Former student Sean Lohr accuses Virginia Tech board and official of First Amendment violations

A recent decision by the Court of Appeals of Virginia has upheld the dismissal of a lawsuit brought by a former university student who claimed that disciplinary actions taken against him violated his constitutional rights. The court’s ruling addresses questions about free speech on campus, due process in university disciplinary proceedings, and the legal protections granted to public university officials.

Sean Lohr filed an appeal after the Circuit Court of the City of Richmond dismissed his claims with prejudice against the Board of Visitors of Virginia Polytechnic Institute and State University (Virginia Tech) and Rachael Tully, who was at that time Assistant Director for Student Conduct. The appeal was heard by Chief Judge Decker, Judges Malveaux, and Duffan at Richmond, Virginia. Lohr’s original complaint was filed in September 2023 under 42 U.S.C. § 1983.

According to court documents, Lohr participated in a group known as the “Shirtless Boys,” which supported Virginia Tech’s women’s soccer team during matches in the 2021-22 school year. The group drew complaints from parents and athletic staff regarding their behavior at games. In September 2021, after an incident involving loud expressions from fans—some allegedly using profanities—Lohr was confronted by Senior Associate Athletics Director Reyna Gilbert-Lowry and later asked to leave by security. Following this event, Gilbert-Lowry filed a student conduct complaint against Lohr for disorderly or disruptive conduct.

Rachael Tully conducted a hearing on these allegations in October 2021. In her determination letter, she found Lohr responsible for disorderly or disruptive conduct but not for failure to comply or abusive conduct. As a result, Lohr received a deferred suspension from Virginia Tech until graduation provided he did not violate further policies; his privileges to attend athletic events were also curtailed unless similar behavior recurred. Additionally, he was placed under a no-contact order with respect to Gilbert-Lowry and required to write a letter acknowledging his actions.

In his lawsuit, Lohr sought declaratory and injunctive relief against the Board of Visitors for alleged violations of his First Amendment rights. He argued that the disciplinary policy used against him was unconstitutionally vague and overbroad and had been applied in an unconstitutional manner to protected expressive activity. He requested that any record of disciplinary action be expunged from his academic files. In addition, he sought compensatory and punitive damages from Tully individually for allegedly compelling him to write a letter affirming beliefs about his conduct—a requirement he claimed violated his right against compelled speech.

The defendants responded with various immunity defenses through a plea in bar—a procedural motion asserting legal bars to recovery regardless of factual disputes—and challenged whether proper parties had been named or served in accordance with law. The circuit court found ambiguity in whether Lohr’s complaint targeted individual board members or only the collective entity (the Board itself), noting that while names were listed in the caption followed by “Each in his or her official capacity,” service had only been made on university counsel as representative for the Board as an entity.

The circuit court ruled that it had not been clearly informed that individual board members were being sued in their official capacities rather than just as part of the corporate body. It also held that even if service issues were resolved later—as defense counsel acknowledged service was perfected around entry of one order—the pleadings themselves remained ambiguous about whom exactly was being sued.

On other issues raised by Lohr on appeal—including objections over exhibits referenced but omitted from his initial filing—the appellate court found he had waived arguments either by failing to object properly at trial or by not developing specific arguments on appeal about how any alleged errors affected outcomes.

Regarding substantive claims against Tully personally—including those related to compelled speech—the appellate court noted that qualified immunity shields government officials from liability unless they violate clearly established statutory or constitutional rights known to reasonable persons at the time. The court determined that even assuming some First Amendment violation occurred through requiring a letter of acknowledgment, there was insufficient argument presented challenging both prongs necessary to defeat qualified immunity: proof both that there was such a violation and that it involved clearly established law.

Finally, although earlier orders referenced absolute immunity for Tully as well as qualified immunity, upon reconsideration the circuit court clarified its final ruling rested solely on qualified immunity grounds—rendering arguments about absolute immunity moot.

The Court concluded: “For the foregoing reasons, we affirm the circuit court’s order sustaining the plea in bar.”

Sean Lohr was represented by Andrew T. Bodoh (Thomas H. Roberts & Associates). M. Hudson McClanahan appeared as Associate University Legal Counsel and Special Assistant Attorney General for appellees along with Kay Kurtz Heidbreder (University Legal Counsel). The case is identified as Record No. 0389-25-2.

Source: 0389252_Lohr_v_Board_of_Visitors_of_Virginia_Polytechnic_Institute_and_State_Opinion_Virginia_Court_of_Appeals.pdf