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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

JOHN DOE,
Plaintiff,

v. Case No. 1:15-cv-209

THE RECTOR AND VISITORS OF
GEORGE MASON UNIVERSITY, et aL,
Defendants.

MEMORANDUM OPINION

Plaintiff in this Fourteenth Amendment due process and free speech case is a former
George Mason University student who was expelled in December 2014 following an
administrative process that found him responsible for violating two of student conduct
regulations, one pertaining to sexual misconduct and one pertaining to threats. In response to this
expulsion, plaintiff ?led the instant action in February 2015 against GMU and three of its
of?cials in their individual and of?cial 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 deprivation of a constitutionally protected liberty interest without due process
of law and (ii) violation of plaintiffs right to free speech. The named defendants, sued only in

their of?cial capacities, are Angel Cabrera, President of GMU, (ii) Brent Ericson, an Assistant

 

1 See Doe v. Rector Visitors of George Mason Univ., et al., No. 15-cv-209, F. Supp. 3d 
2015 WL 5553855 (E.D. Va. Sept. 16, 2015) (Memorandum Opinion) (Doc. 50); Doe v. Rector
Visitors of George Mason Univ., et al., No. 15-cv-209 (E.D. Va. Sept. 16, 2015) (Order) (Doc.
5 1).

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Dean of Students and Director of the Of?ce of Student Conduct at GMU, and Juliet Blank-
Godlove, Dean of Students at GMU.

This Memorandum Opinion addresses two issues.2 First, the parties have ?led 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,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.

I.4

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.

 

2 A third issue also remains pending but will be resolved separately. To date, plaintiff has
proceeded pseudonymously pursuant to the order of a magistrate judge. See Doe v. Rector 
Visitors of George Mason Univ., et al., No. 15-cv-209 (E.D. Va. Feb. 23, 2015) (Order) (Doc. 6).
Defendants ?led a timely objection to this order, which was briefed, argued, and taken under
advisement pending the development of a full record that would permit an appropriate balancing
of the relevant interests. See Doe, F. Supp. 3d 2015 WL 5553855, at *1 n.1. As the record
is now complete, disposition of defendants? objection is appropriate, and a separate order will
issue addressing the objection at the conclusion of the litigation.

3 See Doe v. Rector Visitors of George Mason Univ., et al., No. lS-cv-209 (E.D. Va. Oct. 2,
2015) (Order) (Doc. 57).

4 The facts recited here are primarily derived from the parties? statements of undisputed facts
submitted as part of their memoranda in support of summary judgment pursuant to Local Rule
Additional undisputed facts are derived from the summary judgment record. In the few
instances where the parties dispute a fact, the dispute is noted and the materiality of the fact is
addressed.

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This relationship included certain sexual practices known collectively as 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 plainti? 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 ?rst came to the attention of the
GMU administration as a possible threat to student safety. Speci?cally, in December 2012, a
GMU residence life official observed plaintiff carve the words ?kill them? into plaintiffs
knuckles with a pocket knife. This of?cial intervened and accompanied plaintiff to 
services center. During their walk to the center, plaintiff commented that he was
glad GMU had of?cials 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 
Campus Assessment and Intervention Team 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 of?cials; during
the course of his enrollment, plaintiff incurred several disciplinary violations. Speci?cally,

plaintiff was charged for possessing lighter ?uid in his dormitory in December 2012. A few

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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-?lled, 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 suf?ciently 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? 
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 unsurprisineg 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 plaintiff?s 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 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

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relationship to her university. Thereafter, in May 2014, Roe reported her allegations to 
university police department, which in turn reported the allegations to defendant Ericson. In June
2014, Ericson ?rst met with Roe to discuss Roe?s allegations and to inquire whether Roe wished
to press administrative charges against plaintiff through 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. Speci?cally, 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 plaintiff that 
Of?ce 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, speci?cally

with regard Misconduct policy.? See Aug. 19, 2014 Email (D. Mem. Supp., Ex. 2).

 

5 Because certain of Roe?s allegations related to sexual activity occurring on campus,
GMU had jurisdiction to adjudicate any sexual misconduct plaintiff may have committed during
those incidents.

6 The quoted portion of this conversation was not addressing the events of October 27, 2013.

5

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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 Of?ce of Student
Conduct, this time from GMU of?cial Andre Clanton. See Aug. 22, 2014 Email (D. Mem. Supp.,
Ex. 3). Speci?cally, Clanton?s email informed plaintiff, inter alia, that plaintiff was the
subject of ?an alleged violation to sexual misconduct policy? and (ii) that plaintiff was
charged with four violations of the Code of Conduct:
(1) In?iction of physical harm to any person(s), including self (Code 

(2) Deliberate touching or penetration of another person without consent (Code


(3) Conduct of a sexual nature (Code 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
many occasions, without [her] consent, [plainti?] 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

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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 ?of?cial noti?cation? 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 speci?c 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 evidence. In the course of the hearing, Roe testi?ed
as to her allegations about the events of October 27, 2013. Plaintiff, in turn, testi?ed 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. Speci?cally, 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

 

7 Defendants argue that this exhibit was only a draft communication and was never actually sent
to plaintiff. Whether the letter was sent is immaterial. If the September 4 letter was sent, it
reinforces plaintiff? argument that GMU failed to provide adequate notice because the letter
referred only to a single incident, but the fact that the September 4 letter was not sent would
neither undercut plaintiff? 5 case nor bolster defendants? case.

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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
?nding 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 ?led an appeal of the
panel?s decision that plaintiff was not responsible on all charges.8 Speci?cally, 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 identi?ed ?by
the conduct of?cer.? See Code at 17. As de?ned in the GMU policies, a ?conduct of?cer? is
coextensive with a ?hearing of?cer.? See id. at 4. The hearing of?cer 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.

 

8 Under GMU procedures, both the accused and the complainant can pursue an appeal based on
any of three grounds:

(1) Information not available at the hearing that, had it been available, would in all
reasonable likelihood have produced a different ?nding;

(2) Substantial procedural irregularity with respect to applicable procedures as
determined by a conduct of?cer; and/or

(3) Perceived hearing of?cer bias based on factors other than the hearing of?cer?s
decision and rationale for such decision.

See Code of Student Conduct at 17 (D. Mem. Supp, Ex. 4).
8

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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 plaintist case in the ?rst
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 ?nd plaintiff responsible for sexual assault.

By letter dated October 10, 2014, Ericson formally announced his decision, ?nding
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 ?ndings, 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.

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 identi?ed by
Ericson as supporting his decision. On December 5, 2014, Blank-Godlove issued her decision via
a form letter that af?rmed 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.

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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.

II.

Analysis begins with the parties? cross-motions for summary judgment. At issue on these
motions are plaintiffs 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.

A.

To prevail on a procedural due process claim, plaintiff must establish that he
possessed a protected liberty interest, (ii) that the state or its agents deprived him of this interest,
and that this deprivation was effectuated without constitutionally suf?cient 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 US. 433,
437 (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
alter[s] or extinguishe[s]? legal status.? Shirvinski v. US. 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

10

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[will] see the damaging information.? Sciolino v. City of Newport News, 480 F.3d 642, 650 (4th
Cir. 2007).

Here, the undisputed record facts re?ect 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 ?irther discloses that
plaintiff?s transcript bears a notion that he was the subject of a non-academic expulsion. Thus,
plaintiff? 3 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 speci?c nature of the charge is not disclosed, any reasonable person
will conclude that a non-academic justi?cation for an expulsion implies ?the existence of serious
character defects.? Id. at 646 n.2 (internal quotations omitted). And if this were not suf?cient, the
undisputed record re?ects 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.

 

9 In the context of academic discipline, the possibility that a disciplinary violation will ?interfere
with later opportunities for higher education and employment? is so clear as to almost be a
truism. See Goss v. Lopez, 419 US. 565, 575 (1975); Flaim v. Med. Coll. of Ohio, 418 .3d 629,
638 (6th Cir. 2005) (citing Goss). To be sure, plaintiff?s disciplinary records are considered
con?dential under the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g, but this
information can be shared with plaintiff?s authorization. Thus, if plaintiff seeks education or
employment with institutions or organizations that require disclosure of such records, plaintiff 
only options are to forgo opportunities with those institutions or organizations or to authorize the
dissemination of records that would likely foreclose plaintiff?s ability to pursue such
opportunities because of the allegedly defamatory nature of the records.

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B.

