by James C. Sherlock

This is addressed directly to Virginia public school principals.

You are compliant with current Virginia law whether you report assault and battery to police or do not.

Bad law makes for bad policy.

Depending upon your school division, your requirements may vary. A lot.

In gambling, and this issue is a big gamble for you, if you don’t know who the mark is, it is you.

The current law on reporting of assault and battery to police reflects a poorly conceived and poorly written attempt by Virginia Democrats in 2020 to break what they called the “school-to-prison pipeline.” They made reporting to police conditional upon on-scene medical and legal findings – by you.

The Board of Education has done nothing to improve the matter. School divisions are all over the spectrum on what to do about reporting. You cannot carry out either the law or many of the school division policies without personal jeopardy.

First: damned if you don’t. You may put yourself in legal and administrative jeopardy both within the school system and in civil court and perhaps even in criminal court when you do not immediately report assault and battery to police.

  • Say the victim, with nothing you judge on the spot to be “bodily injury,” dies or suffers serious injury. And first responders do not come because you did not report the crime. Is that criminal or civil neglect on your part? I don’t know. Do you want to find out?
  • Or say the perpetrator goes on to commit a more serious crime. Which happens. Same question. Do you want to find out the answer?

Second: damned if you do. Virginia law for decades required schools to report assault and battery to police. No conditions were described in the requirement.

In the current day, reporting to police of assault and battery can expose you to “retraining” or disciplinary action including removal if there are too many such reports and/or the report totals when sorted by demographics prove not “equitable.”

You may be seen as contributing to the “school-to-prison pipeline.” Or damaging the reputation of your school.

Or aggravating the superintendent.

Or something.

Net result. Net of all of that, by far the worst jeopardy is in not reporting.

Prominent failures to report batteries or to expel students after batteries have been followed by school tragedies, reputational damage, firings, pending criminal investigations and civil lawsuits.

Criminal charges against the principal and/or an AP may still be filed in a case of failure to report in Newport News.

Bottom line. The law gives you authority to call police when faced with a case of battery in your school.

The law is a weasel when it says you “may,” not you “shall.” Endangerment accompanies discretion here. Division policies are all over the place on the matter.

I am not an attorney. Neither are you. Nor is either of us a physician. Your school nurse may not be trained in trauma and is unlikely to have the equipment to do the proper tests. I recommend you do not try to act as a lawyer or doctor as Virginia law and division policies tacitly ask you to do.

Not reporting is the only way you can lose big in what Virginia law makes a game. And by reporting you can make your school safer.

The rest of this research shows both examples of reporting and failure to report and extremely wide variations in school division policies and regulations that  you must follow.

I offer a look below at the current written policies and regulations on notification of law enforcement of six Virginia school divisions.

It shows at least one case in which division superintendent guidance expands greatly upon school board policy. In another instance a school division policy provides legal definitions that appear not to be correct.

You need changes to Virginia law and conforming changes to school division policies to get this assault and battery monkey off your back and put it into the hands of police and EMS personnel where it belongs.

In the meantime, Virginia law and division policies require you to make legal and medical decisions about assault and battery that you are not equipped by education and experience to make.

You are the fall guy if those decisions do not go well. Since you “may” report to police, I recommend you do it.

If you want examples to prove the point, read on.

An example of battery reported to police, in this case the SRO.

The first of two Loudoun high school forcible sexual assaults by the same student.  There was an SRO on premises, but the perpetrator was loose in the building for three hours after the assault.

That happened the Friday before Memorial Day weekend.

On Tuesday, both the perpetrator and victim were back in school at the decision of the principal because the school division had no policy on the matter.  A judge later found the 15-year-old guilty of sexual battery, abduction and two counts of sodomy in the sexual assault at Stone Bridge High School.

Because of the presence of the SRO, Timothy Flynn did not face the choice of calling law enforcement and remains principal at Stone Bridge.

A grand jury indicted former Superintendent Scott Ziegler and the school district’s spokesman.

Two examples of assault and battery (strangulation) not reported to police by the principal. 

Strangulation is certainly a form of assault and battery by common definition.

