                              COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judge Humphreys and Senior Judge Willis
Argued at Alexandria, Virginia


LOUDOUN COUNTY SCHOOL BOARD
                                                                     OPINION BY
v.     Record No. 1760-04-4                                   JUDGE JERE M. H. WILLIS, JR.
                                                                    APRIL 26, 2005
COMMONWEALTH OF VIRGINIA
 BOARD OF EDUCATION,
 COMMONWEALTH OF VIRGINIA
 DEPARTMENT OF EDUCATION AND
 KRISTIN HOPPER, BY HER PARENTS
 RICHARD E. HOPPER AND LINDA K. HOPPER


                    FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                Burke F. McCahill, Judge

               Kathleen S. Mehfoud (Reed Smith, LLP, on briefs), for appellant.

               James D. Wright, Associate University Counsel (Jerry W. Kilgore,
               Attorney General; David E. Johnson, Deputy Attorney General, on
               brief), for appellees Commonwealth of Virginia, Board of
               Education and Commonwealth of Virginia, Department of
               Education.

               (Richard E. Hopper, pro se, on brief), for appellee Kristin Hopper,
               By Her Parents Richard E. Hopper and Linda K. Hopper. Appellee
               submitting on brief.


       Pursuant to the Virginia Administrative Process Act (VAPA), Code § 2.2-4000 et seq., the

Loudoun County School Board (the School Board) appealed to the trial court an administrative

decision of the Virginia Department of Education (VDOE). On appeal, the School Board contends

that the trial court erred (1) in holding that a decision by the VDOE pursuant to 8 VAC 20-80-78 is

not reviewable on appeal through VAPA, (2) in holding that it lacked jurisdiction under VAPA to

entertain an appeal of the administrative decision, (3) in holding that Code § 22.1-214(D) applies to

decisions pursuant to 8 VAC 20-80-78, and (4) and in “failing to address the School Board’s claim
that it had been denied procedural and substantive due process . . . .” We affirm the judgment of the

trial court.

                                          BACKGROUND

          The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.,

provides federal funds to assist state and local agencies in educating disabled children. The

IDEA conditions the receipt of such funds upon a state’s compliance with certain goals and

procedures. The Virginia General Assembly has enacted statutes to ensure compliance with the

IDEA requirements. See Code §§ 22.1-213 to 22.1-221. The Virginia Board of Education

(VBOE) has developed regulations for implementing the statutory scheme. See 8 VAC 20-80-10

et seq.

          Code § 22.1-214(A) requires the VBOE to prepare and supervise the implementation of a

special education program by each school division. The federal statutory and regulatory

framework requires the development of a two-tier system to resolve disputes concerning a school

board’s compliance with the IDEA and Virginia’s corresponding statutes and regulations. The

two-tiered system provides a procedure affording due process and a complaint resolution

procedure (CRP). See 34 CFR §§ 300.500 – 300.517 and 300.660 – 300.662.

          Code § 22.1-214(B) requires the VBOE to adopt procedures affording due process in the

resolution of disputes concerning the program. Pursuant to this section, the VBOE adopted

8 VAC 20-80-76, affording due process through adversarial proceedings upon notice before

impartial and disinterested arbiters. This case involves neither Code § 22.1-214(B) nor 8 VAC

20-80-76.

          Code § 22.1-214(C) authorizes the VBOE to “provide for final decisions to be made by a

hearing officer.” Pursuant to this statute, the VBOE adopted 8 VAC 20-80-78, providing an




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internal CRP before officers designated by VDOE. Proceedings under this regulation are

informal and summary and do not afford due process.

       In September 2003, pursuant to 8 VAC 20-80-78, Richard and Linda Hopper filed a

complaint with the VDOE alleging that the School Board had failed to provide properly for their

daughter, a student in a Loudoun County public school. Following its investigation, the VDOE

determined that the School Board had failed in some respects to comply with the special education

program. It issued a Corrective Action Plan prescribing what was required of the School Board.