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 insuf?cient. 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 ?nding 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 impennissibly biased decision-makers.
Defendants, in turn, argue that plaintiff had adequate notice and opportunity to be heard on the
speci?c 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 US. 319, 335 (1976).
The three relevant factors are the private interest that will be affected by the of?cial 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 the
government?s interest, including the function involved and the ?scal 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

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oppommity to be heard in light of the circumstances at issue. See id at 349. In this respect, due
process is ??exible? 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. Speci?cally, 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 .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 speci?c charges and grounds which, if proven, would justify
expulsion.? Id. And where the charge is misconduct,

a hearing which gives 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 ?ill-dress judicial hearing, with

the right to cross-examine witnesses, is student

should be given the names of the witnesses against him and an oral or written

report on the facts to which each witness testi?es. He should also be given the

opportunity to present administrative of?cial of the college, his own

defense against the charges and to produce either oral testimony or written
af?davits of witnesses in his behalf. If the hearing is not before the [administrator]
directly, the results and ?ndings of the hearing should be presented in a report

open to the student's inspection.

Id. at 159. It remains now to apply the principles of Dixon, as endorsed by Henson, to the

adequacy of plaintiff? 5 notice and opportunity to be heard in this case.

 

'0 It is worth noting that although Dixon was decided pre-Mathews, Henson was decided post-
Mathews, and therefore Dixon must be understood in this circuit as consistent with Mathews.

l3

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1.

Analysis properly begins by examining the suf?ciency of the notice defendants provided
to plaintiff, an issue the parties vigorously dispute. It is undisputed that plaintiff was expelled for
sexual misconduct occurring on dates other than October 27, 2013; the disagreement between the
parties is whether plaintiff had notice that such dates were in issue. In defendants? view, plaintiff
was put on notice that the entirety of his relationship with Roe was in issue at several points in
the disciplinary process. Plaintiff contests this characterization, arguing that the only speci?c
notice afforded to him was with regard to the events of October 27, 2013. As Dixon makes clear,
a public university student accused of misconduct is entitled to ?a statement of the specific
charges? against him. 294 P.2d at 158 (emphasis added). A review of the record reveals that
plaintiff?s only speci?c notice here was with respect to the events of October 27, 2013.

The ?rst notice of disciplinary charges that plaintiff received was an August 19, 2014
email from Ericson informing plaintiff that Ericson?s of?ce 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.? See Aug. 19, 2014 Email (D. Mem. Supp., Ex. 2). This opaque
notice can hardly be said to give plaintiff a clear indication of the speci?c nature of the charge,
but importantly the email does suggest by its use of ?an incident? that the allegation against
plaintiff was limited in scope to a single incident. Id. Plaintiff received further notice the next
day in the form of a letter on GMU letterhead that referenced plaintiff ?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). Although the ?and

continuing? language appears broad, the very next sentence of the letter refers again to a singular

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?incident.? Id. Thus, this notice, which bears more traditional indicia of formality, can be said to
put plaintiff on speci?c notice only that the events of October 27, 2013, were in issue.

Plaintiff next received notice from Andre Clanton, Associate Director of Of?ce
of Student Conduct, via an August 22, 2014 email. This email provided no speci?cs as to the
alleged factual basis of the charges, but it once again referenced ?an alleged violation? in the
singular. See Aug. 22, 2014 Email (D. Mem. Supp., Ex. 3). Thereafter, 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. 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 many
occasions, without [her] consent, [plaintiff] forced sex on Id. In defendants? view, Roe?s
narrative statement is signi?cant because it clearly references multiple alleged incidents of abuse
over a period of time. Yet, the only incident described with specificity is October 27,
2013. And importantly, Roe is not a state actor, and her statement therefore cannot put plaintiff
on notice as to what incidents the state wished to hold plaintiff accountable. In light of the
communications prior to his receipt of Roe?s narrative statement, plaintiff very reasonably could
have believed that GMU was pursuing charges only for the October 27, 2013 incident. 
?of?cial noti?cation? letter dated September 4, 2014, did nothing to remedy the defects; it
exacerbated them. See Sept. 4, 2014 Letter (P. Mem. Supp., Ex. Speci?cally, the of?cial

noti?cation expressly narrowed the timeframe in issue to ?on or around November 2013,? a

 

1' Recall that there is some dispute as to whether this letter was actually sent and received, but
that this dispute is ultimately immaterial. See supra n.7.

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timeframe consistent with the representation that the events of October 27, 2013, were
exclusively in issue. Id.

A fair and careful reading of the transcript of the panel hearing highlights the fact that
plaintiff was not on notice as to the scope of the charges against him, as the transcript discloses
that the events of October 27, 2013, were the central focus of the hearing.12 Moreover, following
the panel hearing, the letter ?nding plaintiff not responsible speci?cally noted that the hearing
?concern[ed] [plaintiff? s] involvement in an incident that occurred on or around October 27,
2013.? See Sept. 12, 2014 Letter (D. Mem. Supp., Ex. 24). In short, defendants argue that even
though the panel conducting the hearing was not on notice that the whole of plaintiff?s
relationship was in issue, somehow plaintiff was on notice of that fact. Yet, where, as here, the
communications plaintiff received repeatedly referenced a single incident and timeframe, and the
panel conducting the disciplinary hearing believed that only that same single incident in that
same timeframe was before the panel, there can be little doubt that the notice to plaintiff was
constitutionally inadequate to inform plaintiff that additional events were charged against him.

Nor was this constitutionally inadequate notice cured at any point during the appeals that
followed. Indeed, with respect to Roe?s appeal to Ericson, it is undisputed that plaintiff ?received
no notice that he was being charged with instances of sexual misconduct apart from Ms. Roe?s

allegations as to what occurred on October 27, 2013.?13 Although plaintiff concedes that he

 

12 See, e. Hearing Transcript, 152:19-20 (?So we?re here today talking about the events of
October 27th. . (statement by Chairperson Crear).

'3 Plaintiff asserts this as an undisputed fact in his separately captioned statement of undisputed
material facts required by Local Rule 56. See P. Mem. Supp., 1] 44. Defendants did not respond
to any of plaintiffs undisputed facts in their opposition to plaintiff?s motion for summary
judgment, so this fact is properly deemed admitted. See Local Rule Court may
assume that facts identi?ed by the moving party in its listing of material facts are admitted,

16

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discussed incidents beyond October 27, 2013, with Ericson, that does not cure the lack of
constitutionally adequate notice in the circumstances here because the fact that matters are
discussed does not constitute notice that the discussed matters are validly in issue.14 See Doe
Dep., 140:7-14lz6. The same is true with respect to any conversations plaintiff and Blank-
Godlove may have had about events beyond October 27, 2013. And it is worth noting that even
though plaintiff discussed events beyond October 27, 2013, with both Ericson and Blank-
Godlove, plaintiff received no notice in the decisions of either of these of?cials that the basis for
their decisions in any way related to events beyond October 27, 2013.

Simply put, plaintiff was not fairly on notice that events other than those of October 27,
2013, were at issue in his disciplinary hearing. And moreover, such a lack of notice cannot be
divorced from the adequacy of plaintiff?s opportunity to be heard. See Flaim, 418 F.3d at 638
(stating that constitutionally adequate notice must afford ?a meaningful opportunity to prepare
for the hearing?) (internal quotations omitted). To elucidate, the scope and content of the defense
plaintiff mounted to the charges against him may have been different had plaintiff had better
notice. Speci?cally, plaintiff has contended, and continues to contend, that in the context of his
BDSM relationship with Roe, the circumstances defendants took as admissions of sexual
misconduct were in fact consensual. With adequate notice that these admissions were fair game

for discipline, plaintiff may have put on additional evidence supplying greater context to his

 

unless such a fact is controverted in the statement of genuine issues ?led in opposition to the
motion?). All subsequent citations to paragraphs of plaintiffs undisputed material facts should
be understood as properly admitted pursuant to Local Rule 

14 To be sure, there may have been ways to provide adequate notice. For instance, had an
unbiased appellate of?cial informed plaintiff that the appellate review would be de novo and
cover the entirety of plaintiffs relationship with Roe, such that plaintiff had time to compile a
meaningful defense, that notice may well have cured any constitutionally signi?cant de?ciency.

17

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statements in order to demonstrate the truth of his contention.15 Without adequate notice,
government of?cials can attempt, as defendants do here, to construct a post hoc justi?cation for
their missteps by suggesting that ambiguous phrases??and continuing?16?or vague language?
?a number of violent and harassing incidents?17?served as adequate notice. Due process will not
allow this; the notice must be suf?cient to allow an accused student ?a meaningful opportunity to
prepare.? Flaim, 418 F.3d at 638. And an opportunity is not meaningful where, as here, the
accused student is unaware of the factual bases on which he can be found responsible for a
misconduct violation.

