PRESENT: Lemons, Goodwyn, Millette, Mims, McClanahan, and
Powell, JJ., and Carrico, S.J.

VIRGINIA COMMONWEALTH UNIVERSITY
                                           OPINION BY
v.   Record No. 110348              JUSTICE LEROY F. MILLETTE, JR.
                                          March 2, 2012
ZHUO CHENG SU

          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Margaret P. Spencer, Judge

     In this case, we must decide whether the circuit court

erred by reversing the Virginia Commonwealth University's (VCU)

decision denying Zhuo Cheng Su's application for in-state

tuition benefits.   We hold that it did.

                                I.

                                A.

     Su, a native and citizen of the People's Republic of

China, came to the United States in 2007 to attend high school

in St. Paul, Minnesota.   In June 2009, he was accepted by VCU

and, shortly thereafter, moved to Midlothian, Virginia, to live

with his uncle.   In the weeks following his relocation, Su got

a part-time job, obtained a Virginia driver's license, and

titled and registered his car in Virginia.

     Su matriculated at VCU in August 2009.    At the time, he

was classified as an out-of-state student for tuition purposes.

In May 2010, Su sought to change his classification to in-state

status.   To that end, he filed an "Application for Change of

Domicile for Virginia In-State Tuition Rates" form with VCU's

                                1
Residency Appeals Officer (Officer).    Su provided some, but not

all, of the information requested in the application.    The

Officer denied Su's application, and in a letter, explained

that Su was "ineligible to receive in-state tuition status"

because "[f]ederal law prohibits an F-1 visa holder to

establish Virginia domicile."

                                  B.

        Su appealed the Officer's decision to VCU's Residency

Appeals Committee (Committee), and an evidentiary hearing was

held.    Su began his testimony by clarifying his immigration

status; he stated that, although he did not submit the

supporting documentation with his application, he became a

permanent resident in March 2009 — roughly five months before

he matriculated at VCU.    The Committee then proceeded to ask Su

a series of questions to fill in gaps in his application.       It

first questioned him about when he applied to VCU and whether

he applied to other universities as well.    Su said that he

applied to VCU in November 2008 and that he also applied to

Cornell University, the University of Minnesota, the University

of Virginia, and "some small college that [he could not] quite

remember."    When the Committee asked Su why he applied to these

other universities, he answered that he was "hoping" that one

of them would give him a full scholarship and that, had one of



                                  2
them done so, he would have attended that university instead of

VCU.

       Next, the Committee questioned Su about his family members

and their living situations.   He responded that he and his

sister live with their uncle in Midlothian year round and that

their parents, who are also permanent residents, live with them

about "half of [the] year"; they spend "the rest of the year in

China," where they have a food business.   While his parents own

a home in Midlothian, Su said that "they rent it out 12 months

out of the year."

       The Committee also asked Su how he was paying for his

tuition.   He replied that, although he does receive "some cash"

from his uncle and "[a]bout $1,000 or $2,000" a year from his

parents, he pays for most of it himself or with financial aid.

Su explained that he works at two Chinese restaurants

throughout the year to earn money.

       Finally, the Committee questioned Su about where he spent

his winter and summer school breaks and whether he intended to

stay in Virginia indefinitely.   Su said that he spent his

winter break at his uncle's home in Midlothian and that he

spent half of his three-month summer break in China "for

visiting."   As for whether he intended to stay in Virginia

indefinitely, Su first replied, "So after I graduate, which [I]

mean after I graduate from VCU, [I will] probably still stay in

                                 3
this state"; but he later said, "Yes, I am going to stay in

Virginia."

     The Committee denied Su's appeal, finding that he "did not

present clear and convincing evidence to rebut the [statutory]

presumption that he is residing in the State primarily for

educational purposes."   It provided the following reasons for

its decision:   that Su "[c]ame to the U.S. for purposes of

getting an education"; that he "has not totally abandoned

China, returns on breaks"; that his "application was incomplete

and there were inconsistencies"; that he provided "no

documentation to clearly show that he is independent"; and that

his "parents still own a business in China."

                                C.

     Su appealed the Committee's decision to the circuit court,

which reversed.   The circuit court found that the decision was

"arbitrary, capricious and contrary to law" because VCU was

incorrect in asserting that Su "had no domicile or was

domiciled in 'no-state'" and that he was an F-1 visa holder,

rather than a permanent resident, when he matriculated.    The

circuit court further found that "by the overwhelming evidence

presented by documents and testimony in the record, [Su]

established by clear and convincing evidence that he was

domiciled in Virginia and had abandoned any previous domicile

for at least one year prior to the date of the entitlement."

