Doe v. Rector & Visitors of George Mason Univ., Case No. 1:15-cv-209

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Citation149 F.Supp.3d 602
Decision Date25 February 2016
Docket NumberCase No. 1:15-cv-209
Parties John Doe, Plaintiff, v. The Rector and Visitors of George Mason University, et al., Defendants.

149 F.Supp.3d 602

John Doe, Plaintiff,
The Rector and Visitors of George Mason University, et al., Defendants.

Case No. 1:15-cv-209

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

Signed February 25, 2016

149 F.Supp.3d 608

Allison Marie Lansell, Justin Emerson Dillon, Adam Ross Zurbriggen, Kaiser LeGrand & Dillon PLLC, Washington, DC, for Plaintiff.

David Garnett Drummey, Brian Eugene Walther, George Mason University, Legal Dept., Fairfax, VA, for Defendants.


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

Plaintiff in this Fourteenth Amendment due process and free speech case is a former George Mason University (“GMU”) student who was expelled in December 2014 following an administrative process that found him responsible for violating two of GMU's student conduct regulations, one pertaining to sexual misconduct and one pertaining to threats. In response to this expulsion, plaintiff filed the instant action in February 2015 against GMU and three of its officials in their individual and official capacities, alleging violations of various state and federal constitutional rights, state common law duties, and federal law. By Order and Memorandum Opinion dated September 16, 2015, defendants' motion to dismiss plaintiff's Second Amended Complaint was granted in part and denied in part.1 As a result of this Order, plaintiff's remaining claims are for (i) deprivation of a constitutionally protected liberty interest without due process of law and (ii) violation of plaintiff's right to free speech. The named defendants, sued only in their official capacities, are (i) Angel Cabrera, President of GMU, (ii) Brent Ericson, an Assistant Dean of Students and Director of the Office of Student Conduct at GMU, and (iii) Juliet Blank-Godlove, Dean of Students at GMU.

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

149 F.Supp.3d 609

briefed and argued, and the motions are now ripe for disposition. Additionally, this Memorandum Opinion provides further explanation of the decision to deny plaintiff's motion to reconsider the ruling on defendants' motion to dismiss. The motion to reconsider, which was denied in a ruling from the bench,3 sought, inter alia , to restore plaintiff's allegation that defendants violated his substantive due process right to sexual liberty, an argument that warrants further elucidation here.


The facts giving rise to the instant suit began in August 2012, when plaintiff matriculated as a freshman at GMU. Shortly thereafter, plaintiff began a romantic relationship with a woman—referred to pseudonymously as Jane Roe—who was a student at a different university. This relationship included certain sexual practices known collectively as “BDSM,” which is an acronym for the practices it entails, namely bondage, discipline, dominance, submission, sadism, and masochism. Thus, a BDSM relationship might involve as part of the sexual activity such actions as biting, choking, spanking, or the use of restraints. In order to protect Roe, who was the submissive party in the relationship, plaintiff and Roe agreed on a safe word—“red”—that Roe could use to indicate when she wanted sexual activity to cease. According to plaintiff, the ground rules for his BDSM relationship with Roe included that plaintiff should not stop sexual activity unless and until Roe used the safe word. Thus, under the rules of the relationship statements such as “stop” or physical resistance to sexual conduct were not a withdrawal of consent; only the safe word “red” would signal a withdrawal of consent.

While engaged in his relationship with Roe, plaintiff first came to the attention of the GMU administration as a possible threat to student safety. Specifically, in December 2012, a GMU residence life official observed plaintiff carve the words “kill them” into plaintiff's knuckles with a pocket knife. This official intervened and accompanied plaintiff to GMU's psychological services center. During their walk to the center, plaintiff commented that he was glad GMU had officials who would intervene in this way, as such intervention might have prevented the 2007 shooting at Virginia Tech. This incident put plaintiff on the radar of GMU's Campus Assessment and Intervention Team (“CAIT”), which investigates students who might pose a threat to others at GMU. At all times relevant to this action, defendants Ericson and Blank-Godlove were members of CAIT.