Put in terms of the Mathews factors, the administrative burden of informing plaintiff
formally that the whole of his relationship with Roe could be properly considered was incredibly
low?a single telephone call, email, or letter to that effect would have suf?ced, even saying
perhaps as little as that all events and timeframes referenced in Roe?s narrative statement were
open to scrutiny. Instead, at almost every turn defendants conveyed the sense that plaintiff could
be disciplined, if at all, only for the events relating to October 27, 2013. By conveying a limited
scope of focus to plaintiff, defendants prejudiced plaintiff?s ability to mount an effective defense,
which increased the possibility of an erroneous outcome. Indeed, as the panel hearing and

subsequent decision of not responsible on all charges illustrates, context matters with respect to

plaintiff and Roe?s BDSM relationship. When plaintiff supplied context to the events of October

 

'5 Indeed, the Supreme Court has speci?cally noted that a student accused of misconduct should
?at least have the opportunity to characterize his conduct and put it in what he deems the proper
context.? Goss, 419 US. at 584.

'6 Aug. 20, 2014 Letter (P. Mem. Supp., Ex. 4).

'7 Roe Statement (D. Mem. Supp., Ex. 6).
18

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27, 2013, he was acquitted; the same result might obtain as to the other incidents for which
plaintiff had no notice he was subject to discipline.

To be clear, the conclusion reached here that plaintiff was not afforded adequate notice
should not be taken to suggest that the Constitution requires some particular formula of words or
speci?c means of communication. Rather, the conclusion here is simply that plaintiff received no
adequate notice at any point in the proceedings, whether before the panel hearing or after the
hearing, that events other than October 27, 2013, were in issue. Had such notice been afforded
after the panel hearing, but before the appeal to Ericson, or after Ericson?s decision, but before
the appeal to Blank-Godlove, such that plaintiff would still be given an opportunity to mount a
meaningful defense in at least one stage of proceedings, the notice might then have been
constitutionally adequate. But in fact plaintiff had no such notice. In any event, nothing in this
decision should be construed as imposing a rigid requirement of meticulously detailed notice at
the outset of a disciplinary proceeding. Instead, the dispositive principle as to notice on the
undisputed record as it exists here is simply this: Failure to provide clear and speci?c notice at
any point that might allow for a meaning?il defense is constitutionally insuf?cient to provide due
process.

2.

Quite apart from defendants? constitutionally inadequate notice given to plaintiff,
plaintiff also argues that his opportunity to be heard was rife with procedural error. To be sure,
plaintiff correctly does not challenge the adequacy of the opportunity to be heard that he received
at the panel hearing as to the events of October 27, 2013, as the record here re?ects that the
process was fully adequate in that respect. Rather, plaintiff aims his attack at the procedural

inadequacies that arose only after Roe took her appeal. Plaintiff?s attack hits the mark.

19

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Two of the most glaring procedural de?ciencies with Ericson?s and Blank-Godlove?s
handling of the appeals were the off-the-record and ex parte meetings Ericson and Blank-
Godlove had with plaintiffs accuser. As Dixon makes clear, where an accused student is not
present during proceedings against him, he should be oral or written report on the
facts to which each witness testi?es.? 294 F.2d at 159. Thus, although meeting with Roe ex parte
was not by itself constitutionally problematic, the failure to provide plaintiff, at minimum, a
report of what transpired during the ex parte meetings such that plaintiff could defend himself
against Roe?s allegations in these meetings fell short of constitutionally adequate due process.?8
Framed in terms of the Mathews factors, the low administrative burden of making some record of
the ex parte meetings and conveying that record to plaintiff could reasonably have reduced the
risk of error by putting plaintiff on notice of the full context of the accusations and evidence
against him and (ii) affording him an opportunity to respond to those accusations.

No less important is the fact that Ericson never truly afforded plaintiff a meaningful
opportunity to be heard in the appeal process. Dixon makes plain that an accused student must be
afforded an opportunity to present a defense, and a necessary corollary to this requirement is that
the opportunity must be meaningful. See Henson, 719 F.2d at 74 (noting the importance of ?the

opportunity to be heard by disinterested parties?). The undisputed record facts re?ect that, as of

 

'8 Other courts have similarly concluded that although ex parte meetings are not per se improper,
due process is not afforded when these ex parte meetings occur off the record. See, e. Univ. of
Tex. Med. Sch. at Houston v. Than, 901 926, 932-33 (Tex. 1995) (considering ?new
evidence? from an unrecorded ex parte inspection for which ?there is no record of what
transpired? violates due process); Newsome v. Batavia Local Sch. Dist, 842 F.2d 920, 927-28
(6th Cir. 1988) (presenting ?new evidence which had not been presented during the open hearing
at which [the accused] and his attorney were presen denied the accused of due process); Simer
v. Rios, 661 F.2d 655, 680 n.54 (7th Cir. 1981) (noting that whether ex parte contacts are
made part of the record is relevant to the due process inquiry); urey v. Temple Univ., 884 F.
Supp. 2d 223, 257 (ED. Pa. 2012) (lack of opportunity to hear an ex parte witness?s description
of events suggests a lack of integrity of the process and unfairness of the result).

20

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the time plaintiff was allowed to present his defense before Ericson, Ericson admits that he ?had
prejudged the case and decided to ?nd [plaintiff] responsible? for sexual assault. P. Mem. Supp.,
1} 37 (undisputed fact under Local Rule All the more troubling, Ericson had extensive ex
parte contact with Roe over the summer of 2014, yet Ericson assigned Roe?s appeal to himself
rather than to another of?cial with less actual (or even apparent) con?ict.19

To be sure, defendants correctly point out that there is a well-established ?presumption
that government of?cials can and will decide particular controversies conscientiously and fairly.?
Boston v. Webb, 783 F.2d 1163, 1166 (4th Cir. 1986).20 Thus, the Fourth Circuit has held that an
administrative of?cial does not ?cease[] to be an impartial decisionmaker simply by virtue of
having made a conditional decision. . . pending further developments in an administrative
process.? Morris v. City of Danville, 744 F.2d 1041, 1044 (4th Cir. 1984). As such, the mere fact

that Ericson determined based on his prior involvement in the investigation that plaintiff was

 

19 Although not dispositive here, it is worth noting that the appearance of impartiality is one of
the many facets of procedural fairness. That is, even in the absence of actual bias, the appearance
of bias or partiality erodes public trust in the integrity of government institutions. In this respect,
the mere fact that Ericson would assign himself an appeal of a case in which he had extensive
pre-hearing involvement is troubling, if not independently problematic as a constitutional matter.
Cf Caperton v. A.T. Massey Coal C0., 556 U.S. 868, 888 (2009) (noting, in the judicial context,
that a judge should avoid ?even the appearance of partiality. . .and the appearance of
impropriety?) (internal quotations omitted).

20 Defendants further argue that in the speci?c context of school discipline, ?due process is not
implicated simply because the disciplinarian observed the conduct, had some knowledge
regarding it, or even investigated prior to the hearing.? Jennings v. Wentzville R-IV Sch. Dist. 
397 F.3d 1118, 1125 (8th Cir. 2005). Although this point is well taken, it must be noted that the
level of impartiality required in the post-secondary context may differ from what due process
requires in elementary and secondary schools. After all, most elementary and secondary schools
have limited staff, so requiring absolute neutrality would impose signi?cant administrative
burdens on the school. Yet, defendants noted at oral argument that GMU has 5,000 employees
who could afford plaintiff a hearing. See Transcript of Oral Argument (Feb. 5, 2016), 38: 14-1 8.
Thus, the administrative burden on an institution like GMU to afford an unbiased decision-maker
is much lower than what an elementary or secondary school encounters, and an application of the
??exible? Mathews standard should be sensitive to that reality. See Mathews, 424 U.S. at 334.

21

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likely guilty is not a constitutionally signi?cant inadequacy. Yet, the record here discloses that
Ericson made up his mind so de?nitively that nothing plaintiff might have said at his meeting
with Ericson could have altered Ericson?s decision. See Ericson Dep., 200113-17. On this record,
Ericson had not made a preliminary determination ?pending further developments in an
administrative process.? Morris, 744 F.2d at 1044. Rather, Ericson ?rmly made up his mind
without ?rst hearing plaintiff?s defense. Although this might not rise to the level of bias on
Ericson?s behalf in a technical sense, it certainly indicates that plaintiff?s opportunity to be heard
by Ericson was not meaningful.

Nor does the fact that Blank-Godlove subsequently reviewed Ericson?s decision operate
to cure the constitutional de?ciencies in the process. The undisputed record re?ects that
Blank-Godlove similarly met ex parte and off-the-record with Roe such that plaintiff could not
respond to any of Roe?s allegations in the meeting and (ii) that Blank-Godlove limited her
review to those portions of the record on which Ericson relied. See Blank-Godlove Dep., 86:2-
88:11. In this respect, Blank-Godlove at best provided a perfunctory review of Ericson?s decision
and at worst was improperly in?uenced by ex parte communications. Because Blank-Godlove?s
formal decision letter does not disclose any analysis or explanation for her decision, it is
impossible now to determine which was the case.

