If a student at a Virginia college reports a sexual assault and admits she had been drinking or using drugs, can the school still require her to take a mandatory alcohol or drug class?

Subject

Whether assigning mandatory drug or alcohol counseling to a student counts as "disciplinary action" for purposes of the immunity provision in Virginia Code § 23.1-808.

Plain-English summary

Virginia law (§ 23.1-808) requires every public and private nonprofit college and university (with the Virginia Military Institute carved out) to give students immunity from "disciplinary action" based on personal drug or alcohol use, when that use is admitted as part of a good faith report of sexual violence. The point is that a student who has been assaulted should never have to weigh whether reporting it will get her in trouble for the drink she had at the party.

Delegate Dan Helmer asked whether "disciplinary action" reaches mandatory counseling and courses. Schools have been arguing that counseling is "remedial," not "disciplinary," so they can still impose it on a reporting student.

AG Jason Miyares said the schools' distinction does not work. "Disciplinary action" in the statute is undefined, so it gets its ordinary meaning. Black's Law Dictionary and Webster's both define discipline broadly enough to cover correction, training, control, and rules-of-conduct enforcement, not just punishment. Two Virginia circuit court cases (Randolph and Gillispie) treated employer-mandated counseling as disciplinary action for grievance procedure purposes despite the employer's claim that it was remedial. The General Assembly knows how to limit a definition (it did exactly that in the parallel hazing immunity statute, § 23.1-821, which expressly allows mandatory counseling), and it chose not to limit § 23.1-808 the same way. The omission is meaningful.

The opinion also points to how Virginia colleges themselves describe these programs. Going through a survey of student handbooks (William and Mary, George Mason, JMU, Longwood, NVCC, Sweet Briar, Mary Washington, Richmond, UVA, Washington and Lee), the AG showed that universities themselves list mandatory substance abuse counseling alongside fines, probation, residence hall suspension, and other clearly-disciplinary measures.

Bottom line: a Virginia college or university cannot require a student to take a mandatory alcohol or drug class as a result of substance use the student disclosed when reporting a sexual assault. The amnesty in § 23.1-808 covers all forms of disciplinary action, including the kinds dressed up as remedial.

What this means for you

If you are a student at a Virginia college reporting a sexual assault

If you tell your school's Title IX office, residence life staff, or any other reporter that you had been drinking or using drugs at the time of the assault, the school cannot use that disclosure to require you to take a mandatory alcohol or drug class as discipline. The immunity is automatic by statute. You do not have to negotiate for it. If a conduct officer hands you a "remedial" course requirement that is tied to your disclosure, this AG opinion is the citation; a student conduct hearing or judicial appeal can use it.

The opinion does not address whether the school can offer voluntary support services. It can, and you may benefit from them. The line is between offering and requiring.

If you are a Title IX coordinator or student conduct officer

Audit your sanction matrix. If "mandatory alcohol education" or "mandatory drug counseling" appears in your standard responses to student substance use disclosed during a sexual violence report, those provisions are unenforceable to the extent the disclosure was made in connection with the good-faith sexual violence report. The Helmer opinion is direct, and the survey of peer institutions in footnote 11 shows that the existing common practice (treating these as remedial dispositions) is on the wrong side of the statute.

You can still offer voluntary educational resources, and the parallel hazing statute (§ 23.1-821) explicitly allows requiring "access to services to support individuals who receive disciplinary immunity." Section 23.1-808 has no such carve-out. Until the General Assembly amends the sexual violence statute, your safer policy is offering voluntary services without compelling participation.

If you are a college general counsel

Update training for student conduct staff this term. The opinion is short, clear, and likely to be cited if a student challenges a sanction. Two operational items: (1) clarify intake forms so substance use admissions made in sexual violence contexts are flagged for immunity, and (2) clarify that the distinction between a disclosure made "in conjunction with" a sexual violence report and a separate substance use violation is fact-sensitive. The statute does not give immunity for substance use violations entirely unrelated to a sexual violence report.

If you advise a student facing university discipline

Look closely at when and how the substance use disclosure happened. If it was in the course of a good faith sexual violence report, this opinion gives you immunity. If the school is pressing mandatory counseling, write the appeal in plain terms: § 23.1-808 prohibits this, and the AG construes "disciplinary action" to include compulsory counseling. Document the disclosure context in your written submission.

If you are a state legislator

The opinion is policy-friendly but it also illustrates the gap with the hazing statute. If the General Assembly wants to allow Virginia institutions to require services as a condition of substance use immunity in sexual violence reports, it can amend § 23.1-808 to add the same kind of carve-out § 23.1-821(C) has. Without that amendment, schools cannot compel counseling in the immunity context.

