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Doe v. The George Washington University

United States District Court, District of Columbia

August 14, 2018

JOHN DOE, Plaintiff,



         As a college sophomore, John Doe encountered a young woman at a party who said that she wanted to have sex. They did. Two years later, Jane Roe complained to the university that she had been sexually assaulted because she had been obviously too drunk to consent. After a hearing before a panel of three, Mr. Doe was found responsible for sexual assault. He was suspended in January 2018 for one year, even though he had completed all coursework for his degree. Mr. Doe appealed the panel's finding but his appeal was found inadequate to present to an appellate panel. Mr. Doe sued and now moves for partial summary judgment, arguing that the handling of his appeal violated the terms of the university's contract with its students as defined in part by its Code of Student Conduct. The Court agrees and will order the university to provide the appellate review to which Mr. Doe was entitled.

         I. BACKGROUND

         The events that prompted this lawsuit began on the night of September 12, 2015, when two undergraduate students at George Washington University (GW or the University), in the District of Columbia, met at a college party. See Pl.'s Sealed Ex. 1, GW Office of Student Rights & Responsibilities Summary of Material Allegations (ORR Documents) [Dkt. 28-1] at 6 (providing the complainant's statement). John Doe was a virgin; he also did not drink any alcohol over the course of the night because he is a nondrinker for religious reasons. Pl.'s Sealed Ex. 2, Unredacted Hearing Transcript (Sealed Tr.) [Dkt. 28-2] at 54.[1] Ms. Roe was a freshman; she consumed a significant amount of alcohol over the course of the night, although the exact amount is in dispute. At the party, Mr. Doe heard Ms. Roe say she wanted to have sex; the two met and talked and at some point around midnight they left the party together, riding in an Uber taxi ordered by Ms. Roe and headed together to Mr. Doe's dorm room, where they had sexual intercourse. See ORR Documents at 6 (noting in the complainant's statement that the Uber ride took place from 11:56 p.m. until 12:21 a.m., when the two students got out of the car at Mr. Doe's building). Ms. Roe left afterwards and walked back to her room. See Id. (describing her walk home). Mr. Doe now insists that the encounter was consensual and initiated by Ms. Roe, and that his reasonable perception was that she was able to consent; she would later formally allege that she had been too drunk to consent to sex.

         On October 30, 2017, Ms. Roe filed a complaint with GW's Title IX enforcement office, [2] alleging that Mr. Doe had sexually assaulted her during the encounter two years prior. See Id. at 6-7. In her initial complaint, Ms. Roe described the approximate timing of her alcohol consumption, and stated that she had been extremely intoxicated, but did not specify the full amount she consumed. See Id. A week later, Ms. Roe supplemented her complaint stating she had consumed “5 solo [sic] cups of beer” at the party in question, in addition to alcohol consumed before she went to the party. Id. at 8 (providing the complainant's supplemental statement dated November 2, 2017). A few days later she submitted another supplemental declaration, stating she had also had a large cup of a strong mixed drink after drinking beer at the party. Id. at 10 (providing the complainant's supplemental statement dated November 6, 2017). GW investigated Ms. Roe's complaint and on December 14, 2017 convened a hearing on her allegations. At the hearing, Ms. Roe presented witness testimony that she had drunk “at least four” mixed drinks before attending the party in question, and that she was “not . . . able to speak fluidly, stumbling over words, not having perfect motor skills, tripping, ” and otherwise appeared intoxicated immediately before going to the party. Sealed Tr. at 26-27.

         Both Ms. Roe and Mr. Doe had the opportunity to present testimony, and a hearing panel consisting of “two students and one low-level administrator” presided and served as the fact-finder. Mem. in Support of John Doe's Mot. For Partial Summ. J. (Doe Mot.) [Dkt. 27-1] at 21 n.11. Ms. Roe testified as to her recollection of the evening, which included her recollection that she spoke with a friend, E.E., on the phone during the Uber ride with Mr. Doe. See Sealed Tr. at 8. E.E. also testified, stating that Ms. Roe had sounded incoherent and slurred her speech during the phone call. Id. at 43-44 (testifying that she recalled Ms. Roe “slurring [her] words” on the phone from the Uber). Another witness presented by Ms. Roe, J.E., testified that Ms. Roe had been drinking heavily and appeared drunk at a “pregame” party, although J.E. did not testify as to Ms. Roe's condition at the party at which she met Mr. Doe. Id. at 26-27. Ms. Roe's third witness, R.M., testified that Ms. Roe appeared intoxicated during the party while she was talking to Mr. Doe. See Id. at 33. Mr. Doe testified on his own behalf that Ms. Roe did not appear drunk; he did not present any other witnesses at the hearing. See Id. at 56 (“There was nothing that indicated to me that she was intoxicated. . . .”).