A few additional irregularities bear mentioning. It is clear from the record that the
process afforded to plaintiff included certain deviations from own established policies
and procedures. For one, it does not appear that the hearing of?cer advising the panel was
involved in identifying a ?substantial procedural irregularity,? which is one of the prerequisites
for allowing an appeal. See Code at 17. Moreover, it is undisputed that Ericson violated guidance

from the US. Department of Education?s Of?ce for Civil Rights by informing Roe of his

22

Case Document 92 Filed 02/25/16 Page 23 of 45 Page D# 2250

decision to grant her appeal a full two days before informing plaintiff. P. Mem. Supp., 1} 38
(undisputed fact under Local Rule Although these procedural irregularities, standing
alone, would not rise to the level of a constitutional violation, ?the accumulation of mistakes? on
this record, including ?failures to comply? with internal policies, clearly ?resulted in a violation
of procedural due process.? urey, 884 F. Supp. 2d at 259 (?nding, based on a totality of errors
that included deviations from the university?s code, that a university disciplinary process fell
short of what due process required).

Defendants argue an important point, namely that it is insuf?cient to show that
constitutionally inadequate process was afforded; plaintiff must also show that the lack of
process caused prejudice. See Graham v. Mukasey, 519 F.3d 546, 549-500 (6th Cir. 2008). In
this respect, defendants argue that because plaintiff admitted to conduct that amounts to sexual
misconduct under the Code, Ericson and Blank-Godlove had a suf?cient basis from which to
?nd plaintiff responsible. Thus, defendants argue, plaintiff can show no prejudice because the
record clearly establishes his guilt.

Defendants? argument as to an admission is belied by the administrative record of the
appeal. At the outset, it is important to note that Code 2013.8.A, under which plaintiff was found
responsible for sexual misconduct, prohibits ?deliberate? touching or penetration without
consent. See Code at 5. Accordingly, any admission of liability must be an admission of both the
actus reus of touching or penetration and the mens rea of ?deliberate.? Plaintiff testi?ed before
the panel that, although there were instances in which he did not stop sexual contact when Roe
used the safe word (the actus reus), plaintiff ?would not just blatantly ignore and then continue?

with sex (the mens rea). See Hearing Transcript, In other words, plaintiff denied that

 

23

Case Document 92 Filed 02/25/16 Page 24 of 45 Page D# 2251

he acted deliberately. Although Roe?s evidence of the July 2014 telephone conversation
recording was to the contrary in that plaintiff responds that he did not stop when Roe used the
safe word because he ?felt like [she] could handle it,? plaintiff testi?ed at his panel hearing that
he was simply trying to be agreeable with Roe as part of his attempt to apologize. See id. at
74:16-75:18, 166:1-9. Thus, an impartial decision-maker could conclude that plaintiff?s
explanations were entirely credible and that he did not act with the requisite intent. Given this,
therefore, the authorities on which defendants rely are distinguishable. For example, in Watson
ex rel. Watson v. Beckel, 242 F.3d 1237, 1242 (10th Cir. 2001), the student charged with
misconduct admitted the fact in issue to the hearing board directly. The same was true in Boster
v. Philpot, 645 F. Supp. 798, 801 (D. Kan. 1986), in which high school students admitted their
misconduct directly to the school?s principal. Here, plaintiff denied the relevant fact?the mental
state of ?deliberate??before the panel and before Ericson. See Hearing Transcript, 80:19-20
(denial before the panel); Doe Dep., 140: 19-143 :4 (denial before Ericson).

Beyond the foregoing distinction between the instant case and defendants? cited
authorities, it is also relevant that the contexts are entirely different. That is, Watson and Easter
are both about high school students who committed straightforward offenses and incurred
punishments that were not life altering. In Watson, 242 F.3d at 1239, the student was expelled
a?er admitting to assaulting his roommate, and in Easter, 645 F. Supp. at 800, the students were
brie?y suspended after committing vandalism. Unlike high school students, who in a great many
states are entitled to public education, plaintiff has no such guarantee with respect to post-

secondary education. Thus, unlike high school students, plaintiff?s lost opportunity to continue

 

21 Plaintiff continues to contend here that any violation of the safe word rule in his relationship
with Roe was unintentional. See Doe Dep., 118:13-19.

24

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with his post-secondary education, coupled with the possibility that he may be unable to pursue
meaningful educational opportunities elsewhere while his name remains associated with sexual
misconduct, inevitably affects plaintiff?s professional prospects. Moreover, unlike the assault in
Watson and the vandalism in Boster, whether plaintiff committed sexual misconduct turns on
Roe?s consent, a complicated factual determination made all the more complex and nuanced by
the unorthodox rules of plaintiff and Roe?s BDSM relationship. And common sense suf?ces to
understand that an adjudication of responsibility for sexual misconduct carries a much more
powerful stigma than an adjudication of run-of-the-mill assault or vandalism. Given that the
facts, contexts, and consequences of the instant case are so different from those in Watson and
Easter, it is unsurprising that the requirements of due process are different here. Simply put,
defendants? actions here are not justi?ed by their contestable claim that plaintiff admitted guilt.
Plaintiff did not confess with such clarity that it is inescapable that any rational fact-?nder would
?nd him responsible for sexual misconduct regardless of the procedural protections in place.
This conclusion is suf?cient to establish that plaintiff was prejudiced by the constitutional
in?rmities in the process defendants provided to plaintiff here.
3.

In sum, the undisputed record facts disclose that plaintiff was deprived of reputational
liberty without due process of law. Throughout the disciplinary process, plaintiff was led to
believe that he was charged with conduct violations for a single incident, namely the events of
October 27, 2013. A?er his acquittal by a panel, plaintiff was subjected to an appellate process
before an administrator who deviated from internal policy by using an alleged procedural
irregularity to justify a de novo review of the facts, again without informing plaintiff of the scope

of the review. More problematically, the administrator conducting the de novo factual review

25

Case Document 92 Filed 02/25/16 Page 26 of 45 Page D# 2253

met ex parte and off the record with plaintiff?s accuser. This administrator then found plaintiff
liable and imposed sanctions upon him without providing a basis for the decision. When plaintiff
appealed this decision to a higher-level administrator, the second level of appellate review
proved to be little more than a rubber stamp of the decision below, focusing the inquiry on those
parts of the record that supported af?rming a ?nding of responsibility and the imposition of a
sanction and once again possibly considering matters presented ex parte and off the record by
plaintiffs accuser. It is worth noting also that certain key facts about the process afforded to
plaintiff are known only because of discovery in this action. For instance, only now is it clear
that the ?procedural irregularity? on which Ericson relied to justify the appeal was the initial
panel?s failure to consider statements by plainti?~ concerning events outside of the October 27,
2013 incident. Moreover, only now is it known that Ericson?s review was de novo, such that
Ericson substituted his own judgment for that of the initial panel. In this respect, it is clear that
the failure to explain the disciplinary decision concealed other more severe procedural
de?ciencies, thus compounding the errors.

The narrowness of the conclusion reached here warrants emphasis. The procedural
inadequacy on this record was not the failure to provide a speci?c form of notice or the failure to
structure proceedings in a particular manner. Rather, the conclusion reached here is simply that
due process is violated where a state-run university fails to provide notice of the full scope of
the factual allegations in issue in a disciplinary proceeding, (ii) deviates from its own procedures
in permitting an appeal of a ?nding of no responsibility, conducts a de novo administrative
review of the charges without affording an adequate opportunity to mount an effective defense,
including by holding off-the-record and ex parte meetings with the accuser, and (iv) fails to

provide a basis for its decision such that meaning?il review can occur. This conclusion is

26

Case Document 92 Filed 02/25/16 Page 27 of 45 Page D# 2254

consistent with Dixon, which requires speci?c notice of the charges, a meaningful opportunity to
present a defense, and notice of results and ?ndings. See 294 F.2d at 158-59. Whether the
absence of any one of the foregoing identi?ed procedural errors would result in a different
outcome, namely a ?nding of constitutionally adequate process, need not be reached or decided.
Accordingly, the result reached here should not be understood as requiring a state-run university
to provide any speci?c form of notice, (ii) set of internal rules, method of conducting
hearings, or (iv) form of a ?nal decision. Rather, the procedural violation here was the
compounding of the absence of speci?c notice as to the full scope of the events in issue, the clear
deviation from established policies, the failure to provide adequate assurances of proper
decision-making on appeal, and the absence of a ?nal decision that permits meaningful review.