The knuckle-carving incident was not plaintiff's only run-in with GMU officials; during the course of his enrollment, plaintiff incurred several disciplinary violations. Specifically, plaintiff was charged for possessing lighter fluid in his dormitory in December 2012. A few months later, in April 2013, plaintiff was sanctioned again, this time for possession of weapons on campus. On this occasion, plaintiff, while in the GMU dining hall, had in his possession both a knife and a “blackjack,” a lead-filled, leather-encased blunt force trauma

149 F.Supp.3d 610

weapon. And then in May 2013, plaintiff was found responsible for interfering with a learning environment by disrupting class. In fact, plaintiff's disruption was sufficiently severe that as part of the sanction he received, plaintiff was ordered to have no contact with the professor of the class plaintiff had disrupted. The members of CAIT were aware of plaintiff's incursions and were watching with concern. Thus, defendants Ericson and Blank-Godlove, as members of CAIT, knew of plaintiff's disciplinary record, and both came to view plaintiff as a threat to GMU.

Despite his disciplinary record, plaintiff remained a student at GMU and progressed to his second year of studies. He also continued to live in the GMU dormitories, and he continued his BDSM relationship with Roe. As such, plaintiff and Roe unsurprisingly engaged in certain of their BDSM activities in plaintiff's dormitory room. One such occasion was October 27, 2013. On that night, Roe went to 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 “I don't know.” Plaintiff continued with the sexual activity despite the equivocation, given that Roe did not use the agreed safe word “red.”

A few months after the October 27, 2013 incident, plaintiff and Roe ended their relationship. In the following months, plaintiff occasionally attempted to communicate with Roe, often to no avail. One such attempt was a March 2014 text message in which plaintiff told Roe that if she did not respond, then plaintiff would shoot himself. In April 2014, Roe reported incidents of harassment by plaintiff and allegations of the abusive nature of their prior relationship to her university. Thereafter, in May 2014, Roe reported her allegations to GMU's university police department, which in turn reported the allegations to defendant Ericson. In June 2014, Ericson first met with Roe to discuss Roe's allegations and to inquire whether Roe wished to press administrative charges against plaintiff through GMU's student disciplinary process.5 From early June through late August of 2014, Ericson and Roe communicated repeatedly, exchanging eighteen emails, which according to Ericson was more contact than Ericson could recall having with any other complainant in the course of a GMU disciplinary proceeding.

Quite apart from her communications with Ericson, Roe also began working with the GMU police. Specifically, in July 2014, Roe cooperated with the GMU police to record a telephone conversation between herself and plaintiff. Over the course of that conversation, Roe asked plaintiff “why [he] never stopped when [she] used the safe word,” to which plaintiff replied that he “felt like [she] could handle it.” See Recorded Telephone Conversation Transcript (D. Mem. Supp., Ex. 9).6 This recording was eventually used as evidence in a July 2014 hearing before the Fairfax County General District Court in which Roe successfully sought a protective order against plaintiff.

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

149 F.Supp.3d 611

plaintiff that GMU's Office of Student Conduct was “in receipt of a referral for an incident that occurred last semester involving a possible violation of the George Mason University Code of Conduct, specifically with regard to...Sexual Misconduct policy.” See Aug. 19, 2014 Email (D. Mem. Supp., Ex. 2). The next day, a formal letter issued suspending plaintiff from residing in GMU housing owing to plaintiff's “alleged involvement in an incident that took place on or about October 27th 2013 (and continuing) in a George Mason University Residence Hall.” See Aug. 20, 2014 Letter (P. Mem. Supp., Ex. 4). A few days later, plaintiff received another email from the Office of Student Conduct, this time from GMU official Andre Clanton. See Aug. 22, 2014 Email (D. Mem. Supp., Ex. 3). Specifically, Clanton's email informed plaintiff, inter alia , (i) that plaintiff was the subject of “an alleged violation to [GMU's] sexual misconduct policy” and (ii) that plaintiff was charged with four violations of the Code of Conduct:

(1) Infliction of physical harm to any person(s), including self (Code 2013.7. A);

(2) Deliberate touching or penetration of another person without consent (Code 2013.8.A);

(3) Conduct of a sexual nature (Code 2013.8.C); and

(4) Communication that may cause injury, distress, or emotional or physical discomfort (Code 2013.9.B).

See id.

One week after Clanton's initial email, plaintiff received a follow-up email containing a narrative statement by Roe describing her allegations and Roe's list of...

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