We Defend College and University Students in Virginia Colleges and Univerisites

Are you a student or the parent of student at a Virginia school, college, or university facing a school-related issue or concern?  Attorney Joseph D. Lento and the Lento Law Firm can help. The world of academia is unique, and the Lento Law Firm has unparalleled national experience bringing its problem-solving approach and fighting spirit to address school-related injustice.  Attorney Lento and his Firm have helped countless students and families in Virginia and across the United States at the school level and in court.  Please click on the following links for more information.  Please also see our expanded list of school practice areas.

Joseph D. Lento has helped countless students and others in academia in Virginia protect their academic and professional future, and he can do the same for you. Contact him today at 888-535-3686.

Higher Education in Virginia

The State of Virginia values higher education. One source counts 129 colleges and universities in Virginia. Those schools include 40 public colleges and universities, 44 private nonprofit colleges and universities, and 45 more for-profit private schools. Virginia is home to the nation's second-oldest public university, the College of William & Mary established in 1693 when Virginia was still a British colony. Virginia is also home to the nation's oldest university established by state charter, the University of Virginia, founded in 1819 at the urging of Thomas Jefferson. Jefferson also designed the University of Virginia's original campus.

Virginia educates hundreds of thousands of college and university students. Among public colleges and universities in Virginia, Northern Virginia Community College in Annandale tops the list with over 50,000 students. George Mason University in Fairfax is next, enrolling just over 37,000 students. Virginia Tech, Virginia Commonwealth, and the University of Virginia's main campus in Charlottesville are next in enrollment, each with about 25,000 or more students.

Discipline Cases in Virginia

Colleges and universities in Virginia discipline students for various forms of misconduct, just as colleges and universities do in other states. And sometimes, the discipline is unwarranted or excessive. A recent media report highlights one such case in which a medical student at the University of Virginia questioned a speaker's definition of microaggressions during the question-and-answer part of a presentation. The ensuing open forum discussion led to a professor's complaint against the student. The school then demanded that the student submit to a psychological test. The school also required the student to attend a disciplinary hearing at which the school suspended the student. According to the report, a federal court later allowed the student's First Amendment claim to proceed against the university.

Another media report indicates recent disciplinary action against William & Mary College students for allegedly violating pandemic protocols. The disciplined students allegedly attended a party in greater numbers than the school permitted, without social distancing. The college also alleged the possession of alcohol by underage minor students. These and other cases confirm that Virginia colleges and universities may allege various forms of student misconduct, including not only academic misconduct but also behavioral misconduct and a lack of professionalism.

Below are Virginia laws, regulations, codes, policies, and procedures that may help you with your Virginia school discipline matter. National college and university defense attorney Joseph D. Lento and the Lento Law Firm are available for your defense of college or university misconduct charges in Virginia. See the long list here of Virginia colleges and universities where attorney Lento and the Lento Law Firm are available to defend students of misconduct charges. Trust an attorney who combines national experience with premier reputation and solid knowledge of Virginia laws.

Virginia's State Council of Higher Education

Virginia's governor and General Assembly created the State Council of Higher Education for Virginia in 1956 “to advocate and promote the development and operation of an educationally and economically sound, vigorous, progressive, and coordinated system of higher education in the Commonwealth of Virginia….” The State Council does accept student complaints that the student's college or university violated a State Council regulation. Virginia Administrative Code §40-31-100 requires the State Council to investigate all student complaints against Virginia higher-education institutions. Significantly, though, the student must first exhaust all available procedures within the student's own institution before complaining to the State Council. Don't attempt to circumvent the school's process, even if that process doesn't seem fair. The State Council's website for student complaints explains:

The vast majority of complaints – a concern that a policy or procedure of the institution has been incorrectly or unfairly applied in one's particular case – should be resolved with the school itself. Postsecondary institutions participating in federal student financial aid programs are required to maintain formal grievance procedures. Federal regulation requires the Commonwealth to designate an agency to respond to grievances from students attending institutions located in Virginia regardless of delivery format (on-line, face-to-face, hybrid); credential awarded (degree, certificate, diploma); or institutional type (public, private, for-profit, nonprofit). Virginia Code also requires private schools certified to operate by SCHEV to have formal complaint procedures for students. The school's student handbook usually describes the steps students must take to begin a grievance process. SCHEV will not investigate a complaint unless the student has exhausted all available grievance procedures outlined by the institution.