But under Code of Virginia § 18.2-51.6. strangulation of another resulting in bodily injury is also a separately defined Class 6 felony.

Example 1. the kid who shot his teacher in Newport News after the principal failed to notify police of an earlier strangulation of a teacher by the same child. Big mistake.  The principal and AP are gone.  Criminal investigations are reportedly underway of both.  A huge civil lawsuit has been filed.

Example 2.  The continuing saga of the strangulation of a student at Fairfax County’s Walt Whitman Junior High on a Fairfax County school bus.

The assault left red marks and bruises pictured above, apparently crossing the legal threshold set by the Virginia Supreme Court for bodily injury, and thus amounted to felony strangulation based on case law.

The child’s mother filed a police report.  There is no reporting to suggest the school did so.

Then she got her son a two-week protection order against the girl who had strangled him, in which the girl was required to stay 50 feet away from him at all times.  The school failed to enforce the order.  Note:  the ink is barely dry on a brand new Loudoun County policy on enforcement of protective orders quickly written after the Fairfax County incident.  Does your division have a policy on protective orders?

The mother has withdrawn her child from that school.  The perpetrator was at last report still a student there. Lawsuit inevitably to follow.

Fairfax County Schools is “beginning the search for a new principal for Whitman Middle School”.

Overview of research.  I looked at three city and three county school division policies and regulations.

By reading each, I could virtually feel many of the the school boards and superintendents squirming about how to address the issue of reporting assault and battery to police given the ill-begotten law.

  1. Some of the current school division reporting policies and regulations I looked at had not been revised since the 2022 changes to the reporting law.  Virginia Beach hasn’t changed its applicable policy 5-37.1 since 2013, giving us a look at how things used to be.   Check the date on yours.
  2. All of them to some degree require principals to have knowledge of what constitutes bodily injury in Virginia and to evaluate such injuries.  None of the policies defines bodily injury for you.  That leaves the interpretation to you. And the liability to you.
  3. Some of the divisions, as in Bedford County and Newport News, offer decision matrices by specific offense to direct what to report to police.  The other four in my survey do not.  If your division does not, you or your union should ask the superintendent and school board to update the policy to provide one.  And ask him or her to provide a definition of bodily injury.  Help them by pointing out how the Supreme Court of Virginia defined it in 2015.
  4. Neither state law nor the school board policies and regulations single out strangulation as a separate offense.  Two of the three examples I offered above involved strangulation.  Strangulation is a felony, while battery is either a misdemeanor or felony depending upon intent.  Request that the superintendent and school board include strangulation with or without injury in instructions on reporting to police, and make reporting mandatory.
  5. One of the policies requires principals to have broad knowledge of the Virginia Criminal Code to report “behavior (that is) deemed a criminal offense by local authorities.”  You don’t have that knowledge.
  6. When school division policies do attempt to provide legal definitions they can get themselves in trouble, so they better get a good attorney to check their work.

To get to the scenes of the hottest recent controversies, I looked at Fairfax County, Newport News and Loudoun County.  To distribute that regionally, I also looked at Richmond, Bedford County and Virginia Beach.

State law.  § 22.1-279.3:1.  Long story short, it says you “may” report to police “assault and battery that results in bodily injury of any person on a school bus, on school property, or at a school-sponsored activity.”   [Emphasis added.]

The word “may” puts you and I would argue your staff and all other students in jeopardy.

Why take the chance on a mis-diagnosis on the spot of bodily injury?  Which the state Supreme Court has defined so broadly that it can be nearly anything.

The Virginia Supreme Court held in 2015 that bodily injury under § 18.2-51.6. is very broadly interpreted.  The finding on “bodily injury” is on page 7:

The United States Code defines “bodily injury” as “a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary.” 18 U.S.C. § 1515(a)(5)(A-E).

Finding the foregoing authorities persuasive, and in light of our broad definition of bodily injury when applying Code § 18.2-51, today we hold that “bodily injury” within the scope of Code § 18.2-51.6 is any bodily injury whatsoever and includes an act of damage or harm or hurt that relates to the body; is an impairment of a function of a bodily member, organ, or mental faculty; or is an act of impairment of a physical condition. [Emphasis added.]

