Federal Court: George Mason University Violated Accused Student’s Due Process and Free Speech Rights

Colin Pool

A federal district court has ruled that George Mason University violated the due process and free speech rights of a male student accused of sexual assault.¹ The plaintiff, John Doe, had been expelled from the university after being found responsible for violating GMU Student Code of Conduct provisions related to sexual assault and threatening communications.

Shortly after enrolling in the university in the fall of 2012, Doe began a romantic relationship with a female student from a different university, Jane Roe. The relationship included sexual practices known collectively as “BDSM.”² Their routine involved the use of an agreed upon “safe word” to indicate that sexual activity should stop, rather than simply saying “no” or “stop.” The two would engage in these practices in Doe’s dorm room. On October 27, 2013, Doe and Roe were engaged in sexual activity in his dorm when at one point Roe pushed Doe away, but he continued the sexual activity. At another point, he asked her if she wished to continue, and she responded, “I don’t know.” Since she did not use the agreed upon safe word, Doe continued with the activity.

A few months later, the two ended their relationship. Following their breakup, Doe occasionally attempted to communicate with Roe, including one attempt where he threatened to shoot himself if she did not respond. Roe eventually reported incidents of harassment and allegations of sexual abuse to GMU, including incidents apart from the October 27 incident.

Charges under GMU’s Student Code of Conduct were eventually filed against Doe. He was found not responsible, but Roe appealed this decision. The university reversed course and found Doe responsible for sexual misconduct and threatening communications, expelling him from the university. Doe filed claims against the university alleging violations of his rights to due process, free speech, and sexual liberty.

The Court found that GMU deprived Doe of a constitutionally protected liberty interest without adequate process. It first found that GMU did not provide Doe with adequate notice of the charges against him. GMU’s communications with Doe identified the October 27, 2013 incident as the basis for the charges, yet GMU admitted that Doe was expelled for sexual misconduct occurring on other dates as well. Noting that due process requires a public university student to have notice of the “specific” charges against him, the Court found that GMU had not given Doe proper notice that events other than the October 27 incident were at issue.

The Court also found it problematic that university administrators had several off-the-record and ex parte meetings with Roe during the appeals process, citing Fourth Circuit law requiring that the accused be given an oral or written report on the facts to which a witness testifies if the accused is not present for the testimony. Furthermore, the Court found that Doe was not given a meaningful opportunity to be heard during the appeal because the administrator handling the appeal admitted that he “had prejudged the case and decided to find [Doe] responsible” for sexual assault before Doe had even presented his defense. The Court also noted that GMU deviated from its own policies and procedures in adjudicating Doe’s case.

The Court stressed the “narrowness” of its conclusion, stating that it was “simply that due process is violated where a state-run university (i) 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 finding of no responsibility, (iii) 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 meaningful review can occur.” The Court did not hold that any specific actions were constitutionally required. The Court noted that while “it may well be that plaintiff deserves to be expelled . . . 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.”

The Court then addressed Doe’s free speech claim, which centered on GMU sanctioning Doe for threatening to kill himself if Roe did not respond to his text messages. The Court took issue with the broadness of the GMU code provision at issue, which prohibits “communicating . . . either directly or indirectly . . . by electronic or written communication in a manner likely to cause injury, distress or emotional or physical discomfort.” The Court found that it was improper to punish a student for speech because of its intended emotive effect on the recipient. The Court rejected Doe’s claim that GMU violated his sexual liberty, finding that Doe had no judicially enforceable fundamental liberty interest to engage in BDSM activity.

The Court ordered that Doe be reinstated as a student in good standing at GMU, but ordered further briefing on whether GMU should be allowed to pursue a new round of disciplinary hearings against Doe, and whether there should be any restrictions on how such hearings should be carried out.

1              Doe v. The Rector and Visitors of George Mason University, No. 1:15-cv-209 (E.D. Va. Feb. 25, 2016).

2              An acronym for “bondage, discipline, dominance, submission, sadism, and masochism.”