A ?nal point merits mention. In the employment discrimination context, it is now well
settled that federal courts should not sit ?as a kind of super-personnel department weighing the
prudence of employment decisions.? DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir.
1998). The same is no less true in the context of reviewing university discipline; the question is
not one of prudence, but one of lawfulness. Defendants have painted a picture of plaintiff
portraying him as disturbed, depraved, and dangerous, such that it is good that he was expelled.
Whether this is true is immaterial to the matter at hand, as the Due Process Clause of the
Fourteenth Amendment is not concerned with ends but with means. In other words, it may well
be that plaintiff deserves to be expelled or otherwise sanctioned for certain behavior, but the
Constitution requires that if behavior is to be sanctioned, then the state must ensure the
soundness of the decision it reaches as the situation requires. At almost every critical turn, GMU
had low-cost and low-burden options at its disposal that would have vindicated plaintiff?s due

process right. With adequate notice, an appellate reviewer who would hear plaintiff out with an

27

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open mind, and the avoidance of off-the-record ex parte meetings with the accuser, the outcome
here might well be different. But where the accused has this much at stake, as in the context of
university discipline of this magnitude, the compounding of errors that could easily and cheaply
have been avoided renders the risk of unfairness ?intolerany high.? Withrow v. Larkin, 421 US.
35, 58 (1975) (observing that due process is violated where the ?facts and circumstances? of a
particular case demonstrate that ?the risk of unfairness is intolerably high?).

Accordingly, on Count I plaintiff?s motion for summary judgment must be granted and
defendants? motion for summary judgment denied.

B.

Because defendants deprived plaintiff of a protected liberty interest without due process,
analysis now turns to the issue of a remedy for this improper deprivation. Plaintiff proposes that
defendants should be enjoined from enforcing their sanction against plaintiff, (ii) should be
enjoined from maintaining any record that plaintiff committed misconduct with respect to Roe?s
allegations, should be enjoined from imposing any sanction or punishment for any conduct
occurring, or allegedly occurring, before the date of judgment, and (iv) should be required to
reinstate plaintiff as a student in good standing at GMU. Defendants, in turn, propose that
plaintiff should be afforded at most a new hearing. Neither party?s position in this respect has
been adequately briefed or argued, and it is clear that such brie?ng would aid the decisional
process. At this point, however, a few clear principles merit mention to guide the brie?ng.

Any remedy will be equitable in nature, as each defendant is named in his or her of?cial
capacity. And, as the Fourth Circuit has explained, ?[o]ne of the glories of equity jurisprudence
is that it is not bound by the strict rules of the common law, but can mold its decrees to do

justice amid all the vicissitudes and intricacies of life.? Bowen v. Hockley, 71 F.2d 781, 786 (4th

28

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Cir. 1934). Thus, it is clear that a remedy must be shaped to do justice on the speci?c facts of the
instant case. Accordingly, the recognition that defendants did not afford constitutionally
adequate process to plaintiff does not necessarily require turning a blind to 
representation that in the judgment of administrators plaintiff poses a threat to the GMU
community based on the totality of his actions and disciplinary violations. It may well not do
justice to force GMU to place its community of students, faculty, and staff at potential risk if
plaintiff did in fact commit misconduct simply because ?the constable has blundered? in the ?rst
round of process. New York v. Defore, 242 NY. 3, 21 (1926) (Cardozo, J.) (famously criticizing
the exclusionary rule). Plaintiff was expelled on serious charges, and serious charges require
careful attention to the adequacy of the process, but defendants? failure to vindicate plaintiff?s
rights in the ?rst instance does not necessarily require a judicial order preventing GMU from
vindicating its community?s right to a safe environment by enjoining the further adjudication of
these serious misconduct charges.

At this stage, one thing is perfectly clear: plaintiff was expelled because of alleged
sexual misconduct occurring on dates other than October 27, 2013, and (ii) a text message sent in
March 2014 threatening suicide, allegations that were not adjudicated through a constitutionally
adequate process. Accordingly, there can be no doubt that it is appropriate here to vacate the
decisions of defendants Blank-Godlove and Ericson and to order that plaintiff be reinstated as a

GMU student in good standing.22 Indeed, defendants do not appear to contest this. Thus, the key

 

22 Because such reinstatement may require action or approval by defendant Cabrera, he may be a
necessary party to this litigation even though he was not personally involved in plaintiff?s
disciplinary proceedings. See Stroud v. Benson, 254 F.2d 448, 452 (4th Cir. 1958) (?Equally
certain and con?rmed by authority is the rule that if the judgment or decree granting the relief
sought will require the superior of?cer to take action, either directly or through a subordinate, he
is an indispensable party?). Yet, even if Cabrera is necessary his dismissal may be appropriate if

29

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questions in crafting a remedy appear to be whether GMU should be allowed to pursue a new
round of disciplinary hearings, (ii) if so, what allegations occurring before the date of judgment
should be open for adjudication, and whether there should be any restrictions on the means
by which the new disciplinary hearings, if any, are to be carried out, enjoining Ericson and
Blank-Godlove from participating.

In sum, it is clear that plaintiff must be reinstated as a student in good standing at GMU
at least until new process is afforded, if such process is allowed. But the issues identi?ed here?
and perhaps other issues that the parties deem relevant?would bene?t from further brie?ng.
Accordingly, an Order will issue setting a brie?ng schedule on the issue of an appropriate
remedy.

C.

The remaining count at issue on the parties? cross-motions for summary judgment is
Count IV, in which plaintiff alleges that defendants infringed on his freedom of speech.23
Speci?cally, plaintiff was sanctioned, in part, for sending a text message to Roe in which
plaintiff said that if Roe did not respond, plaintiff would obtain a gun and shoot himself in the

chest. Ericson and Blank-Godlove (but not the hearing panel) found this text message to be a

 

proper relief can be afforded without his being named, perhaps under the All Writs Act, 28
U.S.C. 1651(a). See United States v. N. Y. Tel. C0., 434 US. 159, 174 (holding that an innocent
third party ?could. . .be perrnissibly compelled? to assist where the third party is not ?far removed
from the underlying controversy?). The parties should address whether relief can be afforded if
Cabrera were dismissed.

23 Because plaintiff challenges the action of Virginia of?cials, his constitutional claims arise
under the Fourteenth Amendment, which provides that state shall. . .deprive any person of
life, liberty, or property, without due process of law.? US. Const., amend. XIV, 1. The
Supreme Court has long recognized that the freedom of speech is ?among the fundamental
personal rights and ?liberties? protected by the due process clause of the Fourteenth Amendment
from impairment by the States.? Gitlow v. New York, 268 US. 652, 666 (1925).

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to cause injury, distress, or emotional or physical discomfort? under
Code 2013.9.B. The question here is whether this determination and the subsequent imposition
of punishment were consistent with the Constitution.

It should be noted at the outset that resolution of the free speech question is arguably
moot here in light of the conclusion that defendants deprived plaintiff of liberty without due
process of law. Indeed, as the discussion of a remedy in Part II-B, supra, illustrates, plaintiff is
entitled to have his ?nding of responsibility vacated on procedural grounds. Because the remedy
for the due process violation affords the same relief sought under Count IV, namely the vacating
of the decision of responsibility and reinstatement as a student in good standing, resolution of the
free speech question would not afford any additional meaningful relief, particularly because
plaintiff does not seek a ?nding that Code 2013.9.B is facially unconstitutional. Indeed, a leading
treatise notes that an ?unspoken consideration[]? in applying the mootness doctrine is ?the
importance of the underlying legal issues.? 13C Wright Miller, Federal Practice and Procedure
3533.3.1 at 83 (3d ed. 2008). In this respect, important to defer decision until a
pressing need for an available and effective remedy justi?es resolution of a dif?cult question.?
Id. Where, as here, a plaintiff is entitled to reinstatement in good standing on procedural grounds
alone, there is no ?pressing need? for a remedy on the basis of a substantive constitutional
violation as well. See id. Yet, for the sake of completeness the free speech issue is addressed, but
only as an alternative ground for relief.

Analysis properly begins with the text of the provision under which plaintiff was found

responsible for misconduct. Code 2013.9.B provides, in relevant part:24

 

2? See Code at 5-6.
31

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Acts of misconduct include. hostile, threatening, or intimidating behavior

that by its very nature would be interpreted by a reasonable person to threaten or

endanger the health, safety or well-being of another. Examples for such behavior

may directly or 

or written communication in a manner likely to cause causes [sic] injury, distress,

or emotional or physical discomfort is also prohibited [sic].

