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Defense counsel argues 'spit wads' not actually 'weapons'

JROTC cadet Andrew Mikel

An attorney with the Rutherford Institute today argued before the Virginia state Supreme Court that a tiny plastic pellet – shot out of a plastic tube – doesn’t qualify as a “weapon” and a long-term suspension for a 14-year-old honor student should be reversed.

The argument came in the case involving Andrew Mikel II, who was a freshman last school year when he was kicked out of Spotsylvania High School for the remainder of the session under a claim by school officials that the “spitwad” was “violent criminal conduct.”

Rita Dunaway, a staff attorney with the Rutherford Institute, argued that the penalty should be reversed and that the school determination that Mikel “possessed” a “weapon” was simply reaching too far.

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The penalty had been affirmed by the Spotsylvania County Circuit Court even though the opinion noted it was “incongruous” that a student found with such “spitwads” could be suspended for the rest of a school year while a student who slugged someone in the face, for example, could be suspended for only 10 days under school procedures.

“It’s absurd that Andrew Mikel was not only suspended for the school year but characterized as a criminal,” said John Whitehead, president of the institute. He’s been working on Mikel’s defense.

“In addition to being arbitrary and capricious, the actions of school officials violate fundamental notions of fairness and established principles of due process. I hope the Virginia Supreme Court will bring justice to bear for Andrew Mikel,” Whitehead said.

Dangerous weapon? Spotsylvania County’s photo of the pen and pellets confiscated from Andrew Mikel

There was no immediate word when a ruling would be expected from the court.

But the situation was aggravated when the school officials not only punished and suspended Mikel, but also referred the honor student active in Junior ROTC and in his church to the criminal court system, where he was accused of assault.

Mikel eventually was placed in a diversion program and took substance abuse and anger management counseling.

The arguments to the state Supreme Court challenged whether the school’s characterization of the actions as “criminal” and the spitwads as “weapons” was valid.

The Rutherford appeal noted 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.”

Mikel has been homeschooled since.

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.”