                                4
The circuit court accordingly granted Su "leave to apply for

in-state tuition benefits."

     We awarded VCU this appeal.

                               II.

     Before addressing the merits, we think it necessary to

discuss the applicable standard of review.    This Court has

twice before reviewed a circuit court's judgment on a student's

appeal from an in-state tuition eligibility decision by an

institution of higher education.     George Mason University v.

Floyd, 275 Va. 32, 654 S.E.2d 556 (2008); Ravindranathan v.

Virginia Commonwealth University, 258 Va. 269, 519 S.E.2d 618

(1999).   In both cases, we used language in our opinions

indicating that we review such a judgment under the highly

deferential "plainly wrong" standard.     Floyd, 275 Va. at 39,

654 S.E.2d at 559 ("[W]e hold that the circuit court was

plainly wrong in finding that the decision made by GMU was

arbitrary, capricious or otherwise contrary to law." (emphasis

added)); Ravindranathan, 258 Va. at 275, 519 S.E.2d at 620 ("On

appeal, the sole issue that we may consider is whether the

circuit court was plainly wrong when it held that the Residency

Appeals Committee's decision was not arbitrary, capricious, or

otherwise contrary to the law." (emphasis added)).    We now

clarify that we apply the de novo standard of review.



                                5
     When reviewing an in-state tuition eligibility decision by

an institution of higher education, a circuit court's sole

"function [is] to determine whether the decision reached by the

institution could reasonably be said, on the basis of the

record, not to be arbitrary, capricious or otherwise contrary

to law."    Code § 23-7.4:3(A).   Whether an administrative

decision is "arbitrary, capricious or otherwise contrary to

law" presents a question not of fact but of law.     We therefore

review a circuit court's judgment on a student's appeal from an

in-state tuition eligibility decision by an institution of

higher education under the de novo — not the "plainly wrong" —

standard.    See Dykes v. Friends of the C.C.C. Rd., 283 Va. 306,

308, ___ S.E.2d ___, ___ (2012).

                                  III.

     We now turn to consider whether the circuit court erred by

reversing VCU's decision denying Su's application for in-state

tuition benefits.

                                   A.

     To be eligible for in-state tuition benefits at a public

institution of higher education, a student must "establish by

clear and convincing evidence that for a period of at least one

year immediately prior to the date of the alleged entitlement

[to those benefits], he was domiciled in Virginia and had

abandoned any previous domicile, if such existed."     Code § 23-

                                   6
7.4(B).   In determining a student's domiciliary intent, an

institution of higher education must consider the following

applicable factors:

      continuous residence for at least one year prior to
      the date of alleged entitlement . . . ; state to which
      income taxes are filed or paid; driver's license;
      motor vehicle registration; voter registration;
      employment; property ownership; sources of financial
      support; military records; a written offer and
      acceptance of employment following graduation; and any
      other social or economic relationships with the
      Commonwealth and other jurisdictions.

Id.

      A student will not, however, ordinarily gain

"[d]omiciliary status . . . by the performance of acts which

are auxiliary to fulfilling educational objectives or are

required or routinely performed by temporary residents of the

Commonwealth."   Id.   Indeed, the "[m]ere physical presence or

residence primarily for educational purposes shall not confer

domiciliary status."    Id.   Moreover, "[a] matriculating student

who has entered an institution and is classified as an out-of-

state student shall be required to rebut by clear and

convincing evidence the presumption that he is in the

Commonwealth for the purpose of attending school and not as a

bona fide domiciliary."    Id.

      A student who is aggrieved by an institution of higher

education's "final administrative decision" on his eligibility

for in-state tuition benefits has "the right to review in the

                                  7
circuit court for the jurisdiction in which the relevant

institution is located."    Code § 23-7.4:3(A).   "In any such

action, the institution shall forward the record to the court,

whose function shall be only to determine whether the decision

reached by the institution could reasonably be said, on the

basis of the record, not to be arbitrary, capricious or

otherwise contrary to law."    Id.

                                 B.

