United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT COURT.
student John Doe was found to have committed sexual assault
after the George Washington University (GW or the University)
investigated a charge filed by student Jane Roe. The
University conducted a hearing at which both parties were
given the opportunity to present witnesses, found Mr. Doe
responsible, and then denied his appeal. As a sanction, Mr.
Doe was suspended from January 2018 until January 2019, which
delays conferral of his degree even though he has completed
all required coursework. Mr. Doe complains here that GW was
biased in favor of Ms. Roe, that her claim that she was too
intoxicated to consent to their sexual encounter was untrue
and not credible, and that the hearing and appeal processes
were arbitrary and capricious. Mr. Doe sues the University
and alleges gender discrimination under Title IX of the
Education Amendments of 1972 and the D.C. Human Rights Act,
breach of contract and the implied covenant of good faith and
fair dealing, and negligence.
immediately, Mr. Doe seeks a preliminary injunction to enjoin
his suspension until this matter can be litigated to its
conclusion. He explains that he has only until April 27, 2018
to assure a graduate program, from which he has received a
provisional offer of admission, that he will receive his
diploma in May 2018, or else that school may withdraw its
acceptance. See Pl.'s Mot. for Prelim.
Injunction (Mot. PI) [Dkt. 6]; Suppl. Decl. of John Doe (Doe
Suppl. Decl.) [Dkt. 24]. The matter is fully briefed and the
Court heard oral argument.Because Mr. Doe has not demonstrated
that he would suffer irreparable harm in the absence of a
preliminary injunction, a necessary predicate for injunctive
relief, Mr. Doe's motion will be denied. To allow timely
consideration of Mr. Doe's claims on the merits, the
Court will convene a prompt status conference to set a
schedule for expedited discovery and briefing.
events leading to Mr. Doe's lawsuit began on the night of
September 12, 2015, when Mr. Doe was a sophomore. Mr. Doe
claims that he lost his virginity that night during a
consensual sexual encounter in his dorm room with Ms. Roe.
According to Mr. Doe, he and Ms. Roe were at a party together
when Ms. Roe verbally “asked if they could have sex in
his dorm room” and then called an Uber taxi to take
them there, and, once in Mr. Doe's room, initiated sexual
contact. Compl. [Dkt. 3] ¶¶ 6, 56-67. Over two
years later, on October 30, 2017, Ms. Roe filed a charge with
GW under Title IX of the Education Amendments Act of 1972
(Title IX), 20 U.S.C. § 1681 et seq., alleging
that she was too intoxicated to have consented to the sexual
encounter and that Mr. Doe should have known it. See
Id. ¶¶ 6, 68. Ms. Doe asserted that she passed
out shortly after arriving at Mr. Doe's room; that she
regained consciousness “on a bed in the dorm, facedown
while the respondent was penetrating” her; that she
“verbalized a ‘no'” which Mr. Doe
ignored; and that she left shortly thereafter, stumbling out
of the room, partially falling down the stairs, and walking
one block to her own residence. Id. ¶¶
initiated an investigation through which it conducted
interviews and a hearing before a panel composed of a GW
undergraduate student, a GW law student, and a GW
administrator whose title is “Director of Greek
Life.” Id. ¶ 102. These proceedings were
conducted pursuant to GW's Sexual Harassment and Sexual
Violence Policy (the Policy) and its Code of Student Conduct
(the Code). The record is not clear as to whether
either Ms. Roe or Mr. Doe was represented by counsel during
the investigation and proceedings, although each had an
“advisor, ” for purposes of “advice and
consultation, ” present during the hearing.
See Opp'n, Sealed Ex. A (Hearing Transcript)
[Dkt. 18-2] at 5.
charge, supplemental submissions, and hearing testimony, Ms.
Roe stated that she drank a large quantity of alcohol over
the course of the night; before the hearing panel, she
quantified her drinking to “over ten drinks” in
two-and-one-half hours, much of it before she joined the
party where she encountered Mr. Doe. Mot. PI at 11. Mr. Doe
contests Ms. Roe's account of her alcohol consumption
that night, and disputes the hearing panel's conclusion
that Mr. Doe should have known that Ms. Roe was too
intoxicated to consent to sex. He emphasizes that Ms.
Doe's account of what she drank, and when, became more
specific in each statement between the time she filed her
initial complaint and the time of her testimony at the
hearing, which he argues suggests that her testimony was
incorrect and at least should have raised questions about her
credibility, see id.; he contends that it is almost
physically impossible for Ms. Roe to have consumed as much
liquor as her testimony suggested. See Compl. ¶
7. Mr. Doe also argues that various other aspects of Ms.
Roe's allegations were inconsistent. See, e.g.,
id. ¶ 82 (“And she again stated that she
took the stairs. This time, however, she added a detail that
it is impossible to believe she only just remembered: that
she ‘remember[s] falling down the stairs as [she]
exited.' She failed to explain how it was possible that
she fell down only once in that state.”).
addition, Mr. Doe challenges the testimony of E.E., Ms.
