United States District Court, E.D. Virginia, Alexandria Division
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
John Doe, Plaintiff: Justin Emerson Dillon, LEAD ATTORNEY,
Adam Ross Zurbriggen, Kaiser LeGrand & Dillon PLLC,
Washington, DC USA.
Board of Visitors of George Mason University, Defendant:
David Garnett Drummey, LEAD ATTORNEY, George Mason
University, Fairfax, VA USA.
Brent Ericson employees of George Mason University, sued in
his or her official and individual capacity, jointly and
severally, Juliet Blank-Godlove employees of George Mason
University, sued in his or her official and individual
capacity, jointly and severally, The Rectors And Visitors of
George Mason University, Angel Cabrera, Defendants: David
Garnett Drummey, LEAD ATTORNEY, Brian Eugene Walther, George
Mason University, Fairfax, VA USA.
Ellis, III, United States District Judge.
in this Fourteenth Amendment due process and free speech case
is a former George Mason University (" GMU" )
student who was expelled in December 2014 following an
administrative process that found him responsible for
violating two of GMU's student conduct regulations, one
pertaining to sexual misconduct and one pertaining to
threats. In response to this expulsion, plaintiff filed the
instant action in February 2015 against GMU and three of its
officials in their individual and official capacities,
alleging violations of various state and federal
constitutional rights, state common law duties, and federal
law. By Order and Memorandum Opinion dated September 16,
2015, defendants' motion to dismiss plaintiff's
Second Amended Complaint was granted in part and denied in
part. As a result of this Order,
plaintiff's remaining claims are for (i) deprivation of a
constitutionally protected liberty interest without due
process of law and (ii) violation of plaintiff's right to
free speech. The named defendants, sued only in their
official capacities, are (i) Angel Cabrera, President of GMU,
(ii) Brent Ericson, an Assistant Dean of Students and
Director of the Office of Student Conduct at GMU, and (iii)
Juliet Blank-Godlove, Dean of Students at GMU.
Memorandum Opinion addresses two issues First, the parties
have filed cross-motions for summary judgment on
plaintiff's due process and free speech claims. These
motions have been fully
briefed and argued, and the motions are now ripe for
disposition. Additionally, this Memorandum Opinion provides
further explanation of the decision to deny plaintiff's
motion to reconsider the ruling on defendants' motion to
dismiss. The motion to reconsider, which was denied in a
ruling from the bench, sought, inter alia, to
restore plaintiff's allegation that defendants violated
his substantive due process right to sexual liberty, an
argument that warrants further elucidation here.
facts giving rise to the instant suit began in August 2012,
when plaintiff matriculated as a freshman at GMU. Shortly
thereafter, plaintiff began a romantic relationship with a
woman--referred to pseudonymously as Jane Roe--who was a
student at a different university. This relationship included
certain sexual practices known collectively as "
BDSM," which is an acronym for the practices it entails,
namely bondage, discipline, dominance, submission, sadism,
and masochism. Thus, a BDSM relationship might involve as
part of the sexual activity such actions as biting, choking,
spanking, or the use of restraints. In order to protect Roe,
who was the submissive party in the relationship, plaintiff
and Roe agreed on a safe word--" red" --that Roe
could use to indicate when she wanted sexual activity to
cease. According to plaintiff, the ground rules for his BDSM
relationship with Roe included that plaintiff should not stop
sexual activity unless and until Roe used the safe word.
Thus, under the rules of the relationship statements such as
" stop" or physical resistance to sexual conduct
were not a withdrawal of consent; only the safe word "
red" would signal a withdrawal of consent.
engaged in his relationship with Roe, plaintiff first came to
the attention of the GMU administration as a possible threat
to student safety. Specifically, in December 2012, a GMU
residence life official observed plaintiff carve the words
" kill them" into plaintiff's knuckles with a
pocket knife. This official intervened and accompanied
plaintiff to GMU's psychological services center. During
their walk to the center, plaintiff commented that he was
glad GMU had officials who would intervene in this way, as
such intervention might have prevented the 2007 shooting at
Virginia Tech. This incident put plaintiff on the radar of
GMU's Campus Assessment and Intervention Team ("
CAIT" ), which investigates students who might pose a
threat to others at GMU. At all times relevant to this
action, defendants Ericson and Blank-Godlove were members of
knuckle-carving incident was not plaintiff's only run-in
with GMU officials; during the course of his enrollment,
plaintiff incurred several disciplinary violations.