Virginia colleges and universities will have internal student complaint procedures available. To receive State Council certification to offer higher education in Virginia, State Council regulations, summarized here, require a college or university to offer students an internal grievance procedure. A Virginia college or university must also not retaliate against students who use that grievance procedure and must tell students about the State Council's own complaint process, available once the student exhausts the internal grievance procedure. Be sure to retain national college and university discipline defense attorney Joseph D. Lento and the Lento Law Firm to timely exhaust your school's internal procedures.

Virginia Laws on Higher Education

Health and Safety. Virginia law generally authorizes Virginia colleges and universities to set policies governing student conduct, the violation of which may result in student discipline. For instance, Virginia's state code on higher education authorizes Virginia colleges and universities to set policies to ensure campus health and safety. Health policies may address things like immunizations, virus protocols, and student mental health. Under Virginia Code §23.1-805, campus safety policies at public institutions must include violence prevention measures. Expect to see elaborate health and safety policies at your Virginia college or university, especially policies prohibiting property destruction and interpersonal violence.

Prohibiting Sexual Misconduct. Virginia law also specifically requires that Virginia colleges and universities prohibit and deter sexual misconduct. Under Virginia Code §23.1-806, both public and private colleges and universities must mandate reporting of sexual violence while providing procedural protections to alleged victims of sexual violence. This mandate both confirms and expands similar mandates under federal Title IX regulations. Students facing sexual-misconduct charges in Virginia should know and respect both the state and federal mandates the school faces when resolving those charges. Interestingly, Virginia Code §23.1-808 requires Virginia colleges and universities to grant immunity to students who, in the course of a good faith report of sexual violence, disclose their own consumption of drugs or alcohol. That provision extends beyond the norm the usual protections for reporters of suspected sexual misconduct.

Mandated Transcript Notations. Virginia confirms its commitment to deterring sexual misconduct on campus by requiring Virginia college and university registrars to note sexual misconduct findings on the accused student's official transcript. Virginia Code §23.1-900 specifically instructs registrars at both private and public institutions to “include a prominent notation on the academic transcript of each student who has been suspended for, has been permanently dismissed for, or withdraws from the institution while under investigation for an offense involving sexual violence….” This statutory provision raises the stakes for students accused of sexual misconduct. The mandated prominent transcript notation makes even less attractive the option of leaving school instead of facing the charges.

Authorizing Public University Campus Police. Students at a public or private Virginia college or university may face law enforcement both by campus police departments and by local municipal police departments. Virginia Code §23.1-809 authorizes the governing board of any public college or university in Virginia to establish campus police. Virginia Code §23.1-810 also authorizes private colleges and universities in Virginia to form police departments, if the privately employed officers receive the same training as public police officers. Virginia Code §23.1-816 permits a Virginia college or university to extend the authority of its police officers beyond campus boundaries to include any remote property that the institution owns or leases, and the conduct of persons using that property.

Public Colleges and Universities. Chapter 13 of Virginia's code of higher education authorizes the state's public institutions of higher education, controlled by governing boards. Virginia Code §23.1-1301 specifically authorizes those governing boards to set the institution's policies and procedures, which would include student conduct codes. Virginia's authorized public institutions include Christopher Newport University, George Mason University, James Madison University, Longwood University, University of Mary Washington, Norfolk State University, Old Dominion University, Radford University, the University of Virginia, Virginia Commonwealth University, Virginia Military Institute, Virginia Polytechnic Institute and State University, Virginia State University, the College of William & Mary in Virginia, and Richard Bland College. Chapter 29 of Virginia's code of higher education separately authorizes the state's community college systems.