Merriam-Webster defines “hurt” and “harm”:

Hurt:
1. a: to inflict with physical pain
 b: to do substantial or material harm to

2. a: to cause emotional pain or anguish to
b: to be detrimental to

Harm:
1: physical or mental damage

You get the point.

Newport News Public Schools (NNPS) publishes a Rights and Responsibilities Handbook .  Starting on page 27 it offers Code of Conduct & Due Process Procedures. Listed behaviors starting on page 33 are annotated with a red telephone symbol when law enforcement must be notified.

That matrix itself requires interpretation of the term “physical injury” in deciding to report assault.  Assault is defined in the Handbook as “intending to cause physical injury to another person” and battery as “causing physical injury to another person.

I have no idea where they got those definitions.  They do not align with the most common definitions of those terms in Virginia jurisprudence.

Here are authoritative alternate definitions:

A simple assault (the most basic assault charge in Virginia) occurs when a person tries to commit a battery or attempts to place someone in fear of immediate injury by menacing them. Unlike a battery, assault doesn’t require any actual physical contact with another person.

A battery is the unauthorized offensive or harmful contact with another person.

Those alternate definitions are affirmed here.

You will note in the Handbook that “striking staff” and threatening, intimidating, or instigating violence, injury or harm to a staff member or members or another student, which happened in the case of the Newport News kid who later shot his teacher, requires calling the police.

That notification reportedly did not happen with consequences described above.

In a contradiction, “fighting,” defined in the Handbook as “the use of physical violence between students or another person where there is minor injury” does not require law enforcement notification, apparently leaving assault and battery on a teacher or other school employee as the only victims for which police notification is required.

In a couple of odd choices, gang related behavior and attempting to set a fire do not require such a notification.  Strangulation is not mentioned.

Newport News has decided to put SROs in every school as soon as possible.

Fairfax County Public Schools (FCPS).  From the FCPS Student Conduct Rights and Responsibilities guide for 2022-23:

Police Involvement

Under the Code of Virginia, principals must immediately report certain violations to the police.

These include incidents that may be a misdemeanor or felony: assault and battery that results in bodily injury, ….

Under these circumstances, the principal may contact the school resource officer (SRO).

In most situations, the SRO or other police officer will contact the parents before questioning a child. If there is immediate risk of danger, the SRO will act to alleviate the risk and may question the student without advance notice to parents. The principal will contact parents as soon as possible. [Emphasis added.]

There is that term “bodily injury” again.   Strangulation is not mentioned.

Loudoun County Public Schools (LCPS).  LCPS Policy 8260 Reporting of Student Conduct revised Feb 28, 2023.

As revised 6 weeks ago, the Loudoun County reporting policy is now stronger than the state law. 

Unlike state law, Loudoun now requires reporting to police assault and battery that results in bodily injury

B. Reports to Law Enforcement. Except as may otherwise be required by federal law, regulation, or jurisprudence, each principal

2. shall immediately report to the local law-enforcement agency any incident described in subsections A 1 through 7 (includes assault and battery that results in bodily injury). [Emphasis added.]

I hope they notified their principals of the change.

City of Richmond Public Schools (RPS). RPS has two different numbered policies on reporting to law enforcement.  One has been revised since the 2022 changes; the other has not.  Both are as weak as Virginia law at the time of their last revision.  Both are found here.

Buchanan County Public Schools (BCPS).  BCPS board policy parrots state law.

But the BCPS superintendent publishes a useful reporting matrix.  It is contained in his Handbook of Expectations and Consequences for Students.

The superintendent’s matrix designates a lot more incidents for police reporting than does his school board’s policy.  It also exceeds that of Newport News or any of the other school divisions described here.  But even in that matrix there are seeming contradictions.

The “Notify law enforcement” designation is on a long list of infractions, but missing on others that overlap.

  • Assault & battery causing or intending to cause physical injury – yes
  • Fighting with no injury – no
  • Bullying with no physical injury – yes
  • Striking staff – yes

To make a larger point about consequences within the school system, he adds:

Moreover, if a behavior is deemed a criminal offense by local authorities and such offense is not identified in this Code of Student Conduct, the consequence may be expulsion from the Buchanan County Public Schools.