Specifically, plaintiff was charged for possessing lighter
fluid in his dormitory in December 2012. A few months later,
in April 2013, plaintiff was sanctioned again, this time for
possession of weapons on campus. On this occasion, plaintiff,
while in the GMU dining hall, had in his possession both a
knife and a " blackjack," a lead-filled,
leather-encased blunt force trauma
weapon. And then in May 2013, plaintiff was found responsible
for interfering with a learning environment by disrupting
class. In fact, plaintiff's disruption was sufficiently
severe that as part of the sanction he received, plaintiff
was ordered to have no contact with the professor of the
class plaintiff had disrupted. The members of CAIT were aware
of plaintiff's incursions and were watching with concern.
Thus, defendants Ericson and Blank-Godlove, as members of
CAIT, knew of plaintiff's disciplinary record, and both
came to view plaintiff as a threat to GMU.
his disciplinary record, plaintiff remained a student at GMU
and progressed to his second year of studies. He also
continued to live in the GMU dormitories, and he continued
his BDSM relationship with Roe. As such, plaintiff and Roe
unsurprisingly engaged in certain of their BDSM activities in
plaintiff's dormitory room. One such occasion was October
27, 2013. On that night, Roe went to plaintiffs dormitory
room and sexual activity ensued. During this sexual
encounter, Roe at one point pushed plaintiff away, but
plaintiff continued the sexual activity. At another point,
plaintiff asked Roe whether she wished to continue sexual
activity, to which Roe responded " I don't
know." Plaintiff continued with the sexual activity
despite the equivocation, given that Roe did not use the
agreed safe word " red."
months after the October 27, 2013 incident, plaintiff and Roe
ended their relationship. In the following months, plaintiff
occasionally attempted to communicate with Roe, often to no
avail. One such attempt was a March 2014 text message in
which plaintiff told Roe that if she did not respond, then
plaintiff would shoot himself. In April 2014, Roe reported
incidents of harassment by plaintiff and allegations of the
abusive nature of their prior relationship to her university.
Thereafter, in May 2014, Roe reported her allegations to
GMU's university police department, which in turn
reported the allegations to defendant Ericson. In June 2014,
Ericson first met with Roe to discuss Roe's allegations
and to inquire whether Roe wished to press administrative
charges against plaintiff through GMU's student
disciplinary process. From early June through late August of
2014, Ericson and Roe communicated repeatedly, exchanging
eighteen emails, which according to Ericson was more contact
than Ericson could recall having with any other complainant
in the course of a GMU disciplinary proceeding.
apart from her communications with Ericson, Roe also began
working with the GMU police. Specifically, in July 2014, Roe
cooperated with the GMU police to record a telephone
conversation between herself and plaintiff. Over the course
of that conversation, Roe asked plaintiff " why [he]
never stopped when [she] used the safe word," to which
plaintiff replied that he " felt like [she] could handle
it." See Recorded Telephone Conversation
Transcript (D. Mem. Supp., Ex. 9). This recording was
eventually used as evidence in a July 2014 hearing before the
Fairfax County General District Court in which Roe
successfully sought a protective order against plaintiff.
Roe decided to press student disciplinary charges against
plaintiff through GMU. Thus, on August 19, 2014, Ericson sent
plaintiff an email informing
plaintiff that GMU's Office of Student Conduct was "
in receipt of a referral for an incident that occurred last
semester involving a possible violation of the George Mason
University Code of Conduct, specifically with regard
to...Sexual Misconduct policy." See Aug. 19,
2014 Email (D. Mem. Supp., Ex. 2). The next day, a formal
letter issued suspending plaintiff from residing in GMU
housing owing to plaintiff's " alleged involvement
in an incident that took place on or about October 27th 2013
(and continuing) in a George Mason University Residence
Hall." See Aug. 20, 2014 Letter (P. Mem. Supp.,
Ex. 4). A few days later, plaintiff received another email
from the Office of Student Conduct, this time from GMU
official Andre Clanton. See Aug. 22, 2014 Email (D.
