Virginia Commonwealth University v. Su ( 2012 )

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
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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
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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
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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."
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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.
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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-
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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
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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
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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
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"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.
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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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