I found that in none of the other school division policies I reviewed.  I am also not sure how a principal could comply.  Without calling local authorities.

Alexandria City Public Schools (ACPS).  Relations with Law Enforcement Authorities, Policy KNAJ.

This one has a twist.  It requires both medical knowledge and knowledge of the criminal code:

Except as may otherwise be required by federal law, regulation, or jurisprudence, the principal shall immediately report to local law enforcement officials all incidents listed below that may constitute a criminal offense: …

Among those listed:

Assault and battery which results in bodily injury

Virginia Beach Public Schools.  I added Virginia Beach to keep my friends and neighbors happy.  It is a “good news, but” situation.

Virginia Beach Public Schools policy 5-37.1 states simply:

Certain infractions or violations of the Code of Virginia shall be reported to the police. These infractions include the following:

14. Assault and battery

No conditions.  All divisions should do it that way.

But, in a cautionary note, it was last revised by the Superintendent on March 18, 2013.

Maybe he will just leave it be.

Second bottom line.  Enough?

I recommend that unions representing principals and teachers draft legislation directing principals to report assault and battery to law enforcement without requiring medical or legal assessments and put the onus of all of this back on law enforcement and EMS personnel where it belongs.


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10 responses to “Assault and Battery in Schools – Virginia Law and School Division Policies Make “Marks” of Principals”

  1. Eric the half a troll Avatar
    Eric the half a troll

    “Virginia law for decades required schools to report assault and battery to police.”

    Well “decades” is a stretch but that was the law starting in the mid-90s I believe (i.e., all assaults and batteries were required to be reported to law enforcement) until Dick Black and Republicans wrote the “no bodily harm” exemption into the law in 2003.

    1. No comment on the issue, just the politics?

      1. Eric the half a troll Avatar
        Eric the half a troll

        I generally support the “no bodily harm” exemption. Do you think the police need to be brought into every fisticuff in every school?

        1. James C. Sherlock Avatar
          James C. Sherlock

          I could agree with you, was not “bodily harm” in Virginia, defined by the Virginia Supreme Court in the case I cited, virtually anything that causes pain or leaves a mark. I think the court made the right decision since the General Assembly has punted on defining bodily harm and the federal definition they cited is out there.

          The entire point of the article is that the General Assembly has punted the decision on whether to call police (and thus EMS) or not over to school principals without protecting them from the legal consequences of the legal and medical decisions that they are demonstrably unqualified to make.

          If that is the way they are going to handle it, then the law should provide strong legal protections to principals for those decisions come what may. And they do not.

          1. Eric the half a troll Avatar
            Eric the half a troll

            Again the “punting” was done in 2003. Principals have been managing this issue for 20 years now with little apparent controversy.

          2. James C. Sherlock Avatar
            James C. Sherlock

            Little apparent controversy? You really didn’t read the article, did you.

          3. Eric the half a troll Avatar
            Eric the half a troll

            I did. For instance, I saw where you continue to claim:

            “The current law on reporting of assault and battery to police reflects a poorly conceived and poorly written attempt by Virginia Democrats in 2020 to break what they called the “school-to-prison pipeline.””

            … when you know that it was Republicans who inserted the “no bodily harm” language that you take such issue with into the law in 2003.

            But given the number of fights that no doubt occurred in Virginia schools over the 20 years since Dick Black wrote his now (thanks to your articles) infamous “no bodily harm” legislation I’d say there has actually been very little controversy on the implementation of the policy… controversy created in the minds of blog contributors notwithstanding…

  2. Eric the half a troll Avatar
    Eric the half a troll

    “Virginia law for decades required schools to report assault and battery to police.”

    Well “decades” is a stretch but that was the law starting in the mid-90s I believe (i.e., all assaults and batteries were required to be reported to law enforcement) until Dick Black and Republicans wrote the “no bodily harm” exemption into the law in 2003.

  3. M. Purdy Avatar

    I thought it was nice how John Reid went straight to the race issue on this story this AM. He’s all class…

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