Mem. Supp., Ex. 3). Specifically, Clanton's email
informed plaintiff, inter alia, (i) that plaintiff
was the subject of " an alleged violation to [GMU's]
sexual misconduct policy" and (ii) that plaintiff was
charged with four violations of the Code of Conduct:
(1) Infliction of physical harm to any person(s), including
self (Code 2013.7.A);
(2) Deliberate touching or penetration of another person
without consent (Code 2013.8.A);
(3) Conduct of a sexual nature (Code 2013.8.C); and
(4) Communication that may cause injury, distress, or
emotional or physical discomfort (Code 2013.9.B).
week after Clanton's initial email, plaintiff received a
follow-up email containing a narrative statement by Roe
describing her allegations and Roe's list of witnesses
and evidence, which included the GMU police recording of the
July 2014 telephone conversation. See Aug. 29, 2014
Email (D. Mem. Supp., Ex. 5). Roe's narrative statement
alleged " a number of violent and harassing
incidents," including " much distressing
communication" from plaintiff from January 2013 through
July 2014. See Roe Statement (D. Mem. Supp., Ex. 6).
Moreover, Roe alleged that " [o]n many occasions,
without [her] consent, [plaintiff] forced sex on [her]."
Id. Importantly, the only instance of alleged sexual
misconduct Roe described with any particularity was the
October 27, 2013 incident, when plaintiff and Roe engaged in
sexual activity in plaintiff's dormitory room. See
id. Indeed, Roe described the October 27, 2013 incident
as " [t]he most vivid" and the one she wanted GMU
" to know most about" Id. In addition to
the foregoing email communications, plaintiff received "
official notification" of his alleged misconduct from
Clanton by letter dated September 4, 2014. See Sept.
4, 2014 Letter (P. Mem. Supp., Ex. 6). This letter was
wholly silent as to what specific conduct was alleged to have
constituted a violation of the Code of Conduct, instead
referencing only that the " alleged violation(s)"
occurred " on or around November 2013."
GMU policy, allegations of sexual misconduct are adjudicated
by a three-member panel of the Sexual Misconduct Board, which
consists of GMU faculty members and staff. On September 5,
2014, a panel convened a hearing on the allegations against
plaintiff. This hearing lasted ten hours, and both plaintiff
and Roe had the opportunity to testify subject to
cross-examination, to call witnesses, and to submit
evidence. In the course of the hearing, Roe testified as to
her allegations about the events of October 27, 2013.
Plaintiff, in turn, testified about the BDSM nature of his
relationship with Roe, including the rule pertaining to the
safe word. In at least one instance, the panel explored the
nature of the BDSM relationship by inquiring about events
beyond October 27, 2013. Specifically, at one point a
panelist asked plaintiff if there were " instances
outside of October 27th where the word 'red' was used
and [plaintiff] did not stop." See Hearing
Transcript, 80:4-6 (D. Mem. Supp., Ex. 23). Plaintiff
responded that in " very rare" and " unusual
circumstances," he would be " set in the routine of
things" and Roe would need to say " red"
again, at which point plaintiff " would stop
immediately." Id. at 80:7-21. But as plaintiff
explained, upon hearing the safe word he " would not
just blatantly ignore and then continue" with
intercourse. Id. at 80:19-20. On September 12, 2014,
the panel issued a decision finding plaintiff not responsible
as to each of the four charges against him concerning
plaintiff's " involvement in an incident that
occurred on or around October 27, 2013." See
Sept. 12, 2014 Letter (D. Mem. Supp., Ex. 24).
one week after the panel's decision issued, Roe filed an
appeal of the panel's decision that plaintiff was not
responsible on all charges. Specifically, Roe alleged
that there was a " substantial procedural
irregularity" in that the panel found plaintiff not
responsible despite the fact that, in Roe's view,
plaintiff confessed. It is worth noting here that under GMU
policy, in order to justify an appeal a " substantial
procedural irregularity" must be identified " by
the conduct officer." See Code at 17. As
defined in the GMU policies, a " conduct officer"
is coextensive with a " hearing officer."