The ?rst half of the provision cited above clearly evidences an intent to ban ?true
threats,? which constitute a well-settled exception to the freedom of speech protected by the First
and Fourteenth Amendments. See Virginia v. Black, 538 US. 343, 359 (2003). Indeed, the ?rst
half of the provision in issue is tailored to be entirely consistent with the Fourth Circuit?s law on
true threats, in that Code 2013.9 prohibits only behavior (including speech)25 that ?an ordinary
reasonable recipient who is familiar with the interpret as a threat of injury.?
United States v. White, 670 F.3d 498, 507 (4th Cir. 2012).

The constitutional problem presented here arises from Code 2013.9.B, which ?also
inter alia, electronic communication in a manner likely to
cause causes [sic] injury, distress, or emotional or physical discomfort.? There can be no doubt
that this language is susceptible to an interpretation that ?[pen]alizes a substantial amount of
protected expressive activity,? e. offensive speech. United States v. Williams, 553 US. 258,
297 (2008). Indeed, Code 2013.9.B?s plain language imposes no ?reasonable person? limitation
and covers such vague effects as ?distress? or In that respect, under a
reasonable interpretation of Code 2013.9.B, the provision penalizes speech that an individual
?nds offensive or disagreeable. As defendant Ericson expressed in his deposition, in his view

Code 2013.9.B is broad enough to permit disciplinary action against a student who expresses a

racist View that African-Americans should not be permitted to enroll at GMU and thereby upsets

 

25 Cf McCauley v. Univ. of the V.I., 618 F.3d 232, 250 (3d Cir. 2010) (?Speech protected by the
First Amendment is a type of ?conduct,? as it is a personal 

32

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an African-American student. See Ericson Dep., 173:3-15. Yet, it is well established that racist
speech, even on a university campus, is constitutionally protected. See, e. IOTA XI Chapter of
Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 393 (4th Cir. 1993) (recognizing
that despite a university?s ?responsibility? to maintain ?an educational environment free of
discrimination and racism,? such goals should be accomplished ?in some fashion other than
silencing speech on the basis of its viewpoint?).

Although Code 2013.9.B?s plain language reaches beyond the true threats exception,
defendants alternatively argue that the restriction is justi?able in light of Tinker v. Des Moines
Indep. Sch. Dist, 393 U.S. 503 (1969).26 Under Tinker, 393 US. at 513, a public school may
proscribe speech without running afoul of the constitutional right to free speech if necessary to
protect students or to support the educational mission. Thus, public school of?cials may suppress
student speech if they ?reasonably conclude that it will ?materially and substantially disrupt the
work and discipline of the school.?? Morse v. Frederick, 551 US. 393, 403 (2007) (quoting
Tinker, 393 US. at 513). As the Third Circuit has persuasively illuminated, the exact manner in
which Tinker applies in the university setting ?is dif?cult to explain? and likely evades ?any
broad categorical rules.? McCauley, 618 F.3d at 247. Instead, the teachings of Tinker and its

progeny in the elementary and secondary school settings should be ?scrutinized carefully? before

 

26 At the motion to dismiss stage, the question whether Tinker applies in this case was reserved
pending a more developed factual record. See Doe, F. Supp. 3d 2015 WL 5553855, at
*14. This decision assumes, arguendo, that Tinker applies in the context of post-secondary
education. Although the Fourth Circuit has cited Tinker as authority in post-secondary education
speech cases, the Fourth Circuit has not squarely addressed whether and to what extent Tinker
applies in such contexts. And moreover, the Supreme Court?s post-Tinker jurisprudence casts
some doubt on whether Tinker and its progeny apply to post-secondary schools. See, e. Healy
v. James, 408 US. 169, 180 (1972) precedents of this Court leave no room for the view
that, because of the acknowledged need for order, First Amendment protections should apply
with less force on college campuses than in the community at large?).

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being applied to universities, ?with an emphasis on the underlying reasoning of the rule to be
applied.? Id. This sensible conclusion recognizes the many differences between post-secondary
institutions on the one hand and elementary and secondary schools on the other; that which
might ?materially and substantially disrupt? an elementary or secondary school could be
fundamental to universities.

To understand these material differences, an appropriate starting place is the Fourth
Circuit?s characterization of the unique role of universities in society. Speci?cally, the Fourth
Circuit has observed:

[I]ndividual only be attained by encouraging the
individual to think independently. Independent thinking, in turn, can only be
developed through constant questioning, the expression of new, untried and
heterodox beliefs and the willingness to tolerate experimentation?in sum, the
traditions upon which the ?rst amendment rests. It follows that our schools,
particularly our universities, must serve as great bazaars of ideas where the heavy
hand of regulation has little place. Like other bazaars, they may seem rude,
cacophonous, even distasteful at times; but they are necessary predicates to the
more orderly market of ideas in our public life.

Kim v. Coppin State Coll., 662 F.2d 1055, 1064 (4th Cir. 1981). In short, controversial and
sometimes offensive ideas and viewpoints are central to the educational mission of universities.
It follows that university students cannot thrive without a certain thickness of skin that allows
them to engage with expressions that might cause ?distress? or ?discomfort,? which is precisely
the type of speech that Code 2013.9.B seeks to suppress. The coddling of the nation?s young
adults by proscribing any expression on a university campus that is likely to be distressing or
discomforting does not protect ?the the school;? such rules frustrate the mission of the

university. See Morse, 551 US. at 403 (noting that schools can proscribe speech that disrupts a

school?s educational goals); Kim, 662 F.2d at 1064 (identifying the goals of universities).

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In Sword v. Fox, 446 F.2d 1091, 1097 (4th Cir. 1971), the Fourth Circuit, relying in part
on Tinker, articulated the criteria for evaluating the reasonableness of regulations on university
speech. Speci?cally, such regulations must ?measurably contribute[] to the maintenance of
order and decorum,? (ii) be ?calculated to prevent interference with ?the normal activities of the
University? or obstruction of its ?mction ?to impart learning and to advance the boundaries of
knowledge,?? or be ?important in maintaining ?order? and ?normal operations?.? Id. (some
internal quotations omitted). Importantly, the Fourth Circuit?s appeal to ?order? was called into
question the following year, when the Supreme Court held in Healy, 408 US. at 180, that ?the
acknowledged need for order? does not mean that ?First Amendment protections should apply
with less force on college campuses than in the community at large.? Thus, analysis properly
focuses on the extent to which a regulation prevents interference with the functions of the
university. In engaging in the required analysis, it is help?Jl to bear in mind, as the Third Circuit
has articulated, the unique aspects of post-secondary institutions that set them apart from
elementary and secondary schools. For instance, there are ?differing pedagogical goals? for each;
post-secondary institutions do not operate in loco parentis; the disciplinary needs of post-
secondary institutions differ; post-secondary students are adults with greater maturity; and
?many university students reside on campus and thus are subject to university rules at almost all
times.? McCauley, 618 F.3d at 242-43.

Viewed against the backdrop of these principles, Code 2013.9.B is similar to the
university speech code provision held unconstitutionally overbroad in McCauley. There, the
court concluded that a policy restricting speech that may ?frighten, demean, degrade, or
disgrace,? although it encompassed certain speech that would qualify as unprotected ?ghting

words, also ?encompass[ed] much more speech than that which could reasonably be found to

35

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cause a threat of substantial disruption.? McCauley v. Univ. of the V.I., 52 V.I. 816, 849 (D.V.I.
2009). Like the provision struck down in McCauley, Code 2013.9.B purports to cover all student
speech?regardless whether it occurs on campus?and uses entirely subjective standards such as
?distress.? Cf. id. at 847. As the McCauley court correctly noted, ?some people may feel
[distressed] by a comment that other students ?nd perfectly acceptable.? Id. Accordingly, the
natural incentive under a regime like that created by Code 2013.9.B is to speak less for fear of
?distress[ing]? or ?discomfort[ing]? another.

It is untenable to suggest that a regulation as broad as Code 2013.9.B is necessary to
?prevent interference? with the normal operations of a university. See Sword, 446 F.2d at 1097.
Nor can defendants proffer a justi?cation for a regulation that sweeps so broadly. Code 2013.9.B
does not advance the university?s pedagogical goal of serving as a ?great bazaar[] of ideas;?
rather, it is likely to sti?e the expression of unpopular opinions for fear that another will become
?distress[ed]? or See Kim, 662 F.2d at 1064. In essence, Code 2013.9.B
attempts to impose a civility code upon university students?students who are adults with full
rights of participation in civic life, for whom the university does not stand in loco parentis, and
who can never escape ?the heavy hand of a regulation? that purports to apply wherever they
speak. Id. As the Second Circuit has observed, even in elementary and secondary schools the
administration?s power to ?teach students the boundaries of socially appropriate behavior? limits
the punishment of ?threatening? speech to instances that ?occur[] publicly at school or a school-
related event.? See Cox v. Warwick Valley Cent. Sch. Dist, 654 F.3d 267, 273 (2d Cir. 2011)
(internal quotations and alterations omitted). A university?s power to promote ?socially
appropriate behavior? among its students, who are adults expected to shape society, is surely

even weaker. Thus, it is clear that Code 2013.9.B, if given a meaning in accord with its plain

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language, rises to the level of an unreasonable in?'ingement of the freedom of speech wholly
unrelated to the university?s interest in performing its educational mission. See Sword, 446 F.2d
at 1096-97.

