Expelled George Mason student wins reinstatement

A male student expelled for sexual misconduct and a threat to harm himself has won his civil rights suit against George Mason University and now wants to put the whole matter behind him.

Last month, an Alexandria federal court said university officials violated “John Doe’s” due process rights by failing to give Doe adequate notice of the full range of charges he faced. The court also faulted GMU for deviating from its own appeal procedures and for two campus officials’ off-the-record and ex parte meetings with the accuser.

The Feb. 25 decision in Doe v. GMU (VLW 016-3-090) marks the first time a disciplined student in a campus sexual misconduct case has won on summary judgment, according to Washington D.C. lawyer Justin Dillon, who represented Doe.

The critical next question is, what remedy can be afforded to the student, an issue Dillon calls “a case of first impression throughout the nation.”

Damages are not available but the court ordered GMU to strike the disciplinary findings against Doe and reinstate him as a student. But it is not clear yet whether Doe will be subjected to a repeat attempt by the university to sanction him for the same conduct.

Judge T. S. Ellis III has ordered briefs on the proper remedy to be submitted to the court this month.

Consent issues

Ellis’ chronology of the case is drawn from the summary judgment record.

Shortly after Doe enrolled as a freshman at GMU in August 2012, he began a relationship with “Jane Roe,” a student at a different university, according to the district court’s Feb. 25 decision.

It’s not uncommon for college administrators to face a case of “he said, she said” when confronting charges of sexual misconduct. This case, however, had a twist. The students acknowledged that they had a “BDSM” relationship that involved bondage, discipline, submission and masochism.

An element of force may be part of such a relationship, confounding issues of consent.

“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” – in this instance, “red,” according to Doe – “would signal a withdrawal of consent,” the court recounted.

During his second year at GMU, Doe had a sexual encounter with Roe in his dormitory room on Oct. 27, 2013. Roe at one point pushed Doe away but he continued the activity. At another point, plaintiff asked Roe if she wanted to continue, she responded “I don’t know” and he continued because she did not use the agreed safe word “red,” Doe said.

When Roe ended their relationship a few months later, Doe occasionally attempted to communicate with her. In a March 2014 text message, he told her that if she did not respond to him, he would shoot himself. The next month, Roe reported incidents of harassment by the plaintiff and also alleged he had violated GMU’s sexual misconduct policy, based on their Oct. 27 encounter in Doe’s dorm room.

Under GMU policy, sexual misconduct charges were adjudicated by a three-member panel of the Sexual Misconduct Board, which included GMU faculty and staff. After a 10-hour hearing, the panel found plaintiff not responsible as to the four charges arising from the Oct. 27 meeting. Roe appealed the panel decision.

Brent Ericson, Director of the Office of Student Conduct at GMU, allowed the appeal and assigned it to himself, even though he was part of the earlier panel proceeding. Ericson had ex parte conversations with Roe and with the disciplinary panel members. Ericson conceded that when he finally met with Doe, he had already decided to find Doe responsible for sexual assault.

Ericson found Doe responsible for violating university policies against deliberately touching or penetrating another person without consent, and communication that may cause injury, distress or emotional or physical discomfort.

Juliet Blank-Godlove, GMU’s Dean of Students, upheld Ericson’s decision to expel Doe, after meeting separately and off the record with Doe, Roe and Ericson.

Procedural problems

Judge T.S. Ellis III found fault with important elements of the disciplinary proceedings against Doe.

First, the university failed to adequately notify Doe that the inquiry involved conduct beyond the Oct. 27 incident in Doe’s dorm room. The communications Doe received “repeatedly referenced a single incident and timeframe,” Ellis said, and Doe’s discussion of additional incidents with Ericson did “not cure the lack of constitutionally adequate notice” in this case.

The administrative burden of informing Doe “formally that the whole of his relationship with Roe could be properly considered was incredibly low – a single telephone call, email, or a letter to that effect would have sufficed,” Ellis wrote. “By conveying a limited scope of focus to plaintiff, defendants prejudiced plaintiff’s ability to mount an effective defense.”

Context mattered with respect to the two students’ BDSM relationship, Ellis said, as illustrated by the initial panel decision in favor of Doe after he described the nature of the students’ liaison.

Ellis cited the “glaring procedural deficiencies” arising from Ericson’s and Blank-Godlove’s off-the-record and ex parte meetings with Roe during the appeals process. “Ericson never truly afforded plaintiff a meaningful opportunity to be heard in the appeal process,” the judge concluded.

Ellis also said the university could not punish Doe for causing his accuser distress by threatening to shoot himself if she did not respond to his message. Doe was punished for the text message because of its “intended emotive effect” on Roe, which was error.

Ellis took issue with the “coddling of the nation’s young adults” by proscribing expressions on a campus that may be “distressing or discomforting.”

GMU’s brief on a proposed remedy is due March 18. David G. Drummey represented GMU. A GMU spokesman declined comment on the case.