Contributor, The Volokh Conspiracy

Q…. Is it your testimony that when John walked into your office on October 8, 2014, you had essentially prejudged his case before you even spoke to him? … A. Yes….

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I blogged Wednesday about a federal district court’s decision to strike down a George Mason University speech code; but the incident leading to the decision involved not just a student’s speech, but also his alleged sexual misconduct. And the court held that the university, in expelling the student for this misconduct, violated the student’s Due Process Clause rights:

1. The facts (some paragraph breaks added):

Shortly [after starting at GMU in August 2012], 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 [Assistant Dean of Students Brent] Ericson and [Dean of Students Juliet] 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 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. 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.” 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.

2. Roe “decided to press student disciplinary charges against plaintiff through GMU.” Roe said that “[o]n many occasions, without [her] consent, [plaintiff] forced sex on [her],” but “the only instance of alleged sexual misconduct Roe described with any particularity was the October 27, 2013 incident.” GMU’s letter to plaintiff Doe, however, “was wholly silent as to what specific 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.’ ”

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 testified as to her allegations about the events of October 27, 2013.

Plaintiff, in turn, testified 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. Specifically, 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.” 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.” But as plaintiff explained, upon hearing the safe word he “would not just blatantly ignore and then continue” with intercourse. On September 12, 2014, the panel issued a decision finding 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.”

Roe then appealed the dismissal of the charges, on the grounds “there was a ‘substantial procedural irregularity’ in that the panel found plaintiff not responsible despite the fact that, in Roe’s view, plaintiff confessed.”

Ericson permitted Roe’s appeal, and Ericson assigned the appeal to himself notwithstanding his prior involvement in the case.

In adjudicating Roe’s appeal, Ericson engaged in numerous ex parte [meaning outside the presence of the parties — EV] (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 plaintiff’s case in the first 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 find plaintiff responsible for sexual assault.

By letter dated October 10, 2014, Ericson formally announced his decision, finding 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 findings, 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 identified by Ericson as supporting his decision. On December 5, 2014, Blank-Godlove issued her decision via a form letter that affirmed 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.

3. These procedures, the court held, violated the Due Process Clause:

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. After 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 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 affirming a finding of responsibility and the imposition of a sanction and once again possibly considering matters presented ex parte and off the record by plaintiff’s 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 plaintiff 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 deficiencies, thus compounding the errors….

[T]he conclusion reached here is 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….

A final 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.” 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 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 “intolerably high.”

And the court pointed specifically to these details:

[A.] 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…. [A] public university student accused of misconduct is entitled to “a statement of the specific charges” against him. A review of the record reveals that plaintiff’s only specific notice here was with respect to the events of October 27, 2013….

[B.] Two of the most glaring procedural deficiencies 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 plaintiff’s accuser. As [a Fourth Circuit precedent] makes clear, where an accused student is not present during proceedings against him, he should be “given… an oral or written report on the facts to which each witness testifies.” 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….

No less important is the fact that Ericson never truly afforded plaintiff a meaningful opportunity to be heard in the appeal process…. The undisputed record facts reflect that, as of the time plaintiff was allowed to present his defense before Ericson, Ericson admits that he “had prejudged the case and decided to find [plaintiff] responsible” for sexual assault. 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 official with less actual (or even apparent) conflict….

[C.] Nor does the fact that Blank-Godlove subsequently reviewed Ericson’s decision operate to cure the constitutional deficiencies in the process. The undisputed record reflects (i) 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. In this respect, Blank-Godlove at best provided a perfunctory review of Ericson’s decision and at worst was improperly influenced 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….

[D.] It is clear from the record that the process afforded to plaintiff included certain deviations from GMU’s own established policies and procedures. For one, it does not appear that the hearing officer advising the panel was involved in identifying a “substantial procedural irregularity,” which is one of the prerequisites for allowing an appeal. Moreover, it is undisputed that Ericson violated guidance from the U.S. Department of Education’s Office for Civil Rights by informing Roe of his decision to grant her appeal a full two days before informing plaintiff.

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.” …

[E.] [D]efendants argue that because plaintiff admitted to conduct that amounts to sexual misconduct under the Code, Ericson and Blank-Godlove had a sufficient basis from which to find 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. 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 testified 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). In other words, plaintiff denied that 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 testified at his panel hearing that he was simply trying to be agreeable with Roe as part of his attempt to apologize. Thus, an impartial decision-maker could conclude that plaintiff’s explanations were entirely credible and that he did not act with the requisite intent….

[D]efendants’ actions here are not justified by their contestable claim that plaintiff admitted guilt. Plaintiff did not confess with such clarity that it is inescapable that any rational fact-finder would find him responsible for sexual misconduct regardless of the procedural protections in place. This conclusion is sufficient to establish that plaintiff was prejudiced by the constitutional infirmities in the process defendants provided to plaintiff here.

4. Finally, since Ericson’s “prejudging” admission was so significant to the opinion, I thought I’d quote the relevant part of the deposition:

Q…. Is it your testimony that when John walked into your office on October 8, 2014, you had essentially prejudged his case before you even spoke to him? A. Haven’t I already answered that?

Q. Answer it again. A. Yes. Essentially….

Q. Let’s take essentially out of it. When he walked into your office on October 8, 2014, having met with Jane, having read her appeal, and having looked at all the evidence, you had prejudged his case, right? A. Yes. But I was giving him the opportunity to discuss it with me.

Q. And nothing he said was going to make a difference, right? A. Nothing he did say made a difference.

Q. And nothing that you can think of that he could have possibly said would have made a difference, correct? A. The best I can answer the question, correct.