Common questions

Q: Does this mean a college can never require alcohol education?
A: No. The immunity is tied to substance use disclosed "in conjunction with a good faith report of an act of sexual violence." A mandatory alcohol course imposed for an unrelated student conduct violation (an underage drinking citation, for example) is unaffected. Where the substance use admission came in connection with the sexual violence report, the school cannot make the course mandatory.

Q: What about VMI?
A: VMI is expressly excluded from § 23.1-808. The immunity does not apply at VMI, and VMI's substance abuse policies are governed separately.

Q: Can the college "strongly encourage" counseling without making it mandatory?
A: Yes. The statute prohibits "disciplinary action," not all forms of outreach. The college can offer counseling, education, or peer support. What it cannot do is require it as a condition or sanction.

Q: What if the student admits drug use that goes beyond a sexual violence report? For example, a student says she was selling drugs when the assault happened.
A: The opinion is limited to immunity for "personal consumption" of drugs or alcohol. Section 23.1-808 only covers the student's own substance use. Distribution, manufacture, or sale to others is not within the immunity. Schools can still address those issues, but they should be careful not to use the disclosure context as the only basis for sanction.

Q: Does this opinion bind federal Title IX investigators?
A: No. Title IX is a separate federal regulatory regime. The opinion governs the Virginia statute and binds only to the extent of state law immunity. Federal Title IX procedures still apply on top.

Q: How should a school handle a separate hazing-related disclosure?
A: Section 23.1-821 gives immunity for hazing-related substance use disclosures, but expressly allows compulsory access to substance abuse services. So the immunity rule is different in hazing cases.

Background and statutory framework

Virginia codified a sexual violence reporting amnesty in § 23.1-808 to remove a barrier that survivor advocates had documented for years: students who had been drinking or using drugs often declined to report assaults because they feared university discipline. The amnesty applies to admissions made in conjunction with a good faith sexual violence report. It is mandatory: every public institution and every private nonprofit institution with limited exceptions must include the amnesty in its conduct policies.

The parallel statute, § 23.1-821, deals with hazing reports and contains the same general amnesty for substance use disclosures. The hazing statute, however, includes an explicit carve-out at subsection (C) that allows the institution to require access to services, including counseling and inpatient or outpatient treatment programs, after the immunity attaches. The drafting difference between the two statutes is what the AG calls dispositive: the General Assembly knew how to allow compulsory services and chose to do so for hazing but not for sexual violence.

Statutory interpretation in Virginia begins with plain meaning. The AG worked through several familiar tools: dictionary definitions for undefined terms, related statutes interpreted in pari materia (Butcher v. Commonwealth), and the institutional understanding of regulated parties (Ord. of Ry. Conductors of Am. v. Swan). The footnote-11 survey of student handbooks supplied the institutional understanding piece. None of those moves was novel; their application is what makes the opinion useful.

Citations and references

Statutes:
- Va. Code Ann. § 23.1-808 (sexual violence amnesty)
- Va. Code Ann. § 23.1-821 (hazing amnesty)

Cases:
- Randolph v. City of Richmond, 66 Va. Cir. 102 (2004) (employer counseling as disciplinary action for grievance purposes)
- Gillispie v. Va. Dep't of Envtl. Quality, 67 Va. Cir. 580 (2004) (same)
- Zinone v. Lee's Crossing Homeowners Ass'n, 282 Va. 330 (2011) (different language presumed intentional)
- Butcher v. Commonwealth, 298 Va. 392 (2020) (related statutes construed in pari materia)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/22-066-Helmer-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH OF VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

February 23, 2023

The Honorable Dan Helmer
Member, Virginia House of Delegates
Post Office Box 7267
Fairfax Station, Virginia 22039

Dear Delegate Helmer:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the term "disciplinary action," as used in Virginia Code § 23.1-808, includes mandatory drug or alcohol counseling or courses assigned to a student by a university or college because of the student's personal consumption of drugs or alcohol.

Response

It is my opinion that assigning mandatory drug or alcohol counseling or courses to a student based on the student's personal consumption of drugs or alcohol constitutes "disciplinary action" for purposes of § 23.1-808.

Applicable Law and Discussion

Section 23.1-808 provides as follows:

The governing board of each nonprofit private institution of higher education and each public institution of higher education except the Virginia Military Institute shall include as part of its policy, code, rules, or set of standards governing sexual violence a provision for immunity from disciplinary action based on personal consumption of drugs or alcohol where such disclosure is made in conjunction with a good faith report of an act of sexual violence.

Accordingly, per the plain language of the statute, institutions of higher education are barred from taking "disciplinary action" against a student for the student's drugs or alcohol use when the student admits to such use in the course of making a good faith report of an act of sexual violence.