Roe's friend, who told the panel that she spoke with Ms.
Roe during the Uber ride to the dorm and that Ms. Roe slurred
her speech and sounded “extremely intoxicated, over the
phone, and like barely conscious.” Id. ¶
110; Opp'n at 29 (summarizing E.E.'s testimony before
the panel); see also Mot. for Discovery Prior to
Rule 26(f) Conference (Discovery Mot.) [Dkt. 9] (describing
the value of E.E.'s testimony to the case against Mr.
Doe). Mr. Doe has no recollection of Ms. Roe having a phone
conversation during the Uber ride, and argues here that E.E.
fabricated the story to assist Ms. Roe. See
Discovery Mot.; Compl. ¶¶ 89-95. Mr. Doe asserts
without contradiction that he did not, and does not, drink
for religious reasons.
did not cross-examine E.E. at the hearing but he did contest
her testimony when he spoke to the panel, including by
raising his recollection that Ms. Roe had not spoken to E.E.
on the phone during the Uber ride. See Def.'s
Mot. in Limine [Dkt. 23] at 4; Hearing Transcript at
65. In this litigation, the Court allowed Mr. Doe to serve a
third-party subpoena to obtain E.E.'s cellphone records
for the relevant time frame, to determine whether a
conversation took place at all. As discussed below, those
records do not show that E.E. made or received a telephone
call during the relevant time period. GW has filed a motion
in limine to preclude introduction of E.E.'s
cellphone records, arguing that because they were not before
the hearing panel they are irrelevant to its processes or
findings. See Def.'s Mot. in Limine.
on the perceived weaknesses and inconsistences in the
testimonies of Mses. Roe and E.E., and the alleged bias of
the proceedings, Mr. Doe argues that it was unreasonable for
the hearing panel to conclude that he was responsible for
Mr. Doe alleges that GW exhibited gender bias against him and
in favor of Ms. Roe, which resulted in unfair treatment by
the hearing panel and by the administrator who denied his
appeal. He points to the panel's limiting his ability to
cross-examine witnesses and to ask certain relevant
questions, and he complains that the University's Title
IX investigator is a woman whose professional background, and
possibly current private practice, is in advocacy for victims
of sexual assault, not in neutral evaluations of evidence.
Mr. Doe alleges that GW has faced “relentless
pressure” since 2011-from the Department of
Education's Office for Civil Rights (OCR) and from its
own students-to respond more vigilantly to sexual assault
claims. Compl. ¶¶ 8-9. Mr. Doe also alleges that
the University has publicly touted “its 100% conviction
rate of respondents put through its formal sexual misconduct
process, all of whom are believed to be male.”
Id. ¶ 8; Mot. PI at 5. He cites a
“Message from University Administrators, ” that
was available contemporaneously on a GW website, which
stated: “During the last two academic years (2015-16
and 2016-17 to date), 16 reported cases resulted in formal
complaints, 10 went before a hearing board and are concluded.
Four of these  cases resulted in an expulsion, five
resulted in a suspension, and one resulted in a deferred
suspension.” Mot. PI, Ex. 7, GW Today, Message from
University Administrators (Apr. 21, 2017) [Dkt. 6-8] at 3;
(last visited Apr. 23, 2018). From this message, Mr. Doe
deduces a conviction rate of 10-for-10 of those who presented
a defense to a hearing panel.
University informed Mr. Doe on January 23, 2018 that he had
been found responsible for sexually assaulting Ms. Roe and
would be suspended for one year, after which time he would
receive his degree. See Compl. ¶¶ 118-23
(describing the findings). Mr. Doe filed an appeal as allowed
by the Code and offered in support (1) an expert toxicology
statement suggesting that Ms. Roe had to have exaggerated the
amount of alcohol she had consumed on the night in question,
and (2) a statement from another student who had spoken to
Ms. Roe that night and found her to be “normal”
and “lucid, ” and that she had kissed Mr. Doe in
public at the party before they left together. Id.
¶¶ 124-27. The appeal was rejected on the grounds
that Mr. Doe “[had] not met the requirements for an
appeal” under the Code, id. ¶ 130-31,
i.e., he had not presented relevant
“‘new information . . . that was not previously
presented at the hearing.'” Mot. PI at 14 (quoting
GW Code ¶ 33).
preliminary injunction is an “extraordinary remedy
never awarded as of right.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 24 (2008). “A
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.”
Id. at 20. Winter held that a
“possibility” of irreparable harm, relied on in
the lower courts in that case, was insufficient to satisfy
the second prong, regardless of the strength of a
plaintiff's showing on the other factors. Id. at
20-21. “Our frequently reiterated standard requires
plaintiffs seeking preliminary relief to demonstrate that
irreparable injury is likely in the absence of an
injunction.” Id. at 22.