Of course, the fact that a university speech code arguably reaches substantial
constitutionally protected speech is not dispositive as to whether the provision is
unconstitutional. Rather, such restrictions are only unconstitutional if they are actually construed
to reach substantial protected speech. And in this regard, the Fourth Circuit has made clear that a
court ?will not strike down a [regulation] as facially overbroad if its constitutionality can be
preserved through a ?limiting of ?removing the seeming threat or
deterrence to constitutionally protected expression.?? Legend Night Club v. Miller, 637 F.3d 291,
300 (4th Cir. 2011) (internal alterations omitted). Where, as here, the regulation is a state
enactment, any ?reasonable and readily apparent? limiting construction that follows from the
?text or other source ?must be resorted to.? See id. at 300-01. Such a limiting
construction is readily apparent with respect to Code 2013.9.B. By the plain language of Code
2013.9.B, the communications proscribed are ?[e]xamples? of behavior prohibited as a true
threat, i. speech ?that by its very nature would be interpreted by a reasonable person to
threaten or endanger the health, safety or well-being of another.? See Code at 5-6; White, 670
F.3d at 507 (de?ning a true threat as communication that ?an ordinary reasonable recipient who
is familiar with the interpret as a threat of injury?). Thus, it is fully appropriate
here to construe Code 2013.9.B as prohibiting only true threats or ?ghting words,27 both

categories of speech that fall beyond the freedom of speech and both of which could be covered

 

27 Fighting words, like true threats, are ?those [words] which by their very utterance in?ict injury
or tend to incite an immediate breach of the peace.? Chaplinsky v. New Hampshire, 315 US.
568, 572 (1942); see also White, 670 F.3d at 507 (comparing true threats to ?ghting words).

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under the broad language of Code 2013.9.B. Plaintiffs March 2014 text message was neither;
plaintiff did not threaten harm to another,28 nor would his message ?tend to incite an immediate
breach of the peace.? Chaplinsky, 315 US. at 572.

Defendants appear to argue that quite apart from the fact that the March 2014 text
message does not fall within the proper reach of Code 2013.9.B, it constitutes speech that GMU
administrators could punish on an ad hoc basis because they could ?reasonably conclude? that it



would materially and substantially disrupt the work and discipline of the school.?? Morse, 551
US. at 403 (quoting Tinker, 393 US. at 513). In defendants? view, regardless whether the speech
occurred on or off campus, the threat of committing suicide via ?rearm implicates 
interest in the order, safety, and well-being of its students. But that is not this case. Rather, the
record here re?ects that plaintiff was sanctioned for the March 2014 text message not because he
posed harm to himself or to others, but because he intended to cause Roe distress. See Ericson
Dep., 164:4-165:5. In this sense, defendants? invocation of Tinker and the grim shadow cast by
school shootings amounts to nothing more than a post hoc justi?cation for the action taken here
with respect to the March 2014 text message. Simply put, Tinker does not justify the ad hoc
imposition of punishment on an adult university student for speech that was privately
communicated simply because the speaking party intended to cause distress and the receiving
party might become distressed. See Sypniewski v. Warren Hills Regional Bd. of Educ, 307 F.3d

243, 265 (3d Cir. 2002) (explaining that ?disruption for purposes of Tinker? requires more than

?discomfort and unpleasantness?). And where the state acts as sovereign rather than as educator,

 

28 The authorities on which defendants rely to characterize plaintiff?s speech as a true threat are
distinguishable on the ground that these cases addressed threats of murder as well as suicide. See
generally Riehm v. Engelking, 538 F.3d 952 (8th Cir. 2008); La Vine v. Blaine Sch. Dist., 257
F.3d 981 (9th Cir. 2001).

38

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i. where Tinker does not apply, the same result obtains, as it is well-settled that the state cannot
penalize speech within the scope of the freedom of speech simply because the communicative
impact is designed to cause certain harm.29

This is not to say that university administrators are powerless to act when a threat of
suicide by ?rearm comes to their attention. On this issue, the Second Circuit?s Cox decision is
instructive. In Cox, a middle school administrator sequestered a student for several hours a?er
the student submitted an essay containing a ?casual description of illegal activity, violence, and
suicide.? 654 F.3d at 270. The purpose of this sequestration was to determine whether the student
?posed an imminent threat to himself or others? and ?whether he should be disciplined for his
essay.? Id. at 271. In the student?s lawsuit for free speech retaliation, the Second Circuit did not
reach or decide whether the essay was protected speech, instead concluding that the
administrator?s actions in separating the offending student from other students while determining
whether a threat existed was not an adverse action. See id. at 273. Cox is instructive here for two
points. First, dicta in Cox suggests that the power under Tinker to punish ?threatening? speech
that is private and divorced from school-related activities is circumscribed. See id. Second, Cox
makes clear that school administrators have tools at their diSposal to ful?ll their obligation to

ensure school safety that fall short of punishing empty threats of suicide. See id. at 274 

school administrator must be able to react to ambiguous student speech by temporarily removing

 

29 Cf, Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53 (1988) (in the intentional in?iction
of emotional distress context, rejecting the argument that where ?the intent to cause injury is the
gravamen? of the speech ?the State?s interest in preventing emotional harm simply outweighs
whatever interest a speaker may have? and reiterating that ?even when a speaker. . .is motivated
by hatred or ill will his expression [is] protected?); NAACP v. Claiborne Hardware, 458 U.S.
886, 928 (1982) (in the interference with business relations context, ?emotionally charged
rhetoric. . . [that] do[es] not incite lawless action. . .must be regarded as protected speech?); Cohen
v. California, 403 U.S. 15, 26 (1971) (rejecting the view that the Constitution permits states to
punish speech because of its ?emotive function?).

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the student from potential danger (to himself and others) until it can be determined whether the
speech represents a real threat to school safety and student learning?). And as the Fourth Circuit
has expressed, a university should not ?silenc[e] speech? where it can ?accomplish[] its goals in
some [other] fashion.? IOTA XI Chapter of Sigma Chi Fraternity, 993 F.2d at 393.

In short, Cox is illustrative of the tools universities have at their disposal, consistent with
Tinker, to address communications dealing with potential suicides. Plaintiff?s text message, once
brought to attention, justi?ed intervention by GMU administrators to investigate whether
a threat was real and to separate plaintiff from other students until a determination was made.
Thus, consistent with the Fourteenth Amendment, public university administrators may intervene
as necessary to protect their students and of?cials, and in appropriate situations punishment may
follow. Yet, what a public university administrator may not do, as occurred here, is punish the
speaker simply because he intended to cause distress and the recipient found the message
distressing or may have found it distressing.30

In sum, defendants? imposition of a sanction on plaintiff for the March 2014 text message
was improper; the text message was not a true threat, ?ghting words, or communication properly
proscribed consistent with Tinker. On this record, plaintiff was punished for the text message

because of its intended emotive effect on the recipient. That was in error. Accordingly, plaintiff?s

 

30 Indeed, imagine if a university student with actual suicidal tendencies reached out to a friend,
classmate, or residence hall advisor about his suicidal thoughts, thereby placing that person in
distress. Defendants? theory places such students in an unconscionable bind: keep their mental
health problems to themselves and possibly forgo help or risk expulsion for having caused
distress to another. If university of?cials are truly concerned about the possibility of school
shootings, as defendants here no doubt are, a regime that exposes students to punishment for
expressing suicidal thoughts might be entirely counterproductive to the goal of identifying
students who pose a potential threat to themselves or others.

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motion for summary judgment on Count IV must be granted and defendants? motion for
summary judgment on Count IV must be denied.


