

325, 339-40 (1985).7

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); accord Wood, 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. 

Due process in connection with suspending a student from school for “10 days or less” 

requires “that the student be given oral or written notice of the charges against him and, if he 

denies them, an explanation of the evidence the authorities have and an opportunity to present his 

 

7 Procedural due process “protections afforded under the Constitution of Virginia are coextensive with those of the federal constitution,” Shivaee v. Commonwealth, 270 Va. 112, 119 

(2005), and thus, “[t]he corresponding provisions of the Virginia Constitution go no further than 

their federal counterparts,” Lilly v. Commonwealth, 50 Va. App. 173, 184 (2007). 
11 

side of the story.” Id. at 581; accord Wood, 255 Va. at 91-92; cf. Code § 22.1-277.04 (tracking 

closely the Goss requirements).8 This minimal process does not include “the opportunity to 

secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own 

witnesses to verify his version of the incident” or any other “truncated trial-type procedures.” 

Goss, 419 U.S. at 583. “Longer suspensions or expulsions for the remainder of the school term, 

or permanently,” however, “may require more formal procedures.” Id. at 584.

 The United States Supreme Court has never specifically addressed the amount of process 

due, if any, when a student is transferred to another school because of a disciplinary infraction. 

In Goss, two of the students had received disciplinary transfers. See id. at 569-70 nn. 4-5. 

Without comment, the Supreme Court nonetheless calibrated the requisite due process 

protections based solely upon the 10-day-or-less suspensions that these students also had 

received. See id. at 569-70 nn. 4-5, 581.9

 Since Goss, many lower courts have held that a 

 

8

 Typically, in this situation, “[s]ince the hearing may occur almost immediately 

following the misconduct, it follows that as a general rule notice and hearing should precede 

removal of the student from school.” Goss, 419 U.S. at 582. That said, “[s]tudents whose 

presence poses a continuing danger to persons or property or an ongoing threat of disrupting the 

academic process may be immediately removed from school. In such cases, the necessary notice 

and rudimentary hearing should follow as soon as practicable . . . .” Id. at 582-83. 

9 See Wayne v. Shadowen, 15 Fed. Appx. 271, 290 n.31 (6th Cir. 2001) (interpreting Goss

to suggest, “by negative implication, that discipline less invasive of the student’s state-given 

property right to an education, than physical suspension from the school, which would bring his 

consequent extirpation from all of the academy’s educational opportunities and options, may not 

trigger any predicate due process requirements” (emphasis in original) (citing Goss, 419 U.S. at 

580-84)); Donovan v. Ritchie, 68 F.3d 14, 18 (1st Cir. 1995) (“But the mere fact that other 

sanctions are added to a short suspension does not trigger a requirement for a more formal set of 

procedures. In Goss itself one of the plaintiffs had not only been suspended, but had been 

transferred to another school.”); Patrick v. Success Acad. Charter Sch., Inc., 354 F. Supp. 3d 

185, 215 (E.D.N.Y. 2018) (recognizing that some courts “note that in Goss itself, although one 

of the plaintiffs ‘had been transferred to another school,’ the Supreme Court did not find that he 

was entitled to any additional procedural due process protections other than those he was given 

in connection with his short-term suspension, implying that no procedural due process 

protections are required where the punishment is a transfer” (citation omitted)).
12 

disciplinary transfer to an alternative school does not deprive a student of a property interest in 

education “absent some showing that the education received at the alternative school is 

significantly different from or inferior to that received at his regular public school,” Buchanan v.

City of Bolivar, 99 F.3d 1352, 1359 (6th Cir. 1996) (collecting cases), superseded by statute on 

other grounds, William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 

Pub. L. No. 110-457 § 221(2), 122 Stat. 5044, 5067 (codified as amended at 18 U.S.C. § 1595(a) 

(2008)).10

Other courts deem a disciplinary transfer sufficiently punitive to warrant due process 

protections, without contrasting the education at the transferor and transferee schools. See, e.g., 

Everett v. Marcase, 426 F. Supp. 397, 400-01 (E.D. Pa. 1977) (stating that “[a]ny disruption in a 

primary or secondary education, whether by suspension or involuntary transfer, is a loss of 

educational benefits and opportunities” and applying due process procedures under Goss because 

a transfer is “as detrimental to the pupil’s interests as a short term suspension”); D.C. v. School 

Dist. of Phila., 879 A.2d 408, 419 (Pa. Commw. Ct. 2005). 

C. 

We assume, without deciding, that S.C. had some liberty or property interest implicated 

by her disciplinary transfer from one school to another. Even if she had such an interest,

however, S.C. received all the process she was constitutionally due. The circuit court erred in 

concluding otherwise.