See id. at 4. The hearing officer for
plaintiff's adjudication was Clanton, who appears on this
record to have played no role in identifying a substantial
procedural irregularity. Nevertheless, Ericson permitted
Roe's appeal, and Ericson assigned the appeal to himself
notwithstanding his prior involvement in the case.
adjudicating Roe's appeal, Ericson engaged in numerous
ex parte (and, the summary judgment record suggests,
completely off the record) meetings with persons involved.
For instance, Ericson met with each of the panelists who had
adjudicated plaintiff's case in the first instance.
Ericson also met with Roe. Finally, on October 8, 2014,
Ericson met with plaintiff. Importantly, Ericson concedes
that as of his meeting with plaintiff, Ericson had already
prejudged the appeal and decided to find plaintiff
responsible for sexual assault.
letter dated October 10, 2014, Ericson formally announced his
decision, finding plaintiff responsible for violating Code
2013.8.A (deliberate touching or penetration of another
person without consent) and Code 2013.9.B (communication that
may cause injury, distress, or emotional or physical
discomfort). As a result of these findings, Ericson imposed
the sanction of expelling plaintiff from GMU. Ericson's
October 10 letter did not explain the factual basis for his
decision or the
grounds for reversing the decision of the hearing panel.
about October 16, 2014, plaintiff appealed Ericson's
decision as improper on the ground that it did not meet the
criteria for an appeal under GMU policy. Plaintiff was
allowed to pursue this appeal, although GMU had never
previously allowed an appeal of an appeal and GMU has never
allowed an appeal of an appeal since. Plaintiff's appeal
was before Blank-Godlove, the Dean of Students. In the course
of her deliberation, Blank-Godlove met separately and off the
record with plaintiff (accompanied by counsel), Roe, and
Ericson. Blank-Godlove did not review the entire record;
rather, she reviewed only those portions of the record
identified by Ericson as supporting his decision. On December
5, 2014, Blank-Godlove issued her decision via a form letter
that affirmed Ericson's decision on responsibility and
the sanction of expulsion. Accordingly, plaintiff's GMU
transcript now notes a non-academic expulsion as of December
commenced the instant lawsuit in February 2015, claiming,
inter alia, that his expulsion was a denial of due
process in various respects. Plaintiff now knows--only as a
result of discovery in this action--that the review of
Roe's appeal was de novo and that plaintiff was
expelled for conduct other than what occurred on October 27,
begins with the parties' cross-motions for summary
judgment. At issue on these motions are plaintiff's two
remaining claims, namely that defendants deprived plaintiff
of liberty without due process of law and infringed upon his
right to free speech. Each of these counts is addressed
prevail on a procedural due process claim, plaintiff must
establish (i) that he possessed a protected liberty interest,
(ii) that the state or its agents deprived him of this
interest, and (iii) that this deprivation was effectuated
without constitutionally sufficient process. See
Sansotta v. Town of Nags Head, 724 F.3d 533, 540
(4th Cir. 2013). It is well settled that a liberty interest
is implicated " [w]here a person's good name,
reputation, honor, or integrity is at stake because of what
the government is doing to him." Wisconsin v.
Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27
L.Ed.2d 515 (1971). Nevertheless, " injury to reputation
alone does not deprive an individual of a constitutionally
protected liberty interest." Tigrett v. Rector &
Visitors of Univ. of Va., 290 F.3d 620, 628 (4th Cir.
2002). Rather, as the Fourth Circuit has explained, in order
to constitute a protected liberty interest a "
reputational injury [must be] accompanied by a state action
that 'distinctly alter[s] or extinguishe[s]' [a]
legal status." Shirvinski v. U.S. Coast Guard,
673 F.3d 308, 315 (4th Cir. 2012). The Fourth Circuit has
further noted that a reputational injury is actionable if
there is even " a likelihood that prospective employers
or members of the public [will] see the damaging
information." Sciolino v. City of Newport News,
480 F.3d 642, 650 (4th Cir. 2007).
the undisputed record facts reflect that plaintiff was
expelled from GMU on a charge of sexual misconduct. Such a
charge plainly calls into question plaintiff's "
good name, reputation, honor, or integrity."
