Tradition that fed Virginia’s school-to-prison pipeline finds rebirth with new GOP majority

RICHMOND, Va. (CN) — In May 2021, a high school student was sexually assaulted in the girl's bathroom of a Loudoun County school. The teen's assailant would later be convicted but not before drawing charges for another assault in October. 

That the administration had quietly transferred the student after the first incident to a different school in the same county where the crime would apparently happen again managed to stir outrage among Virginia parents in the lead-up to closely watched state elections. Data showed hard shifts toward the right in Virginia suburbs like Loudoun, and those shifts helped businessman Glenn Youngkin and his GOP allies in the House, who championed school safety issues, win office last week. 

Years earlier, in Lynchburg about 160 miles south of Loudoun, a sixth grader was charged with disorderly conduct after a school resource officer witnessed him kick over a trash can. He would be one of many. The Center for Public Integrity reported on the trend in 2015, saying Virginia reported students for criminal conduct as much as three times the national average based on a study of U.S. Department of Education data. Among students of color and those with special needs, those numbers were worse.

Democrats seized on the figures last year to pass HB 257, eliminating the requirement for school principals to inform law enforcement about misdemeanor offenses. Once the state’s new GOP leadership takes control in January, however, it is less certain whether the bipartisan mood that carried the legislation will hold. 

“Violating protective orders, sexual battery, were suddenly at the discretion of schools,” Republican House Leader Delegate Todd Gilbert said of HB 257 in a press conference last week, laying out his party’s legislative plans as the incoming majority. 

The bill's language changed the state's crime-reporting law from requiring schools to report to local law enforcement any act that may constitute a “criminal” offense to a “felony” offense.

“Schools don’t have any business deciding what is or isn’t a felony act, that is something for the police to do when our children are harmed,” Gilbert added. 

Those who got the bill passed argue differently. 

“It’s all about empowering school officials to exercise appropriate discretion about when it makes sense to involve law enforcement in a disciplinary manner,” Charlottesville-area Delegate Sally Hudson said in a phone interview Monday. 

Hudson said the law was designed to help in cases such as two brothers getting in a fight in the hallways. 

“If one shoved the other, under the old law the principal would have to call the cops,” she said. “Under the new law they could only call their parents instead.”

Senator Jennifer McClellan, a Democrat, sponsored her chamber’s version of the bill. 

She said numbers from the 2015 CPI report showed the state as a whole was bad, but some counties were jaw-dropping. Most states refer about six out of 1,000 students to law enforcement. Virginia was averaging about 16 per 1,000, but Chesterfield County, just south of Richmond, was averaging 39 times the national rate at 228 per 1,000. 

McClellan did not wait to begin advocating for changes but said she was stonewalled by the GOP leadership in control of the House until 2019. 

“[The House committee] was dominated by hardcore prosecutors, tough-on-crime types, who did not really think through ‘does it make sense to criminalize childhood behavior’ and instead treated children like little adults,” she said in a phone interview Tuesday.  

Among those also involved in early reform efforts was Delegate Dave LaRock. A Republican, his bill was approved 20–2 by the House Education Committee but was never addressed by the House Committee on Courts and Justice, killing it for the year. 

LaRock did not support the 2020 effort, however, and has since joined his GOP colleagues in hoping to make changes to the law.

“I’m in favor of setting those boundaries so that kids aren’t brought into a legal system over trivial interactions,” he said in a phone interview Tuesday. “But with assault, there must be reporting of those violations.”

Specifics about the Loudoun incident and how the law was or was not used are still being determined. 

According to local reports, the assailant’s first incident led to a transfer to a different school, though both acts appear to have been reported to local law enforcement. In October, a juvenile judge sustained the charges for the May incident. 

School administration, who faced the brunt of public outcry at board meetings all summer, blamed the county’s rapid growth and changes in federal law for the missteps that allowed the student to remain in the school system. 

“Throughout these recent events, Loudoun County Public Schools complied with our obligations under Title IX,” Scott Ziegler, the superintendent for Loudoun County Public Schools, said in an October statement, pointing to the federal regulation that governs reporting sexual assault to police when it occurs on school grounds. “However, we have found the process outlined under Title IX by the U.S. Department of Education to be insufficient in addressing issues at the K-12 level.”

Changes to the federal law are out of the hands of Virginia legislators, so in the meantime lawmakers are expected to make changes to the current law when they start their 2022 session.

“We need to make sure our children are safe at school, and [HB 257] takes away some of that safety because it does not require sexual assault or domestic violence or assault be reported, putting our kids in greater danger,” Republican Senator Ryan McDougle said in a phone call late Tuesday evening. 

Still, a 2021 update to the CPI report using data from the 2017-18 school year showed Virginia remained at the top of the national list for criminal referrals. The state has seen its ability to test the success of the 2020 bill further complicated meanwhile by the disruption schools have endured and still face due to the coronavirus pandemic. 

As for the GOP’s arguments, both Hudson and McClellan say the law currently requires reporting sexual assault and what happened in Loudoun should not lead to the renewed criminalization of student behavior. 

“Recognizing an individual case could have been mishandled and judgment exercised poorly, that doesn’t mean every student in every scuffle should engage in law enforcement,” said Hudson. “That’s the unfortunate reality about the law.”

McClellan said Gilbert’s concerns about deputizing school officials to decide what is or is not a felony were similarly misguided. 

“The General Assembly, in the code of Virginia, decides what's a felony, it's clear under the law,” she said, suggesting principals have access to lawyers if there’s any confusion as to what they should report. 

“The GOP is stoking fear for political gain,” she added. 

The window to file new legislation opens Monday. Youngkin and his new GOP majority House will begin to wield their new authority in January 2022.

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