 

10 See, e.g., Zamora v. Pomeroy, 639 F.2d 662, 669 (10th Cir. 1981); Patrick, 354 F. 

Supp. 3d at 216-18, 247-50 (collecting cases); Lindsey v. Matayoshi, 950 F. Supp. 2d 1159, 

1169-70 (D. Haw. 2013); J.K. ex rel. Kaplan v. Minneapolis Pub. Sch., 849 F. Supp. 2d 865, 

871, 873 (D. Minn. 2011); J.S. ex rel. Duck v. Isle of Wight Cty. Sch. Bd., 362 F. Supp. 2d 675, 

685 (E.D. Va. 2005). 
13 

1. 

In this case, three students provided detailed, written statements to the school 

administration alleging that S.C. had sexually assaulted them. The school principal promptly 

suspended S.C. for 10 school days and referred the matter for a hearing. The hearing was 

initially scheduled for Day 8 of the suspension but was postponed until Day 10 at the request of 

S.C.’s father. As the circuit court implicitly acknowledged, the 10-day suspension violated no 

due process principles. Under Goss, S.C. received “oral or written notice” of the accusations 

against her and “an opportunity to present [her] side of the story.” 419 U.S. at 581. 

Apparently unconcerned about the 10-day suspension, the circuit court focused 

exclusively on the hearing officers’ decision to reassign S.C. to an alternative school and to 

impose probationary conditions on her readmittance to a regular public school. The court 

focused its analysis on the specific wording of the principal’s letter to S.C. before the hearing

(which referred to a “sexual battery” charge) and the referral letter, issued the same day to the 

division superintendent’s hearing officer (which recited a “sexual assault” charge). See 1 J.A. at 

272-74. These two letters, the court presumed, constituted the only legally relevant notice that 

S.C. had received. 

The court then determined that S.C. was exonerated of these charges because the hearing 

officers had declined to find that S.C. had committed “sexual battery” and ordered the deletion of 

any mention of “battery/assault of student-no injury” from S.C.’s disciplinary record. Id. at 273-

74, 276-77. “The effect of the [hearing officers’] ruling,” the circuit court reasoned, “was to 

impose on [the circuit court] deference to a finding of fact that no ‘assaults’ occurred.” Id. at 

273. From there, the court observed that the disciplinary infraction that S.C. had allegedly 

committed — “offensive touch-student” — was not an infraction at all because this term was
14 

“neither contained in nor defined by the SR&R.” Id. at 274. It followed, the court concluded, 

that “the contradictory findings of fact and resultant disciplinary transgression of ‘offensive 

touch-student’ . . . are sufficiently dissonant from the process due to constitute arbitrary action” 

in violation of Code § 22.1-87. Id. at 276-77. 

2. 

We find the circuit court’s factual predicates mistaken and its rationale legally erroneous. 

Our disagreement begins with the circuit court’s view that the hearing officers boxed themselves 

in by stating that they “were not able to determine” whether S.C.’s nonconsensual sexual 

touching “rose to the level of sexual battery.” Id. at 273 (citation omitted). That finding, 

according to the circuit court, precluded the hearing officers from later finding that S.C. had 

offensively touched other students because battery (apparently according to its common-law 

definition) includes nonconsensual, offensive touching. The court’s reasoning fails, however,

because the hearing officers were not considering common-law battery. They were responding 

to the statutory definition of “sexual battery” that S.C.’s counsel had asserted. See 2 id. at 450-

52. That definition requires a showing that the act was accomplished “by force, threat, 

intimidation, or ruse,” Code § 18.2-67.4, a qualification that the VDOE’s statutory policy 

guidelines recognize.11

 

11 Code § 22.1-279.6(A) requires the Virginia Board of Education to establish guidelines 

and to develop “model policies for codes of student conduct to aid local school boards in the 

implementation of such policies.” Moreover, Code § 22.1-279.6(B) requires local school boards 

to adopt “regulations on codes of student conduct that are consistent with, but may be more 

stringent than, the guidelines of the Board.” The Board of Education’s “Student Code of 

Conduct Policy Guidelines” provides: “Definitions of offenses that are also violations of law 

should be consistent with statutory definitions. When offenses are not defined in the Code of 

Virginia, definitions developed for the VDOE Annual Discipline, Crime, and Violence Report 

may be helpful in establishing local operational definitions.” Virginia Bd. of Educ., Student 

Code of Conduct Policy Guidelines 13 (2015) (emphases omitted), http://www.doe.virginia.gov 

/boe/guidance/safety/student_conduct.pdf. The VDOE’s reporting code for “Sexual Battery 
15 

Thus, for good reason, the hearing officers found it unnecessary to determine whether 

S.C.’s sexual touching of other students had been accomplished by force, threat, intimidation, or 

ruse. It was enough that they specifically found that S.C. had sexually touched several students 

without their consent and that they expressly rejected S.C.’s claims to the contrary. S.C.’s 

nonconsensual touching, the hearing officers found, had been “willful, deliberate, and far outside 

the bounds of acceptable student conduct.” 2 J.A. at 554. These factual findings fully justified

the hearing officers’ determination that S.C. had violated the SR&R’s express prohibition against 

“improper touching of another person (whether or not consensual),” id.