Title IX Interpretations in Virginia

Virginia colleges and universities, like schools in other states, must comply with Title IX law and regulations prohibiting sex discrimination. Colleges and universities that fail to comply with Title IX risk their substantial federal funding. Expect your Virginia college or university to take this obligation seriously. Your Virginia college or university, whether public or private, will have adopted policies and procedures meeting Title IX requirements. Title IX policies are just one form of student conduct code. Students also face academic conduct codes, professionalism codes, sexual conduct codes addressing non-Title IX behaviors, and other behavioral codes addressing issues like alcohol or drug use and abuse, vandalism, and other non-sexual forms of interpersonal violence or property destruction.

New Regulations. Under the former Trump Administration, the Department of Education promulgated new Title IX regulations effective in 2020. The new regulations responded to lawsuits and public criticism over unfair, overbroad, and overly aggressive enforcement of sexual misconduct policies on campuses. Reports indicate that hundreds of students sued their universities, claiming unfair discipline under vague procedures that rushed charges to judgment. The new Title IX regulations meant to level the proverbial playing field for the accused while preserving protections for the accuser. New protections for the accused begin with narrower definitions of sexual harassment. Schools must also train investigators and decision-makers in fair procedures. Witnesses must now attend hearings while submitting to cross-examination, or the decision-maker must not consider their testimony. The accused student may now retain a lawyer to conduct that cross-examination. Schools can no longer use a single official to investigate, prosecute, and decide the charges. The school must now divide those roles among different officials having on conflict of interest. Schools may also raise the burden of proof on charges from a preponderance of the evidence to clear and convincing evidence, although few schools have done so.

Example Virginia Title IX Policy. The University of Virginia provides a good example of how Virginia's colleges and universities have updated their policies and procedures to meet the new regulations. The University of Virginia updated its Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence effective the August 14, 2020, date of the new Title IX regulations. The University of Virginia's updated policy does everything that the new regulations require, including:

  • limit harassment to severe, pervasive, and objectively offensive conduct;
  • provide the accused student with written notice of the charges;
  • provide the accused student with the investigation report;
  • permit the accused student to comment on and supplement the report;
  • separate investigator and decision-maker roles without conflict of interest;
  • require witnesses to attend the accused student's formal hearing;
  • permit cross-examination of in-person witnesses at the hearing; and
  • allow the accused student's attorney to conduct cross-examination.

A Challenging Forum. Virginia remains a relatively challenging forum in which to dispute student discipline. For example, the University of Virginia, like most other colleges and universities in Virginia and nationally, does not raise the school's burden of proof on the Title IX sexual misconduct charges. That burden of proof remains a preponderance of the evidence rather than clear and convincing evidence, as the new Title IX regulations permit. The University of Virginia's sexual misconduct policy also expands the forms of sanctionable misconduct beyond Title IX's strict definitions. For instance, the University of Virginia, like many other colleges and universities, also prohibits sexual exploitation, defined to include things like voyeurism, prostituting, and sexual exposure. And when eighteen states sued to block the new Trump Administration regulations taking effect in August 2020, Virginia was among those states. One can reasonably expect Virginia and many of its colleges and universities to reject recent protections for the accused, if the current Biden administration removes some of those protections, as many expect the administration to do.

Federal Case Law in Virginia. Virginia has seen a recent federal decision protecting the accused student from the university's overreach of its sexual misconduct policies. In that case, the University of Virginia attempted to hold a hearing to withhold the student's degree after the student had completed course requirements and effectively graduated. The university was acting on a complaint by a woman who had no university connection that the student had forced sex on the woman off-campus during the student's second year in the degree program. The federal decision, summarized in an Inside Higher Ed article, effectively held that the university lacked the authority to hold the student accountable for off-campus conduct unconnected with any university program. The university might have applied other parts of its student conduct code. But by relying on its Title IX policy, the university had overreached its authority.