     After reviewing the administrative record, we conclude

that VCU's decision denying Su's application for in-state

tuition benefits cannot "reasonably be said . . . to be

arbitrary, capricious or otherwise contrary to law."    Id.      A

decision is "arbitrary and capricious," we have said, when it

is " 'willful and unreasonable' " and taken " 'without

consideration or in disregard of facts or law or without

determining principle.' "     School Bd. of the City of Norfolk v.

Wescott, 254 Va. 218, 224, 492 S.E.2d 146, 150 (1997) (quoting

Black's Law Dictionary 105 (6th ed. 1990)).    Here, the record

reflects that VCU gave careful consideration to the facts of

Su's case and that it applied the proper principles.

     As a student who was classified as out of state when he

matriculated at VCU, Su bore a heavy burden to establish his

eligibility for in-state tuition benefits:    He had to "rebut by

clear and convincing evidence the presumption that he is in the

                                  8
Commonwealth for the purpose of attending school and not as a

bona fide domiciliary."   Code § 23-7.4(B).   There is more than

sufficient evidence in the record to support VCU's conclusion

that Su did not meet this burden.    Significantly, he applied to

several universities outside of Virginia and moved to Virginia

only after being accepted by VCU.    He also gave inconsistent

answers when asked whether he intended to stay in Virginia

indefinitely.   Additionally, he returned to his native country

of China for more than a month during the year in which he was

supposedly establishing his Virginia domicile.

     Further, many of the facts Su relies on "to support his

purported Virginia domicile could likewise be deemed auxiliary

to fulfilling his educational objectives."    Floyd, 275 Va. at

39-40, 654 S.E.2d at 559; see also Code § 23-7.4(B).    For

example, titling and registering a car, obtaining a driver's

license, and securing part-time employment are all actions that

"are required or routinely performed by temporary residents of

this Commonwealth."   Code § 23-7.4(B); see also Ravindranathan,

258 Va. at 274-75, 519 S.E.2d at 620-21.

                                C.

     In reversing VCU's decision denying Su's application for

in-state tuition benefits, the circuit court erred.    First, it

reviewed the wrong decision.   Under Code § 23-7.4:3(A), a

circuit court is to review an institution of higher education's

                                9
"final administrative decision," not its "initial

determination."   Instead of reviewing the Committee's "final

administrative decision," which was based on several valid

grounds, the circuit court here reviewed the Officer's "initial

determination," which was based on one erroneous ground:   that

Su held an F-1 visa when he matriculated at VCU.    Since the

Committee did not rely on the Officer's decision in denying

Su's application, that decision should not have been a factor

in the circuit court's review.

     Second, the circuit court did not limit its review to the

administrative record.   According to Code § 23-7.4:3(A), a

circuit court's review of an institution of higher education's

decision on a student's eligibility for in-state tuition

benefits is to be based solely on the record forwarded by the

institution.   Here, the circuit court went beyond the record it

was forwarded in reviewing VCU's decision denying Su's

application for in-state tuition benefits.   For instance, the

circuit court states in its order that

     [Su] testified that he would not have gone to an out-
     of-state school if he had been accepted so that he
     could be close and help his newly immigrated family,
     but applied to out-of-state schools to see if his
     academic record was strong enough to get into
     competitive schools. He states that it was common
     procedure for high school students to apply to in and
     out of state colleges, but his parents wanted him to
     attend school in Virginia.



                                 10
These statements, however, appear nowhere in the record that

was forwarded to the circuit court and therefore should have

played no part in its review.

     Third, the circuit court did not adhere to the applicable

standard of review.    As noted earlier, when reviewing an in-

state tuition eligibility decision by an institution of higher

education under Code § 23-7.4:3(A), a circuit court's only

"function [is] to determine whether the decision reached by the

institution could reasonably be said, on the basis of the

record, not to be arbitrary, capricious or otherwise contrary

to law."   The circuit court, however, did not so limit its

review in this case.   Rather, it reweighed the evidence and

found that Su "established by clear and convincing evidence

that he was domiciled in Virginia and had abandoned any

previous domicile for at least one year prior to the date of

the entitlement."   It was not for the circuit court to

substitute its judgment for that of VCU.

                                IV.

     Because it cannot be reasonably said on the administrative

record that VCU's decision denying Su's application for in-

state tuition benefits was arbitrary, capricious, or otherwise

contrary to law, we reverse the circuit court's judgment and

enter final judgment for VCU.

                                      Reversed and final judgment.

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