The circuit court similarly misunderstood the hearing officers’ use of the phrase 

“offensive touch-student.” The hearing officers never asserted that this phrase is a specific, 

verbatim disciplinary infraction in the SR&R. Compare 1 id. at 273-74, with 2 id. at 554. Nor 

did the hearing officers hold, as the court presumed, that S.C. had violated some undefined 

disciplinary prohibition against “offensive touch-student.” Compare 1 id. at 276, with 2 id. at 

554. Instead, they held that S.C.’s nonconsensual, offensive, and sexual touching had violated 

the clearly stated SR&R prohibition against “improper touching of another person (whether or 

not consensual),” 2 id. at 554. 

As noted earlier, “offensive touch-student” merely referred to a state-wide, uniform 

reporting code used for statistical purposes. See id. at 570; see also 1 id. at 99; R. at 726-27.12 

 

Against Student” (“SB2”) requires “an offensive or intentional threat, intimidation or ruse or 

physical helplessness of sexual abuse. Sexual battery is a Class I misdemeanor.” VDOE, 

Discipline, Crime, and Violence Annual Report 71 (2016) [hereinafter 2016 Report], 

http://www.doe.virginia.gov/statistics_reports/school_climate/discipline_crime_violence/14-

15_annual_report.pdf (referencing Code § 18.2-67.4). 

12 Counsel for the School Board pointed out this fact during oral argument before the 

circuit court:

[T]he offensive touching [phrase] is not just a term that’s made up 

out of thin air. It’s actually a term used by the [VDOE]. And one 
16 

Code § 22.1-279.3:1 requires all division superintendents in Virginia annually to report data to 

the VDOE regarding certain incidents of discipline, crime, and violence. The hearing officers’ 

finding that S.C. had sexually touched students without their consent — thus violating the SR&R 

prohibition against “improper touching of another person (whether or not consensual),” 2 J.A. at 

554 — fit within “Offensive Touching Against Student,” a generic reporting code required by 

the VDOE, R. at 726-27.13 The circuit court erred, therefore, in presuming that the latter, and 

not the former, was the specific SR&R violation committed by S.C. that the hearing officers had 

found. 

3. 

With these factual predicates corrected, we can now answer the question whether the

School Board (by affirming the hearing officers’ disciplinary decision) acted arbitrarily in 

violation of S.C.’s procedural due process rights. We see no legal basis for concluding that the 

School Board did so. 

“A school is an academic institution, not a courtroom or administrative hearing room.” 

Board of Curators v. Horowitz, 435 U.S. 78, 88 (1978). The proper exercise of judicial review,

therefore, recognizes that “maintaining security and order in the schools requires a certain degree 

of flexibility in school disciplinary procedures,” T.L.O., 469 U.S. at 339-40. Especially in the 

 

of the things the schools have to do, Your Honor, is file periodic 

reports with the state as to how many disciplinary incidents you 

had in this or that category . . . . One of those Virginia definitions 

is called offensive touching against a student. 

1 J.A. at 99. 

13 The VDOE’s annual reports consistently use the reporting code of “Offensive Sexual 

Touching Against Student” (“SX2”) for this type of incident. VDOE, Discipline, Crime, and 

Violence Annual Report 4, 8, 15 (2018), http://www.doe.virginia.gov/statistics_reports/school_

climate/index.shtml; VDOE, Discipline, Crime, and Violence Annual Report 12, 15, 56, 74 

(2017), http://www.doe.virginia.gov/statistics_reports/school_climate/discipline_crime_violence/

15-16_annual_report.pdf; 2016 Report, supra note 11, at 12, 15, 55, 73; see also R. 726-27. 
17 

context of school discipline, “the interpretation and application of the Due Process Clause are 

intensely practical matters,” Goss, 419 U.S. at 578. 

Viewed from this pragmatic perspective, the notice afforded to S.C. was constitutionally 

sufficient. The circuit court mistakenly treated the principal’s referral letter as if it were a

criminal indictment. It was not, of course, and did not need to be. The letter simply summarized 

in a single phrase (“sexual battery”) the allegations that S.C. had already been told in detail. The 

assistant principal orally notified S.C. of “the facts known to school personnel,” 2 J.A. at 542, 

which were later disclosed in detailed, written, victim-impact statements from the students, see

R. at 757, 763. In response, S.C. provided a detailed, written reply to the allegations. Before the 

hearing, the school offered to provide S.C. with “a redacted copy of the discipline packet that is 

submitted in support of the disciplinary referral.” 2 J.A. at 330-32, 543. The victim-impact 

statements were included in the packet. See R. at 757, 763. 