The School Board appealed the unfavorable aspects of the decision. VDOE reviewed the case and

largely affirmed the earlier decision. Asserting that this was an agency decision, the School Board

appealed to the circuit court under VAPA.

       Concluding that VAPA did not afford it jurisdiction over the case, the trial court dismissed

the School Board’s appeal. It held that Code § 22.1-214(D) provides for judicial review of a

decision under 8 VAC 20-80-78, thus affording due process, and that the VAPA does not apply.

                                            ANALYSIS

       The School Board argues that the VDOE’s CRP decision is an agency decision

appealable to the circuit court under the VAPA.

                        The stated purpose of the VAPA is “to supplement present
                and future basic laws conferring authority on agencies either to
                make regulations or decide cases as well as to standardize court
                review thereof save as laws hereafter enacted may otherwise
                expressly provide.” Code § 9-6.14:3.1 The VAPA “does not
                supersede or repeal additional procedural requirements in such
                basic laws.” Id. Also, the VAPA expressly exempts certain
                agencies and agency actions from its provisions. Code
                § 9-6.14:4.1.2 Thus, the VAPA is intended to be a default or
                catch-all source of administrative due process, applicable
                whenever the basic law fails to provide process. See State Bd. of
                Health v. Virginia Hosp. Ass’n, 1 Va. App. 5, 332 S.E.2d 793

       1
           Now Code § 2.2-4000(B). See Acts 2001, c. 844.
       2
           Now Code § 2.2-4006. See Acts 2001, c. 844.

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               (1985). In summary, the VAPA governs an agency’s actions
               except where that agency’s basic law provides its own due process
               or where the VAPA expressly exempts a particular agency or its
               actions.

School Board v. Nicely, 12 Va. App. 1051, 1058-59, 408 S.E.2d 545, 549 (1991).

       Code § 22.1-214(D) provides:

                       Any party aggrieved by the findings and decision made
               pursuant to the procedures prescribed pursuant to subsections B
               and C of this section may bring a civil action in the circuit court for
               the jurisdiction in which the school division is located. In any such
               action the court shall receive the records of the administrative
               proceedings, shall hear additional evidence at the request of a
               party, and basing its decision on the preponderance of the
               evidence, shall grant such relief as the court determines
               appropriate.

As 8 VAC 20-80-78 prescribes the procedure authorized by Code § 22.1-214(C), a decision

under the regulation is a decision under the statute. Therefore, a decision under 8 VAC 20-80-78

is subject to retrial de novo under Code § 22.1-214(D). This constitutes part of the basic law of

the agency, and thus excludes application of the VAPA. This provision for retrial de novo in the

circuit court plainly affords due process.

       The Supreme Court has held that the “[r]eview of an administrative decision by officers

appointed under authority of the Board of Education concerning a special education program for

a handicapped child is not subject to the Administrative Process Act (APA), but to the provisions

of § 22.1-214(D).” School Bd. of Campbell County v. Beasley, 238 Va. 44, 50, 380 S.E.2d 884,

888 (1989). Although Beasley involved circuit court review of a decision under an 8 VAC

20-80-76 due process proceeding, an administrative decision under an 8 VAC 20-80-78 CRP

proceeding, through Code § 22.1-214(C), is also subject to retrial de novo in the circuit court

under the provisions of Code § 22.1-214(D).

       Accordingly, the trial court correctly concluded that it lacked jurisdiction under the

VAPA to consider the School Board’s appeal. It did not err in dismissing that proceeding. We


                                                -4-
note that a proceeding under Code § 22.1-214(D) is entirely different, both in foundation and

structure, from a VAPA appeal. The former is a trial de novo on the merits, whereas the latter is

simply an appellate review of an agency record and decision. See Beasley, 238 Va. at 50, 380

S.E.2d at 888.

       The judgment of the trial court is affirmed.

                                                                                        Affirmed.




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