Due Process in Virginia

The University of Virginia case just cited shows that federal review of public college and university action is possible in Virginia, just as in other states. That review typically occurs under the Fourteenth Amendment's due process clause, as another case involving a University of Virginia student accused of sexual misconduct shows. Indeed, the media report of that case refers to four other similar cases pending against other Virginia colleges and universities, including Virginia Commonwealth, James Madison, the University of Richmond, and Washington & Lee. The due process clause requires public college and university procedures to be fundamentally fair anytime that the institution attempts to deprive a student of a liberty or property interest. Students in Virginia are successfully challenging their school discipline in federal court under the due process clause.

Showing a Property Interest. To prevail in such a federal lawsuit, though, the student must do more than show pursuit of a degree. Virginia is within the jurisdiction of the United States Court of Appeals for the Fourth Circuit. Federal circuit courts disagree on the approach to take when determining whether a student has a property interest in a college or university degree. In Davis v. George Mason University, 395 F.Supp. 2d 331 (E.D. Va. 2005), aff'd, 193 F. App'x 248 (4th Cir. 2006), the Fourth Circuit followed a state-specific approach to that question. A Virginia student must, in other words, show that the student has a property interest under Virginia contract or property law in the degree, before the federal courts will recognize that interest as worthy of due process protection. That showing generally depends on pointing out specific language in the school's policies and procedures that expressly or impliedly promise, as a matter of Virginia contract law, certain treatment with respect to the student's pursuit of the degree. Trust national academic attorney Joseph D. Lento to make that special showing. He has the knowledge, skill, and experience in student discipline cases to do so.

Virginia Torts Claims

Virginia tort law can provide students accused of misconduct with other rights, claims, and protections. A tort claim may look like a last resort, after the college or university has unfairly dismissed the student, besmirching the student's reputation. Claimants typically pursue tort claims after the loss or injury, often years later. But a prompt demand that the accuser and school officials not commit torts against the student, and to retract defamatory statements, can in some cases positively influence the school's actions and even the charges' outcome. Tort rights can be important to a matter's outcome. And Virginia law supports the tort claims that can change the accused student's outcome.

For example, Virginia tort law recognizes claims for both slander and libel. Slander is the oral form of the tort of defamation, while libel is the written form of the same defamation tort. Oral or written publication of a false and reputation-lowering allegation of sexual or other misconduct can constitute defamation, for which the person making the statement must pay. One such well-known Virginia defamation case arose in 2016 when a journalist and national magazine published false allegations that a University of Virginia dean had mishandled sexual misconduct charges. That case, reported widely, involved allegations of millions of dollars in damages. Students falsely accused of misconduct rightly demand that accusers and school officials keep allegations confidential within appropriate proceedings. Virginia civil laws on the torts of invasion of privacy and intentional infliction of emotional distress may likewise provide an accused student with protections.

Virginia Limitations Periods. State laws impose specific periods within which students must pursue their rights. The student who delays beyond the statutory period will lose the right to bring the claim in court. Virginia Code §8.01-243(A) gives a Virginia student just two years within which to bring a claim for personal injury. The same statute imposes a two-year period within which to bring a defamation claim, whether in the oral slander or written libel form. Virginia Code §8.01-246(2) grants a student a full five years within which to bring a breach of contract claim if the student bases the claim on a written contract. Otherwise, Virginia Code §8.01-246(2) grants a student just three years within which to bring a claim based on breach of an oral contract.

Retain the Best Available Lawyer Representation

Facing a college or university misconduct charge in Virginia or other school-related issue or concern is a very serious matter. College or university discipline and other issues threaten not only the student's degree but also the student's reputation, career, and future. With so much at stake, the accused student or student subject to adverse consequences should not be looking to retain just any lawyer, even a local lawyer with experience in other fields. Instead, retain a premier national academic student defense lawyer. Promptly retain attorney Joseph D. Lento and the Lento Law Firm for your representation. Entrust your student rights in Virginia to the Lento Law Firm's expert representation. Hire the best available lawyer representation. Call 888-535-3686 to schedule a consultation, or use the online service.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact the Lento Law Firm today, and let us help secure your academic career.

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