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Doe v. Rector & Visitors of George Mason University

United States District Court, E.D. Virginia, Alexandria Division

February 25, 2016

JOHN DOE, Plaintiff,

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          For John Doe, Plaintiff: Justin Emerson Dillon, LEAD ATTORNEY, Adam Ross Zurbriggen, Kaiser LeGrand & Dillon PLLC, Washington, DC USA.

         For Board of Visitors of George Mason University, Defendant: David Garnett Drummey, LEAD ATTORNEY, George Mason University, Fairfax, VA USA.

         For 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.

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         T.S. Ellis, III, United States District Judge.

         Plaintiff 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.[1] 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.

         This Memorandum Opinion addresses two issues[2] First, the parties have filed cross-motions for summary judgment on plaintiff's due process and free speech claims. These motions have been fully

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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,[3] 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.


         The 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.

         While 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 CAIT.

         The 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

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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.

         Despite 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."

         A few 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.[5] 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.

         Quite 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).[6] 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.

         Ultimately, Roe decided to press student disciplinary charges against plaintiff through GMU. Thus, on August 19, 2014, Ericson sent plaintiff an email informing

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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).

See id.

         One 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).[7] 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." Id.

         Under 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

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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).

         Approximately 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.[8] 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.

         In 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.

         By 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

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grounds for reversing the decision of the hearing panel.

         On or 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 5, 2014.

         Plaintiff 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, 2013.


         Analysis 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 separately.


         To 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).

         Here, 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 discloses that

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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.[9] 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.


         The 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.

         Analysis 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

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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.

         The 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).[10] 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 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 ...

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