Due process required the school officials to “inform [S.C.] of [her alleged] dereliction”14

and to give her a fair opportunity to “tell [her] side of the story in order to make sure that an 

injustice is not done.” Goss, 419 U.S. at 580. The assistant principal’s oral description of the 

“facts known to school personnel,” 2 J.A. at 542, coupled with the principal’s letter and the 

discipline packet, notified S.C. of the allegations against her.15 This conclusion is corroborated 

 

14 See, e.g., J.S., 362 F. Supp. 2d at 683 (concluding that written notice “that there were 

allegations of ‘sexual activity’” was a sufficient “explanation of the evidence” pursuant to due 

process because “the court finds it doubtful that a more detailed description of [the victim’s] 

allegations would have enabled [the student] to defend himself better at the hearing before the 

Disciplinary Committee”).

15 Cf., e.g., Santiago-Lugo v. Warden, 785 F.3d 467, 475-76 (11th Cir. 2015) (holding, in 

the context of habeas corpus, that an inmate was not denied due process by a disciplinary hearing 

officer’s finding that he had violated a different rule from the one contained in the notice because 

the inmate had notice of the “conduct” constituting the basis for his rule violation); Northern v. 

Hanks, 326 F.3d 909, 911 (7th Cir. 2003) (per curiam) (“Because the factual basis of the 

investigation report gave [the inmate] all the information he needed to defend against the 
18 

by the fact that S.C.’s counsel never once expressed surprise or claimed to have been 

misinformed regarding the factual allegations against her. 

The circuit court’s focus on the phrase “sexual battery” in the principal’s letter to S.C. 

and on the phrase “sexual assault” in the principal’s referral letter to the hearing officers 

presumed that due process principles required the school to itemize disciplinary infractions in 

granular detail. That has never been the proper standard. “Given the school’s need to be able to 

impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the 

educational process, the school disciplinary rules need not be as detailed as a criminal code 

which imposes criminal sanctions.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 

(1986); see also Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 442 (4th Cir. 2013). See 

generally Emily Suski & Angela Ciolfi, Education Law and Advocacy § 5.202(A), at 22 (8th ed. 

2018) (stating that “school board policies . . . may be written in fairly broad terms as long as they 

give ‘adequate warning’ that certain conduct may subject a student to sanction” (quoting Fraser, 

478 U.S. at 686)). 

In Fraser, for example, the United States Supreme Court held that a student disciplined 

for violating a school rule that prohibited “obscene” language after he had given a lewd speech 

could not complain that “he had no way of knowing that the delivery of the speech in question 

would subject him to disciplinary sanctions.” 478 U.S. at 686. This word may have a technical 

definition in the argot of a criminal code, but it carries a far less precise meaning in the context 

of a rule of conduct designed for maintaining discipline and order in a school. It was not just 

 

trafficking charge, the reviewing authority’s modification [from a different charge] did not 

deprive [the inmate] of his due process rights.”); Holt v. Caspari, 961 F.2d 1370, 1373 (8th Cir. 

1992) (concluding that an inmate was not denied due process by a prison disciplinary 

committee’s finding that he had violated a different rule from the one contained in the notice 

because an inmate had notice of “the factual charge” constituting the basis for his rule violation).
19 

wrong, the Supreme Court said, but “wholly without merit,” id., to believe that due process 

principles require school disciplinary rules to have the detail of “a criminal code,” id.

Just as the principal’s prehearing notice cannot be treated like an indictment, the school’s 

disciplinary rules cannot be treated like criminal statutes. The SR&R broadly prohibited “any 

behavior incompatible with a K-12 educational environment and good citizenship.” 2 J.A. at 

383. The policy then identified “examples of prohibited conduct,” stating that acts for which a 

student might be disciplined “include, but are not limited to” various specific acts. Id. Within

the broad category entitled “[a]ssault,” a list of numerous prohibited acts appeared, including 

“[i]mproper touching of another person (whether or not consensual)” and “[s]exual assault or 

battery upon any person.” Id. at 384. As her own testimony confirmed, S.C. knew of this 

prohibition before she engaged in her conduct, while she was doing so, and afterwards.

III.

Applying the “intensely practical” principles of due process applicable to school 

disciplinary proceedings, Goss, 419 U.S. at 578, we find nothing in this record suggesting that 

the School Board acted arbitrarily in violation of S.C.’s due process rights. Because the circuit 

court erred in concluding otherwise, we vacate the court’s final order and enter final judgment 

dismissing S.C.’s petition with prejudice. 

 Reversed, 

 vacated, and 

 final judgment.