Iota Xi Chapter, Sigma Chi Fraternity v. Patterson, 08-1417.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Citation: 566 F.3d 138
• Docket Number: No. 08-1417.,08-1417.
• Parties: IOTA XI CHAPTER OF SIGMA CHI FRATERNITY, George Mason University; Ryan Duckwitz, Consul, Iota Xi Chapter of Sigma Chi Fraternity; Justin Pietro, Pro Consul, Iota Xi Chapter of Sigma Chi Fraternity, Plaintiffs-Appellants, v. Pamela PATTERSON, Associate Dean of Students, individually and in her official capacity; Michele Goubadia, Associate Director for Student Activities, Greek Life, individually and in her official capacity; Girard Mulherin, Dean of Students, individually and in his official capacity; Sandy Hubler, Vice President of University Life, individually and in her official capacity; Alan G. Merten, President, individually and in his official capacity, Defendants-Appellees, and George Mason University, Defendant.
• Decision Date: 13 May 2009

566 F.3d 138 IOTA XI CHAPTER OF SIGMA CHI FRATERNITY, George Mason University; Ryan Duckwitz, Consul, Iota Xi Chapter of Sigma Chi Fraternity; Justin Pietro, Pro Consul, Iota Xi Chapter of Sigma Chi Fraternity, Plaintiffs-Appellants,
v.
Pamela PATTERSON, Associate Dean of Students, individually and in her official capacity; Michele Goubadia, Associate Director for Student Activities, Greek Life, individually and in her official capacity; Girard Mulherin, Dean of Students, individually and in his official capacity; Sandy Hubler, Vice President of University Life, individually and in her official capacity; Alan G. Merten, President, individually and in his official capacity, Defendants-Appellees, and
George Mason University, Defendant. No. 08-1417. United States Court of Appeals, Fourth Circuit. Argued: January 27, 2009. Decided: May 13, 2009.

[566 F.3d 140]

ARGUED: Christopher Aldo Porco, the Law Offices of Christopher Aldo Porco, P.L.L.C., Washington, D.C., for Appellants. Stephen R. McCullough, Office of the Attorney General Of Virginia, Richmond, Virginia, for Appellees. ON BRIEF: William C. Tucker, Butler, Williams & Skilling, P.C., Richmond, Virginia, for Appellants. Robert F. McDonnell, Attorney General of Virginia, William E. Thro, Special Counsel, William C. Mims, Chief Deputy Attorney General, David G. Drummey, Brian E. Walther, K. Anne Gambrill Gentry, Assistant Attorneys General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees.

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge MOTZ and Judge DUNCAN joined.

OPINION

KING, Circuit Judge:

The Iota Xi Chapter of Sigma Chi Fraternity (the "Chapter") and two of its officers, Ryan Duckwitz and Justin Pietro, sued George Mason University (the "University") and several of its administrators¹ in the Eastern District of Virginia, alleging, inter alia, constitutional claims under

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42 U.S.C. § 1983. The Chapter and certain of its members were sanctioned by the University following their involvement in a series of disciplinary incidents, and the plaintiffs allege that those sanctions deprived the Chapter and its members of their procedural due process and free speech rights. The district court awarded summary judgment to the defendants, see Iota XI Chapter of the Sigma CHI Fraternity v. Patterson, 538 F.Supp.2d 915 (E.D.Va.2008), and this appeal followed. As explained below, we affirm.

I. A. 1.

The University is a public institution located in Fairfax County, Virginia, where, until May 8, 2006, the Chapter was an officially recognized student group.² Between February 2005 and August 2006, the Chapter and its members were involved in a string of on-and off-campus incidents that culminated in the revocation of the Chapter's official University recognition and the individual discipline of several Chapter members.

Five separate disciplinary incidents led to the Chapter being sanctioned. The first such incident occurred on February 26, 2005, when the Chapter co-hosted a party at an off-campus house. A female University student asserted that she was sexually assaulted at the party by a Chapter member. The victim initiated administrative charges against the Chapter member, and the University's Sexual Assault Hearing Panel subsequently adjudicated the member as responsible. As a result, the Chapter member was expelled from the University.

The second such incident occurred in mid-August 2005, when several Chapter members took part in a party where underage guests drank excessively. As a result of this second incident, defendant Girard Mulherin, Dean of Students, placed the Chapter on interim suspension on August 24, 2005. Mulherin lifted the interim suspension on September 6, 2005, after determining that the Chapter had not authorized the party, and that the Chapter had fully cooperated with the University's investigation.

