Petitioner seeks judicial review of the decision of the hearing officer upholding his two-day suspension from Lowes Island Elementary in Loudoun County, Virginia. The matter is now before the Court on motions for summary judgment. Although petitioner suggests a number of reasons why the decision is flawed, the Court finds that it need look no further than to the issue of notice to resolve the instant controversy.
The issue to be decided here is whether failure to give adequate notice to the defendant is a violation of the due process clause of the Constitution.
The instant suspension was for a period of less than ten days. Nevertheless, notice of the offending conduct is required. § 22.1-277, Code of Virginia; In the booklet, “Student Rights and Responsibilities,” distributed by the Loudoun County Public Schools August 1998 and that was receipted for by Brandon’s mother, this entitlement of notice provides for an informal hearing to the student prior to suspension. Notice of alleged misconduct and the accompanying opportunity to explain one’s behavior are essential to due process. It would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done. Throughout the proceedings leading to the hearing officer’s determination to uphold the suspension, the student and his parents were led to believe that the disciplinary action taken against the petitioner was predicated upon his having possession of a weapon on school property. Although the circumstances surrounding the display of the toy gun were discussed, the issue presented during the petitioner’s hearing was not assault or putting others in fear. However, the decision of the hearing officer to uphold the two-day suspension was based upon a finding that the evidence supported the building principal’s determination that the toy weapon was displayed in a fashion to, and in fact did, induce fear in other students. As a matter of law, the petitioner was not given adequate notice of the reason for his suspension. Until the hearing officer made his determination, the suspension was effected and the appeal taken on the petitioner’s possession of a BB gun on school property. This failure to give adequate notice is fatal to the decision of the hearing officer. Such decision is arbitrary and capricious as it violates the Due Process Clause of the United States Constitution as well as the mandates of state law and local policy.
This procedural irregularity undermines the decision presently before the Court on review. Accordingly, the action of the hearing officer was overruled by reason of the failure to give adequate notice of the alleged misconduct.