JROTC cadet Andrew Mikel
The state Supreme Court in Virginia is being asked to overturn a decision by a local school board that called a student’s confession of shooting spitwads at fellow students “violent criminal conduct” that involved “attempting to kill, shoot, stab, cut, wound, otherwise physically injure or batter another person.”
The appeal has been filed by attorneys with the Rutherford Institute in a case involving a 9th grade student at Spotsylvania High, who was sent to the principal’s office after shooting a handful of small, hollow pellets akin to plastic spitwads at fellow students.
The penalty that resulted – expulsion for the rest of the year – is far out of proportion to the offense, according to the filing to the court.
School officials referred the student, Andrew Mikel II, to the local police department at the time.
The Rutherford appeal notes that no one was hurt, and there was no indication that there was any desire to injure anyone, so the school’s actions “were excessively punitive and violate the constitutional guarantee to due process of law.”
It was in December 2010 when Mikel was removed from the school.
“It’s absurd that Andrew Mikel was not only suspended for the school year but characterized as a criminal,” said John W. Whitehead, president of The Rutherford Institute. “In addition to being arbitrary and capricious, the actions of school officials violate fundamental notions of fairness and established principles of due process.”
Dangerous weapon? Spotsylvania County’s photo of the pen and pellets confiscated from Andrew Mikel
Mikel, an honor student active in Junior ROTC, confessed to school officials he had tried blowing the small plastic pellets out of a dissembled pen because he thought it would be “cool.” He aimed at students’ backpacks.
The consequences were the suspension, juvenile criminal proceedings for assault, a resulting diversion program with mandatory substance abuse and anger management counseling.
A circuit court affirmed the school board’s decision even while describing it as “incongruous,” because it wouldn’t call the actions an abuse of discretion.
However, the appeal to the high court highlights the incompatibility of equating a pellet blown out of a pen with “any pistol, revolver, rifle, shotgun, pellet pistol or rifle, B-B gun or air rifle, starter gun, crossbow or any device capable of firing a missile or projectile.”
School officials admitted at the circuit-court hearing that the “small plastic balls Andrew shot were not intrinsically dangerous” and they “had done no tests with the items to determine whether or not they were event capable of inflicting injury.”
The student “seeks this court’s review to correct what … has been a grave miscarriage of justice that threatens Andrew’s future – a future that appeared, by all accounts, to be exceedingly bright up until the board meted out a draconian and unjust punishment for Andrew’s childish prank,” the appeal says.
“While the phrase ‘otherwise physically injuring or battering any person’ may well have been intended to serve as a catch-all provision, the most fundamental principles of fairness and due process demand that it be subject to some discernable limitation. Absent such limitation, simple, harmless acts such as tipping the bill of another student’s cap or tossing a wad of paper at another student could be classified – at the whim of school officials – as ‘violent criminal conduct.'”
Whitehead has characterized schools’ “zero-tolerance” policies as a “dangerous, monolithic mindset.”
“My son realizes what he did was foolish. He knows he shouldn’t have done that,” Mikel’s father said. “It wasn’t appropriate, it was horseplay. Some punishment should have occurred, but they went overboard about it. If they gave him a couple of days detention I would understand, but to classify him as a violent criminal bringing weapons to school and using them to harm kids, it’s just ridiculous.”
Since his suspension, the Mikel family has homeschooled Andrew.