When plaintiff initiated this lawsuit, he asserted a claim for a violation of his substantive
due process rights, alleging that ?Ericson ?disregarded? the BDSM context of the relationship and
how it ?affected matters like consent and related issues? and treated a BDSM relationship as ?per
se sexual misconduct.?? Doe, F. Supp. 3d 2015 WL 5553855, at *10. This, plaintiff
argued, constituted a violation of plaintiff?s right to sexual liberty as protected under Lawrence v.
Texas, 539 U.S. 558, 578 (2003), which held that a state could not criminalize intimate sexual
conduct between consenting adults.31 Defendants? motion to dismiss this claim was granted
because plaintiff?s allegations were construed as complaints about executive action, which are
governed by a ?shocks the conscience? analysis. See Doe, F. Supp. 3d 2015 WL 5553855,
at *11 (citing, inter alia, Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (holding that
?the cognizable level of executive abuse of power [is] that which shocks the conscience?)).
Because defendants? actions, as alleged, did not ?shock the conscience,? plaintiff failed to state a
claim for an infringement of substantive due process.

Plaintiff moved to reconsider the dismissal of his substantive due process claim, arguing
that Code of Conduct is a legislative enactment that treats BDSM relationships as sexual
misconduct per se. Thus, plaintiff argued that the appropriate analytical framework was the strict

scrutiny analysis employed where a legislative enactment infringes on a constitutionally

 

3 1 This characterization of Lawrence articulates both the breadth and limitations of its holding.
See Obergefell v. Hodges, 135 S. Ct. 2584, 2598-99 (2015) (citing Lawrence as an ?instructive
precedent? for the ?principle of broad[] reach? that there are ?constitutional liberties in [the]
intimate bond? of marriage); Lawrence, 539 U.S. at 578 (noting that the decision does not
invalidate laws against ?public conduct or prostitution?).

41

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protected ?mdamental liberty interest. See, Kerry v. Din, 135 S. Ct. 2128, 2133 (2015)
(plurality opinion) (noting that the Due Process Clause of the Fourteenth Amendment protects
certain ??mdamental? liberty interests to the extent that these liberties can be limited only
through a regulation that is narrowly tailored to serve a compelling state interest). Although
plaintiff? motion to reconsider was disposed on other grounds, it is appropriate here to present
an additional rationale as to why the Due Process Clause of the Fourteenth Amendment does not
prohibit the regulation of BDSM conduct.

The Supreme Court?s cases recognizing judicially-enforceable fundamental liberty
interests disclose two equal but distinct lines of precedent with respect to the appropriate
methodology to be used when considering whether a liberty is fundamental and therefore
protected as judicially enforceable under the Fourteenth Amendment. One approach is a common
law methodology articulated by Justice Harlan in dissent in Poe v. Ullman, 367 US. 497, 543
(1961), and later embraced in cases such as Planned Parenthood of Se. Pa. v. Casey, 505 US.
833, 848-49 (1992), and Obergefell, 135 S. Ct. at 2598-99. This methodology balances private
interests against social needs by reference to, but not bound by, historical practice. In contrast, a
more restrictive and historical-focused approach was articulated in Washington v. Glucksberg,
521 US. 702, 721 (1997), in which the Supreme Court held that a judicially enforceable implied
?lndamental liberty interest must be deeply rooted in the nation?s history and traditions and
(ii) implicit in the concept of ordered liberty.

Under the Glucksberg mode of analysis, plaintiff?s asserted fundamental liberty interest
in engaging in BDSM sexual activity is clearly not protected as judicially enforceable under the

Fourteenth Amendment.32 De?ned with speci?city and cast as a negative liberty, as Glucksberg

 

42

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counsels, plaintiff?s asserted liberty is a freedom from state regulation of consensual BDSM
sexual activity. There is no basis to conclude that tying up a willing submissive sex partner and
subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the
nation?s history and traditions or implicit in the concept of ordered liberty.

Perhaps in recognition of the futility of his argument under Glucksberg, plaintiff bases his
fundamental liberty interest argument on Lawrence, a case in the Justice Harlan common law
tradition. In order to understand fully the methodology employed under this line of cases,
analysis properly begins by considering the most recent of the Supreme Court?s decisions in this
line, namely Obergefell. Importantly, Obergefell explicitly establishes that the Due Process and
Equal Protection Clauses are ?interlocking? and each ?leads to a stronger understanding of the
other.? See 135 S. Ct. at 2603-04. In other words, Obergefell highlights that the decision to
recognize an implied fundamental liberty interest as judicially enforceable turns, in part, on
whether the liberty interest at issue has historically been denied on the basis of impermissible
animus or, alternatively, on a legitimate basis aimed at protecting a vulnerable group. See, e. 

id. at 2596.33 Lawrence is not to the contrary. There, the Supreme Court reasoned that a statute

 

32 For purposes of substantive due process analysis, the pertinent question is whether a liberty is
judicially enforceable rather than whether it exists in the abstract. Indeed, the Ninth Amendment
con?rms the possibility that liberty interests not clearly articulated in the Constitution exist.

See U.S. Const. amend. IX (?The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people?). Yet, as the late Justice Scalia
once persuasively explained, ?the Constitution?s refusal to ?deny or disparage? other rights is far
removed from affirming any one of them, and even further removed from authorizing judges to
identify what they might be, and to enforce the judges? list against laws duly enacted by the
people.? Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, ., dissenting). In this respect, ?the
commitment to representative democracy set forth in the founding documents? con?rms that the
appropriate venues in which to argue ?that the State has no power to interfere with? certain
liberties are ?legislative chambers or. . .electoral campaigns.? Id. at 91-92 (Scalia, ., dissenting).

33 Obergefell?s discussion of the interlocking nature of liberty and equality explains?or is at
least consistent with?the Supreme Court?s willingness to recognize constitutionally protected

43

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criminalizing homosexual sodomy violated a judicially enforceable implied ?indamental liberty
interest in sexual intimacy because of the history of animus towards homosexuals. See Lawrence,
539 US. at 571 (noting that ?powerful homosexual conduct as immoral? but
that this does not permit ?the majority [to] use the power of the State to enforce these views on
the whole society through the operation of the criminal law?). Indeed, the Supreme Court has
since noted that Lawrence ?acknowledged, and sought to remedy, the continuing inequality that
resulted ?om laws making intimacy in the lives of gays and lesbians a crime against the State?
and ?therefore drew upon principles of liberty and equality to de?ne and protect the rights of
gays and lesbians.? Obergefell, 135 S. Ct. at 2604.

Under the Lawrence methodology, history and tradition continue to inform the analysis.
See id. at 2598 (?History and tradition guide and discipline [the implied fundamental liberty
interests] inquiry but do not set its outer boundaries?). Yet, courts must consider not only the
history and tradition of freedom to engage in certain conduct, but also any history and tradition
of impermissible animus that motivates the legislative restriction on the freedom in order to
weigh with appropriate rigor whether the government?s interest in limiting some liberty is a
justi?able use of state power or an arbitrary abuse of that power. In this respect, the conclusion

reached here under the Glucksberg line of reasoning that there is no deeply rooted history or

 

and judicially enforceable implied fundamental liberty interests when the person asserting the
right has been denied a liberty based on animus or moral condemnation, but not when the denial
is rooted in a desire to protect the vulnerable. See, e. Glucksberg, 521 US. at 731 (declining to
enforce a fundamental liberty interest in obtaining physician-assisted suicide in part due to the
vulnerability of certain patients); Cruzan v. Din, M0. Dep ?t of Health, 497 US. 261, 281 (1990)
(similar). Thus, the Supreme Court has made it plain that the government can restrict certain
freedoms as necessary to protect or otherwise to ?irther permissible interests. See id. also, e. 
Casey, 505 US. at 874-75 (plurality opinion) (employing an ?undue burden? test in the context
of the fundamental liberty interest in procuring an abortion because ?the State?s interest in the
potential life within the woman? justi?es certain regulations).

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tradition of BDSM sexual activity remains relevant and important to the analysis. Also relevant
and important to the analysis is the absence of a history of impermissible animus as the basis for
the restriction at issue here. Sexual activity that involves binding and gagging or the use of
physical force such as spanking or choking poses certain inherent risks to personal safety not
present in more traditional types of sexual activity. Thus, as in Cruzan and Glucksberg, a
legislative restriction on BDSM activity is justifiable by reference to the state?s interest in the
protection of vulnerable persons, sexual partners placed in situations with an elevated risk of
physical harm. Accordingly, consistent with the logic of Lawrence, plaintiff has no
constitutionally protected and judicially enforceable fundamental liberty interest under the Due
Process Clause of the Fourteenth Amendment to engage in BDSM sexual activity.
IV.

For the foregoing reasons, plaintiff?s motion for summary judgment must be granted and
defendants? motion for summary judgment must be denied. Because the parties must address the
issue of a proper remedy before a ?nal order can issue, it is appropriate to set a schedule for the
brie?ng of the remedy issue.

An appropriate order will issue.

Alexandria, Virginia
February 25, 2016

    
 

T. S. Ellis, 111
United States istrict Judge

45