Constantineau, 400 U.S. at 437. Moreover,
plaintiff's expulsion constitutes an alteration of his
legal status as a student Cf. Sciolino, 480
F.3d at 649 (termination of employment constitutes a
qualifying alteration of status). The record further
plaintiff's transcript bears a notion that he was the
subject of a non-academic expulsion. Thus, plaintiff's
future educational and employment endeavors, which routinely
require disclosure of academic transcripts, may well lead to
the public's learning that plaintiff was expelled for
misconduct. Although the specific nature of the
charge is not disclosed, any reasonable person will conclude
that a non-academic justification for an expulsion implies
" the existence of serious character defects."
Id. at 646 n2 (internal quotations omitted). And if
this were not sufficient, the undisputed record reflects that
Roe, a member of the general public, was in fact informed
that plaintiff was found liable for sexual misconduct by
Ericson. Given this analysis, and because plaintiff's
expulsion was indisputably a state action, the undisputed
record makes clear that state action has deprived plaintiff
of a protected liberty interest.
question then becomes whether GMU afforded constitutionally
adequate process. In this regard, plaintiff alleges that four
distinct but interrelated procedural errors render the
process here constitutionally insufficient. First, plaintiff
argues that Ericson deviated from established GMU procedures
and covered up this deviation by issuing a decision devoid of
explanation. Second, plaintiff contends that Ericson's
de novo review of the record resulted in a finding
of responsibility for events about which plaintiff had no
notice were in issue. Third, plaintiff objects to the
off-the-record ex parte meetings that occurred with
Roe during the appeal. And fourth, plaintiff argues that
Ericson and Blank-Godlove were impermissibly biased
decision-makers. Defendants, in turn, argue that plaintiff
had adequate notice and opportunity to be heard on the
specific facts of this case, namely that plaintiff (in
defendants' view) admitted to sexual misconduct.
of the adequacy of process under the Due Process Clause is
governed by the familiar three-factor balancing test set
forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96
S.Ct. 893, 47 L.Ed.2d 18 (1976). The three relevant factors
are (i) the private interest that will be affected by the
official action, (ii) the risk of an erroneous deprivation of
such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural
safeguards, and (iii) the government's interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirements would entail. See id. As the
Supreme Court cautioned in Mathews, " [t]he
judicial model of an evidentiary hearing is neither a
required, nor even the most effective, method of
decisionmaking in all circumstances." Id. at
348. Rather, the essence of the due process requirement is
that a person should receive notice and an
adequate opportunity to be heard in light of the
circumstances at issue. See id. at 349. In
this respect, due process is " flexible" and
context sensitive. Id. at 334.
Fourth Circuit has provided guidance on the application of
the principles of Mathews in the higher education
disciplinary context. Specifically, the Fourth Circuit has
embraced the Fifth Circuit's decision in Dixon v.
Ala. State Bd of Educ., 294 F.2d 150, 158 (5th Cir.
1961), observing that Dixon's " summary of minimum
due process requirements for disciplinary hearings in an
academic setting is still accurate today." Henson v.
Honor Comm. of Univ. of Va., 719 F.2d 69, 74 (4th Cir.
1983). In Dixon, 294 F.2d at 158,
the Fifth Circuit articulated " the nature of the notice
and hearing required by due process prior to expulsion from a
state college or university." As a general matter, a
student threatened with expulsion is entitled to notice that
" contain[s] a statement of the specific charges and
grounds which, if proven, would justify expulsion."
Id. And where the charge is misconduct,
a hearing which gives the...administrative authorities of the
college an opportunity to hear both sides in considerable
detail is best suited to protect the rights of all involved.
This is not to imply that a full-dress judicial hearing, with
the right to cross-examine witnesses, is
required...Nevertheless,...the student should be given the
names of the witnesses against him and an oral or written
report on the facts to which each witness testifies. He
should also be given the opportunity to present to...an
administrative official of the college, his own defense
against the charges and to produce either oral testimony or
written affidavits of witnesses in his behalf. If ...