The statute does not define the term "disciplinary action." When a statute contains no express definition of a term, "'[t]he general rule of statutory construction is to infer the legislature's intent from the plain meaning of the language used.' Therefore, 'an undefined term must be given its ordinary meaning, given the context in which it is used.'"

The term "disciplinary action" is based on the word "discipline." Black's Law Dictionary defines "discipline" in pertinent part to mean (1) "[p]unishment intended to correct or train" or (2) "[a] method of training people to control their behavior and obey rules." Another accepted definition is "training that corrects, molds or perfects . . . moral character[;] control gained by enforcing obedience or order . . . [; or] a rule or system of rules governing conduct or activity." The ordinary meaning of the term thus is not limited only to action that is punitive in nature, and the General Assembly has not included language in § 23.1-808 indicating that the term is so limited. Accordingly, a reasonable interpretation of "disciplinary action" as used in § 23.1-808 includes remedial action that is intended to correct or train a student.

Relying on dictionary definitions, Virginia court decisions have adopted a broad view in construing "discipline" and "disciplinary action" in other situations. In the employment context, court opinions have held that an employer's providing an employee "written counseling" related to conduct or performance constituted disciplinary action for purposes of applying grievance procedures. One court decision found that the action constituted discipline even though the employer argued it merely was "intended to improve" performance. Another court opinion explained that the employer's action was "designed to establish . . . 'prescribed conduct[,]'" "reaffirm[ed] a 'rule or system of rules governing conduct[,]'" and sought "to control . . . situations in the future . . . ." Also considered were potential future ramifications of the employer's action upon the employee.

Here, counseling, even if not intended as punishment, is designed to curb future incidents of substance abuse. Although requiring counseling may benefit the student, it also furthers the institution's interest in regulating student conduct and promoting conformity with established rules. In addition, assigning compulsory counseling could lead to further disciplinary action in the event the student fails to participate in the assigned program, as any such mandate, presumably, would be enforced in some way by the institution.

Indeed, the context in which "disciplinary action" is used here, higher education, favors a broad construction of the term. Although not dispositive, it is notable that colleges and universities in Virginia themselves generally consider mandatory drug or alcohol counseling or courses to be a form of "disciplinary action" when assigned to a student based on a rule violation; whether officially characterized as a sanction or a remedial measure, such action is part of the institution's established procedures for responding to a violation of its rules of conduct. That is, these actions are considered "disciplinary actions" alongside other enforcement measures such as fines, compulsory community service, written or oral warnings, probation, no contact orders, forfeiture or suspension of campus privileges, restitution, suspension from residence halls, and expulsion. That institutions subject to the requirements of § 23.1-808 consider the compelled participation in substance abuse programs to be "disciplinary" in nature strongly suggests that they fall within the meaning of "disciplinary action" for purposes of the statute's immunity provision.

This interpretation is further supported by the language of a similar disciplinary immunity statute. Section 23.1-821 provides "immunity from disciplinary action based on hazing or personal consumption of drugs or alcohol" for students who report acts of hazing. Although the hazing provision includes language similar to that of § 23.1-808, it also contains the following language:

Nothing in this section shall be construed to prohibit the governing board of any institution from requiring access to services to support individuals who receive disciplinary immunity . . . , including (i) counseling specific to alcohol abuse or drug abuse, or both, or (ii) inpatient or outpatient (a) alcohol counseling or treatment programs, (b) drug counseling or treatment programs, or (c) both alcohol and drug counseling or treatment programs.

This language demonstrates that the General Assembly recognizes that the referenced programs often are implicated in student disclosures of drug and alcohol use. By including the provision, the General Assembly implicitly also has acknowledged that institutions' responses to such disclosures may include requiring participation in such programs. Despite this awareness, the legislature chose not to exclude compulsory drug or alcohol counseling from the forms of disciplinary action proscribed under § 23.1-808. The General Assembly is assumed to have chosen its words with care when enacting these statutes.

Accordingly, based on the language of the statute, related legal authority, and prevailing education practice and policies, I conclude that the term "disciplinary action," as used in § 23.1-808, includes mandatory drug or alcohol counseling or courses assigned to a student by a college or university due to the student's drug or alcohol use. Consequently, an institution of higher education is barred from requiring a student to participate in a substance abuse class or treatment program when the student discloses such use while making a good faith report of an act of sexual violence.

Conclusion

For the foregoing reasons, it is my opinion that the term "disciplinary action" in § 23.1-808 includes mandatory drug or alcohol counseling or courses assigned to a student by a university or college because of the student's personal consumption of drugs or alcohol.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General