JROTC cadet Andrew Mikel

The state Supreme Court in Virginia has let stand a ruling that spit wads are “weapons” and using them is “criminal.”

But a public-interest law firm fighting the case says it has asked for a rehearing because of alleged violations of due process of law that occurred in the case.

The case has been argued by the Rutherford Institute, which said a tiny plastic pellet shot out of a plastic tube doesn’t meet the definition of a “weapon” and a long-term suspension for a 14-year-old honor student is inappropriate.

The argument came in the case of 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 “spit wad” was “violent criminal conduct.”

Rita Dunaway, a staff attorney with the Rutherford Institute, argued before the state’s high court that the penalty should be reversed and that the school determination that Mikel “possessed” a “weapon” reached 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 “spit wads” 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 rules.

“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 Rutherford Institute.

The request for a rehearing came after the high court let stant the lower court ruling that such items are “weapons.”

The court refused to grant the institute’s initial request for an appeal.

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

It was on Dec. 10, 2010, when Mikel was sent to the principal’s office after shooting a handful of small, hollow pellets akin to plastic spit wads at fellow students during lunch period.

He was suspended for 10 days and charged with criminal assault and possession of a weapon.

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

The punishment then was upgraded to an extended suspension, and the school board upheld the punishment, as did a local court.

He also was subjected to criminal court proceedings.

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.”

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