Code of Virginia

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Code of Virginia
Title 23.1. Institutions of Higher Education; Other Educational and Cultural Institutions
Chapter 4. General Provisions
7/30/2021

Chapter 4. General Provisions.

§ 23.1-400. Student organizations; rights and recognition.

A. To the extent allowed by state and federal law, a religious or political student organization may determine that ordering the organization's internal affairs, selecting the organization's leaders and members, defining the organization's doctrines, and resolving the organization's disputes are in furtherance of the organization's religious or political mission and that only persons committed to that mission should conduct such activities.

B. No public institution of higher education that has granted recognition of and access to any student organization or group shall discriminate against any such student organization or group that exercises its rights pursuant to subsection A.

2013, cc. 696, 701, § 23-9.2:12; 2016, c. 588.

§ 23.1-401. Restrictions on student speech; limitations.

No public institution of higher education shall impose restrictions on the time, place, and manner of student speech that (i) occurs in the outdoor areas of the institution's campus and (ii) is protected by the First Amendment to the United States Constitution unless the restrictions (a) are reasonable, (b) are justified without reference to the content of the regulated speech, (c) are narrowly tailored to serve a significant governmental interest, and (d) leave open ample alternative channels for communication of the information.

2014, c. 559, § 23-9.2:13; 2016, c. 588.

§ 23.1-401.1. Constitutionally protected speech; policies, materials, and reports; report.

A. Except as otherwise permitted by the First Amendment to the United States Constitution, no public institution of higher education shall abridge the constitutional freedom of any individual, including enrolled students, faculty and other employees, and invited guests, to speak on campus.

B. Each public institution of higher education shall establish and include in its student handbook, on its website, and in its student orientation programs policies regarding speech that is constitutionally protected under the First Amendment to the United States Constitution and the process to report incidents of disruption of such constitutionally protected speech.

C. Each public institution of higher education shall develop materials on the policies established pursuant to subsection B and notify any employee who is responsible for the discipline or education of enrolled students of such materials.

D. Each public institution of higher education shall develop, post on its website in a searchable, publicly accessible, and conspicuous manner, and submit to the Governor and the Chairmen of the House Committee on Education and the Senate Committee on Education and Health no later than December 1 of each year a report on the institution's compliance with the provisions of this section that includes:

1. A copy of the institution's policies as described in subsection B and materials on such policies as described in subsection C;

2. Certification that the institution has complied with subsection C; and

3. A copy of any complaint filed in a court of law since December 1 of the preceding year to initiate a lawsuit against the institution or an employee of the institution in his official capacity for an alleged violation of the First Amendment to the United States Constitution.

E. Each public institution of higher education shall submit to the Governor and the Chairmen of the House Committee on Education and the Senate Committee on Education and Health a copy of any complaint filed in a court of law to initiate a lawsuit against the institution or an employee of the institution in his official capacity for an alleged violation of the First Amendment to the United States Constitution no later than 30 days after such complaint is served.

2018, c. 751.

§ 23.1-401.2. Student journalists; freedom of speech and the press.

A. As used in this section:

"Institution-sponsored student media" means any material that is prepared, substantially written, published, or broadcast by a student journalist at a public institution of higher education under the direction of a student media adviser and distributed or generally made available to members of the student body. "Institution-sponsored student media" does not include any media intended for distribution or transmission solely in the course in which the media is produced.

"Student journalist" means a student enrolled at a public institution of higher education who gathers, compiles, writes, edits, photographs, records, or prepares information for inclusion in institution-sponsored student media.

"Student media adviser" means an employee of a public institution of higher education who is appointed, designated, or employed to supervise or provide instruction relating to institution-sponsored student media.

B. Except as provided in subsection C, a student journalist has the right to exercise freedom of speech and the press in institution-sponsored student media, including determining the news and opinion content of institution-sponsored student media, regardless of whether the media is supported financially by the governing board of the institution, supported through the use of campus facilities, or produced in conjunction with a course in which the student is enrolled.

