United States District Court, E.D. Virginia, Alexandria Division
T. S. ELLIS, III UNITED STATES DISTRICT JUDGE
Plaintiff was expelled from George Mason University ("GMU") following a constitutionally inadequate disciplinary process that found him responsible for sexual misconduct and sending electronic communications likely to cause distress. He sued and prevailed; the flaws in GMU's disciplinary process amounted to a deprivation of liberty without due process of law, and the speech for which he was found liable was constitutionally protected.
Two issues remain pending, namely (i) the issuance of an appropriate remedy and (ii) defendants' objections to the magistrate judge's February 23, 2015 Order granting plaintiff leave to proceed pseudonymously. Both issues have been fully briefed and argued and are now ripe for disposition.
A complete recitation of the facts and proceedings to date is included in the Memorandum Opinion resolving the merits ("Merits Opinion"). It suffices here to recite succinctly the facts pertinent to the parties' disputes regarding an appropriate remedy and whether to continue to proceed pseudonymously.
Plaintiff filed this lawsuit in February 2015 following his December 2014 expulsion from GMU on misconduct charges. Plaintiff alleged that shortly after his matriculation at GMU, he entered into a consensual BDSM relationship with Jane Roe, a student at another university. An important rule of the relationship involved the use of a safe word-"red"-which was what plaintiff and Roe agreed that Roe would say to signal that she wanted sexual activity to cease. In other words, as agreed between plaintiff and Roe, "no" did not mean "no" in the course of their BDSM activity, only "red" meant "no." This rule proved consequential; on October 27, 2013, during their relationship, plaintiff continued sexual activity with Roe despite her equivocation as to whether she consented and despite the fact that she tried to push plaintiff away. Because Roe never said "red, " plaintiff thought she was consenting within the terms of their relationship.
A few months after the October 27 incident, plaintiff and Roe ended their approximately one-year relationship. Plaintiff occasionally attempted to reconnect with Roe, including one incident in March 2014 in which plaintiff sent Roe a text message indicating that he would shoot himself if Roe did not speak with him. Eventually, Roe decided to report plaintiffs behavior to the GMU police department, which, in turn, put Roe in contact with Brent Ericson, GMU's Director of the Office of Student Conduct. After months of interaction with Ericson, Roe decided to pursue charges against plaintiff through GMU's disciplinary process.
Ericson initiated the disciplinary process by informing plaintiff in August 2014 that charges had been made against him. Importantly, every communication plaintiff received from GMU suggested that the disciplinary charges concerned the October 27 incident. In September 2014, a three-member panel of GMU faculty and staff members convened to hear the allegations against plaintiff. Importantly, by all indications the hearing panel, like plaintiff, believed that with respect to Roe's sexual misconduct allegations only the October 27 incident was in issue. Over the course of the ten-hour hearing that focused chiefly on the October 27 incident, a hearing plaintiff admits satisfied the requirements of due process, both plaintiff and Roe gave their sides of the story, which included plaintiffs explanation of the BDSM dynamic of his relationship with Roe. Ultimately, the panel found plaintiff not responsible (i.e., not guilty) of any violations of the student conduct code.
Roe appealed the hearing panel's decision. Notwithstanding Roe's failure to state an acceptable ground for an appeal under GMU's disciplinary procedures,  Ericson allowed the appeal to proceed, assigned it to himself, met ex parte and off-the-record with Roe, and firmly resolved to find plaintiff responsible for sexual misconduct before even giving plaintiff a chance to defend himself. In October 2014, Ericson overturned the hearing panel's decision and imposed a sanction of expulsion. Thereafter, plaintiff filed his own appeal to Juliet Blank-Godlove, GMU's Dean of Students. Blank-Godlove, like Ericson, met ex parte and off-the-record with Roe while considering the appeal, and she reviewed only those parts of the record that supported Ericson's decision. In December 2014, Blank-Godlove affirmed Ericson's decision and expelled plaintiff from GMU.
As recorded in the Merits Opinion, defendants violated plaintiffs right to due process (i) by failing to provide adequate notice of the full scope of the factual allegations in issue in the disciplinary proceeding, (ii) by permitting Roe, without a proper basis in GMU's internal disciplinary procedures, to appeal the finding of no responsibility, and (iii) by depriving plaintiff of an opportunity to mount an effective defense, including by prejudging his case and by holding off-the-record and ex parte meetings with Roe. See Doe, ___F.Supp. 3d ___, 2016 WL 775776, at *12. Moreover, as the Merits Opinion reflects, defendants infringed on plaintiffs freedom of speech by penalizing him for his March 2014 text message to Roe in which plaintiff threatened suicide. See Id. at * 14-19.
Following the issuance of the Merits Opinion, the parties were directed to file briefs addressing the question of a proper remedy. The parties complied, and the issue now has been fully briefed and argued.
Analysis of the remedy issue properly begins with a recitation of the principles that guide the issuance of an equitable remedy following a merits adjudication. Plaintiff seeks an injunction, which is an equitable remedy, the goal of which is "to do justice" on the specific facts at hand. See Bowen v. Hockley, 71 F.2d 781, 786 (4th Cir. 1934). Importantly, an injunction may not be used for "punishment or reparations for...past violations." Belk v. Charlotte-Mecklenburg Bd. of Edu., 269 F.3d 305, 347 (4th Cir. 2001) (en banc). Moreover, an injunction is an extraordinary remedy that requires plaintiff to demonstrate (i) that he has suffered an irreparable injury, (ii) that damages are unavailable or inadequate to compensate him for that injury, (iii) that an injunction is warranted based on the balance of hardships between the plaintiff and defendants, and (iv) that the public interest will not be disserved by an injunction. See A Helping Hand, LLC v. Baltimore Cnty., 355 F.App'x 773, 775-76 (4th Cir. 2009) (quoting eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006)).
At the outset, there can be no doubt that plaintiff has suffered an irreparable injury and that he has no adequate remedy at law. As to the former, defendants' unconstitutional conduct deprived plaintiff of three semesters of education at GMU, thereby delaying plaintiffs graduation from that institution. The clock cannot be turned back to December 2014 to allow plaintiff to resume his course of study on his preferred schedule. Instead, plaintiff will complete his education at GMU, if at all, several months or years behind the majority of his peers with whom he matriculated. And with regard to damages, no such remedy exists in light of the ruling that defendants are entitled to qualified immunity. See Doe v. Rector & Visitors of George Mason Univ., No. 15-cv-209, ___F.Supp. 3d ___, 2015 WL 5553855, at *8-10, *14 (granting defendants qualified immunity from individual damages liability because the rights asserted were not "beyond debate" at the time of the alleged violations). Thus, the ...