The third incident took place on September 7, 2005, when the Chapter hosted another party where underage guests consumed alcohol, and where a second female University student claimed that she had been sexually assaulted by a Chapter member. The victim filed an administrative complaint in connection with that event, and the offending Chapter member was adjudicated to be responsible for the sexual assault. He was placed on disciplinary probation for the remainder of his undergraduate career.

Finally, two incidents of alleged hazing occurred on December 7, 2005. The first hazing incident occurred at about 8:30 a.m., when several Chapter members and pledges gathered on-campus near Fenwick Library and began to sing and march (the "library incident"). Defendant Michele Goubadia, Associate Director for Student Activities, Greek Life, witnessed the event from her office and concluded that the Chapter was conducting hazing activity. The second hazing incident occurred later that day, when Goubadia learned that a Chapter pledge had informed his instructor

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that he could not go home to retrieve an extra-credit assignment (the "classroom incident"). The instructor inferred that the student could not go home because of hazing by the Chapter, and she informed Goubadia about the classroom incident. In response to these suspected hazing incidents, Goubadia placed the Chapter on interim suspension, prohibiting it from participating in all social events, community service, and recruitment efforts. On December 8, 2005, Goubadia sent a memorandum to defendant Pamela Patterson, Associate Dean of Students, characterizing the two December 7 events as hazing. That same day, Patterson sent an interim suspension notice to the Chapter, restricting it from conducting any social event where more than three Chapter members or pledges were present, pending a University investigation.

The University subsequently determined that a disciplinary hearing was warranted on the five incidents described above. On February 7, 2006, the University informed the Chapter that a disciplinary hearing would be conducted on May 4, 2006. After the Chapter requested a detailed description of the charges against it, the University, on February 23, 2006, provided the Chapter with a "Complaint" listing the following charges:

1. Hazing—8:30 a.m. on December 7, 2005 in the area of Fenwick Library on the George Mason Campus.

2. Providing alcohol to minors—September 7, 2005.

3. Underage consumption of alcohol— September 7, 2005.

4. Sponsoring a party under conditions that resulted in sexual assault/s on a female guest. February 26, 2005 and September 7, 2005[.]

J.A. 774.³ On March 10, 2006, Dean Mulherin offered to settle the charges with the Chapter with a two-year suspension of the Chapter's University recognition, which the Chapter declined. The University provided the Chapter, in advance of the disciplinary hearing, with a list of the witnesses that the University intended to call.

2.

On May 4, 2006, the University convened a panel of three students from the University's Student Judicial Board (the "Panel") to address the four charges against the Chapter. During a five-hour hearing (the "Hearing"), the Chapter was permitted to make opening and closing statements, object to certain testimony, cross-examine witnesses, and present evidence.

At the Hearing, Dean Mulherin represented the University and presented several witnesses in support of the charges against the Chapter. Associate Director Goubadia testified concerning the library incident, which she characterized as hazing. Juliet Blank-Godlove, the instructor involved in the classroom incident, also testified. With regard to the classroom incident, Blank-Godlove stated that she "was concerned for hazing. It seemed to me that [the Chapter pledge] was part of a kidnap process, part of a pre-initiation process where he's not able to go home." J.A. 620. Additionally, the two female victims of the sexual assaults at Chapter-sponsored parties testified that they had consumed alcohol at those parties despite being underage, and that they were sexually assaulted by Chapter members. When the Chapter's representative sought to cross-examine these witnesses about whether

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they had actually been sexually assaulted, Mulherin stated that the prior sexual assault ruling should not be reopened, because to do so could "revictimize the victim by going through the details of this event again." Id. at 637. The Panel's hearing officer agreed and precluded further inquiry on that subject. A male friend of one of the sexual assault victims, who was with the victim on the night she was assaulted, also testified. He stated that he had seen the victim consuming alcoholic beverages at the party, and that when he looked for her later in the evening in the backyard of the house, Chapter members told him to go back inside the house. He said that he later learned the victim had been sexually assaulted in a shed in the backyard.

The Chapter also presented witnesses at the Hearing. Two of its witnesses testified as to the Chapter's overall character. One female witness, who was dating a Chapter member, described the fraternity as welcoming and trustworthy, and explained that she had not seen any aggressive behavior against women by Chapter members. Another witness testified that the Chapter had raised funds to assist him with medical bills. The Chapter also presented testimony seeking to rebut the University's allegation that it had engaged in hazing. Several witnesses—who had been Chapter pledges at the time of the library incident—testified that the incident had just been a "fun thing," not a hazing ritual. J.A. 694. Furthermore, the student who was involved in the classroom hazing incident testified that Blank-Godlove had misinterpreted his statements. He explained that the reason he could not retrieve his assignment was because he did not have his car that week and not because of hazing. He further explained...