C. No student journalist has the right to exercise freedom of speech or the press in institution-sponsored student media when such media:

1. Is libelous or slanderous;

2. Constitutes an unwarranted invasion of privacy;

3. Violates federal or state law; or

4. So incites students as to create a clear and present danger of the commission of an unlawful act, the violation of institution policy, or the material and substantial disruption of the orderly operation of the institution.

D. No student media adviser shall be dismissed, suspended, disciplined, reassigned, or transferred for (i) taking reasonable and appropriate action to protect a student journalist who engages in conduct that is protected by subsection B or (ii) refusing to infringe on conduct by a student journalist that is protected by subsection B, the First Amendment to the United States Constitution, or the Constitution of Virginia.

2020, c. 947.

§ 23.1-402. Collection and dissemination of information concerning religious preferences and affiliations.

A. Notwithstanding any provision of law to the contrary, any public institution of higher education may collect and disseminate information concerning the religious preferences and affiliations of its students, provided that no such institution shall (i) require any student to indicate his religious preference or affiliation or (ii) disseminate such information without the student's consent.

B. No consent given pursuant to this section shall be construed to allow any public institution of higher education to disseminate to federal government authorities information concerning the religious preferences and affiliations of its students for the purpose of compiling a list, registry, or database of individuals based on religious affiliation, national origin, or ethnicity, unless such dissemination is specifically required by state or federal law.

1977, c. 506, § 23-2.1; 2016, c. 588; 2019, c. 774.

§ 23.1-403. Access to campus and student directory provided to certain persons and groups.

Any public institution of higher education that provides access to its campus and student directory to persons or groups for occupational, professional, or educational recruitment shall provide access on the same basis to official recruiting representatives of the Armed Forces of the United States and the Commonwealth.

1982, c. 258, § 23-2.1:1; 2016, c. 588.

§ 23.1-404. Retention of student birth certificates authorized.

Any public institution of higher education that requests that an applicant who has been accepted for admission present a certified copy of his birth certificate as a condition of enrollment may retain a copy of the birth certificate in the student's record.

2007, c. 49, § 23-2.1:2; 2016, c. 588.

§ 23.1-405. Student records and personal information; social media.

A. As used in this section:

"Social media account" means a personal account with an electronic medium or service through which users may create, share, or view user-generated content, including, without limitation, videos, photographs, blogs, podcasts, messages, emails, or website profiles or locations. "Social media account" does not include an account (i) opened by a student at the request of a public or private institution of higher education or (ii) provided to a student by a public or private institution of higher education such as the student's email account or other software program owned or operated exclusively by a public or private institution of higher education.

B. Each public institution of higher education and private institution of higher education may require any student who attends, or any applicant who has been accepted to and has committed to attend, such institution to provide, to the extent available, from the originating secondary school and, if applicable, any institution of higher education he has attended a complete student record, including any mental health records held by the previous school or institution. Such records shall be kept confidential as required by state and federal law, including the federal Family Educational Rights and Privacy Act (20 U.S.C. § 1232g)(FERPA).

C. Student directory information, as defined by FERPA, and which may include a student's name, sex, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height as a member of an athletic team, dates of attendance, degrees and awards received, and other similar information, may be disclosed, provided that the institution has given notice to the student of (i) the types of information that the institution has designated as directory information, (ii) the right of the student to refuse the designation of any or all of the types of information about the student as directory information, and (iii) the period of time within which the student must notify the institution in writing that he does not want any or all of the types of information about the student designated as directory information. However, no institution shall disclose the address, telephone number, or email address of a student pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) unless the student has affirmatively consented in writing to such disclosure. Additionally, except as required by state or federal law, no institution shall disclose the address, telephone number, or email address of a student pursuant to 34 C.F.R. § 99.31(a)(11) unless (a) the disclosure is to students enrolled in the institution for educational purposes or institution business and the student has not opted out of such disclosure in accordance with this subsection and institution policy or (b) the student has affirmatively consented in writing to such disclosure except as required by state or federal law. This subsection shall not apply to disclosures, other than disclosures pursuant to 34 C.F.R. § 99.31(a)(11), permitted under FERPA.

D. No public institution of higher education shall sell students' personal information, including names, addresses, phone numbers, and email addresses, to any person. This subsection shall not apply to transactions involving credit, debit, employment, finance, identity verification, risk assessment, fraud prevention, or other transactions initiated by the student.

E. No public or private institution of higher education shall require a student to disclose the username or password to any of such student's personal social media accounts. Nothing in this subsection shall prevent a campus police officer appointed under Article 3 (§ 23.1-809 et seq.) of Chapter 8 from performing his official duties.

2008, c. 571, § 23-2.1:3; 2012, cc. 347, 382; 2014, c. 748; 2016, cc. 588, 597; 2018, c. 806; 2019, c. 229.

§ 23.1-406. Reporting of certain students issued student visas.

A. Each associate-degree-granting and baccalaureate (i) public institution of higher education and (ii) private institution of higher education and the governing board, president, or director of any flight school in the Commonwealth shall notify the Attorney General whenever (a) an applicant who has been accepted for admission to such institution pursuant to a student visa fails to enroll or (b) a student who has been attending such institution pursuant to a student visa withdraws from such institution or violates the terms of his visa. Such notification shall contain all available information from U.S. Citizenship and Immigration Services Form I-20 and shall be submitted no later than 30 days after discovery of the event for which notification is required.

B. The Attorney General shall notify U.S. Citizenship and Immigration Services and all other appropriate national, state, and local agencies of any such failure to enroll, withdrawal, or student visa violation.

C. This section is effective until superseded by federal action.

2002, c. 367, § 23-2.2; 2016, c. 588.

§ 23.1-407. Reporting of enrollment information to Sex Offender and Crimes Against Minors Registry.

A. Each associate-degree-granting and baccalaureate (i) public institution of higher education and (ii) private institution of higher education shall electronically transmit the complete name, social security number or other identifying number, date of birth, and gender of each applicant accepted to attend the institution to the Department of State Police, in a format approved by the Department of State Police, for comparison with information contained in the Virginia Criminal Information Network and National Crime Information Center Sex Offender Registry File. Such data shall be transmitted (a) before an accepted applicant becomes a student in attendance pursuant to 20 U.S.C. § 1232g(a)(6) or (b) in the case of institutions with a rolling or instantaneous admissions policy, in accordance with guidelines developed by the Department of State Police in consultation with the Council.

B. Whenever it appears from the records of the Department of State Police that an accepted applicant has failed to comply with the duty to register, reregister, or verify his registration information pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, the Department of State Police shall promptly investigate and, if there is probable cause to believe a violation has occurred, obtain a warrant or assist in obtaining an indictment charging a violation of § 18.2-472.1 in the jurisdiction in which the institution of higher education is located.

2006, cc. 857, 914, § 23-2.2:1; 2016, c. 588; 2020, c. 829.

§ 23.1-407.1. (Effective January 1, 2022) Admissions applications; criminal history.

A. No public institution of higher education shall (i) utilize an institution-specific admissions application that contains questions about the criminal history of the applicant or (ii) deny admission to any applicant solely on the basis of any criminal history information provided by the applicant on any third-party admissions application accepted by the institution.

B. Notwithstanding the provisions of subsection A, any public institution of higher education that requires each student to enroll in the Reserve Officers' Training Corps (ROTC) as a condition of enrollment may inquire into the criminal history of any applicant prior to the applicant's receiving a conditional offer of acceptance to determine his eligibility to accept a commission in the Armed Forces of the United States.

C. Nothing in this section shall be construed to prohibit a public institution of higher education from inquiring into the criminal history of any individual who has been admitted to but has yet to enroll at the institution. Any public institution of higher education may withdraw an offer of admission to any individual whom the institution subsequently determines to have a criminal history that poses a threat to the institution's community.

D. Notwithstanding the provisions of subsection A, a law school of a public institution of higher education that is accredited by the American Bar Association may inquire into the criminal history of any applicant to determine whether the applicant appears capable of being admitted to the bar. Any such law school shall inform applicants that the existence of a criminal history will not, by itself, disqualify an applicant for admission.

2021, Sp. Sess. I, c. 440.

§ 23.1-408. Annual reporting of the use of student fees.

Each public institution of higher education shall publish annually a descriptive report detailing (i) the amount and distribution of student activity fees assessed each semester or during an academic year and (ii) the name of each organization that receives funding of $100 or more from student activity fees and the nature of such organization's activity. Each such institution shall post such annual descriptive report on its website to facilitate its access by and availability to enrolled students and their parents.

2005, c. 532, § 23-2.3; 2016, c. 588.

§ 23.1-409. Transparency in higher education information.

Each baccalaureate public institution of higher education shall maintain and update annually no later than September 30 a tab or link on the home page of its website that shall include the following information:

1. The institution's six-year undergraduate graduation rate for each of the past 10 years;

2. The institution's freshman-to-sophomore retention rate for full-time undergraduate students for each of the past 10 years;

3. The institution's average annual percentage increase in base undergraduate tuition for each of the past 10 years;

4. The institution's average annual percentage increase in mandatory undergraduate comprehensive student fees for each of the past 10 years;

5. A link to the annual report of the use of student fees as required by § 23.1-408;

6. A link to the postsecondary education and employment data referenced in subsection D of § 23.1-204.1; and

7. A summary of the institution's budget, consistent with the institution's annual budgeting process, that includes (i) the major budget units (MBUs) in the institution and standard expenditure categories within each MBU for the current fiscal year and the previous fiscal year or (ii) a link to the annual reports required by subdivision B 11 of § 23.1-1303.

2015, cc. 325, 328, § 23-2.6; 2016, c. 588; 2018, c. 387; 2021, Sp. Sess. I, c. 447.

§ 23.1-410. Student loan vendors.

A. No employee of a public institution of higher education shall demand or receive any payment, loan, advance, deposit of money, services, or anything, present or promised, as an inducement for promoting any student loan vendor.

B. No public institution of higher education shall enter into any agreement with any student loan vendor that states or implies an exclusive relationship between the institution and vendor regarding student loans.

2008, c. 624, § 23-4.3:2; 2014, c. 484; 2016, c. 588.

§ 23.1-411. Federal student loan information.

A. A public institution of higher education that receives federal education loan information for a student enrolled in the institution shall provide to the student, at least once during each academic year, the following up-to-date information: (i) an estimate of (a) the student's total amount of federal education loans, (b) the student's total potential loan repayment amount, including principal and interest, for the total amount of federal education loans, and (c) the student's monthly loan repayment amounts for the total amount of federal education loans and (ii) the percentage of the aggregate borrowing limit the student has reached, unless such information is unavailable.

B. No public institution of higher education shall incur liability for providing information to a student in accordance with this section.

2018, c. 589.

§ 23.1-412. Non-academic student codes of conduct.

A. Each public institution of higher education shall adopt non-academic student codes of conduct.

B. Students and student organizations that participate in the non-academic student codes of conduct process as a complainant or respondent shall have the responsibilities and rights afforded to them by the institution's codes of conduct and related policies and procedures. The codes of conduct shall describe and define the rights and responsibilities of all enrolled students and student organizations and shall outline each step in the institution's procedures for responding to and resolving allegations of violations.

C. For violations that may result in a student or student organization facing the sanctions of suspension or expulsion, the non-academic student codes of conduct shall include:

1. The requirement that the accused student or student organization receive reasonable notice of the alleged violation, a general summary of the complaint, contact information of an institution's employee to receive additional information, and the date by which such contact must occur;

2. The opportunity for the accused student or student organization to present their version of events giving rise to the allegations;

3. The opportunity for the accused student or student organization to review and respond to information presented to the decision maker;

4. The opportunity for the accused student or student organization to select an advisor of their choice;

5. The opportunity for the accused student or student organization to present information by relevant and noncumulative witnesses;

6. The right of the accused student or student organization to not participate in proceedings;

7. The requirement that the complainant and respondent receive notice of the outcome of the proceedings;

8. A decision maker free from actual bias; and

9. A description of any internal appeal process.

D. The provisions of this section shall not apply to any public institution of higher education established pursuant to Chapter 25 (§ 23.1-2500 et seq.).

2020, c. 473.