         On January 23, 2018, GW informed Mr. Doe that the panel had found him responsible for sexually assaulting Ms. Roe. As a result, he was suspended for one year, which delayed conferral of his undergraduate degree from spring 2018 until January 2019. See Pl.'s Ex. 12, GW Office of Student Rights & Responsibilities University Hearing Board Adjudication Report [Dkt. 27-15] at 7 (finding Mr. Doe “in violation of the charge” and recommending suspension); Def.'s Sealed Ex. C, Decision Letter (Jan. 23, 2018) [Dkt. 33-4] at 2-3.[3]

         Mr. Doe timely appealed the hearing panel's finding of responsibility according to the procedures outlined in GW's Code of Student Conduct (the Code). See Pl.'s Sealed Ex. 13, Doe Appeal [Dkt. 28-14]; see also Pl.'s Ex. 14, GW Code of Student Conduct (GW Code) [Dkt. 27-17] § 33 (providing that parties have a right to appeal the outcome of a disciplinary proceeding, and setting forth the relevant deadlines and procedural requirements). His appeal included a statement from another student, Q.W., who stated that he had spoken with Ms. Roe at the party and that she appeared “normal” and “lucid, ” and that she did not appear to be blackout drunk. Pl.'s Sealed Ex. 17, Email from Q.W. (Jan. 30, 2018) [Dkt. 28-16] at 3. Mr. Doe's appeal also included a report by a professional toxicologist, Dr. Harry Milman, who reviewed Ms. Roe's testimony regarding her alcohol consumption on the night in question and opined that the amount of alcohol Ms. Roe claimed to have consumed was so high that, were she telling the truth, she likely would have been passed out and unable to stand, speak, remember anything from the entire evening, or dress herself and leave Mr. Doe's room on her own two feet; i.e., the report called into question her testimony regarding the level of drunkenness she had displayed. See Pl.'s Sealed Ex. 15, Report of Harry A. Milman, Ph.D. (Dr. Milman Rpt.) [Dkt. 28-15] at 5.

         In relevant part, the Code provides for process by which a student may appeal the outcome of a disciplinary proceeding:

33. Parties have a right to appeal the outcome of a disciplinary hearing or conference but not the sanction. Appeals must be based on new information that is relevant to the case, that was not previously presented at the hearing or conference, and that significantly alters the finding of fact. . . .
34. A timely appeal will be reviewed by the Executive Director of Planning & Outreach or designee to determine its viability based on the criteria in Article 33. . . . If an appeal is found to be viable, the appeal will be forwarded to the Chair of the Committee on the Judicial System, who shall select a Panel of three persons from the Committee to review and decide the appeal (the “Panel”). One member from each constituency-students, faculty and administrators-shall be appointed, but otherwise the selection of Panel members shall be within the discretion of the Chair. The decision to grant or deny the appeal will be based on information supplied in the written appeal and, when necessary, the record of the original proceedings. . . . The decision of the Panel, or the outcome and sanctions (if any) resulting from any new hearing or conference ordered by the Panel in connection with the appeal, shall be final and conclusive and no further appeals will be permitted.

GW Code §§ 33-34 (emphasis added).

         Robert Snyder, GW's Executive Director of Planning and Outreach, is tasked with performing the gatekeeper function for all appeals of the University's non-academic disciplinary proceedings, a role he has performed for more than six years. See Def.'s Ex. E, Declaration of Robert Snyder (Snyder Decl.) [Dkt. 32-7] ¶ 5 (Mr. Snyder describing his role). In his declaration, Mr. Snyder describes his responsibility as “reviewing appeals from findings in disciplinary hearings to determine the viability of the appeal, ” as described in Articles 33 and 34. Id. ¶ 4. He then details his process for making this determination, which involves determining “the validity of the appeal, ” id. ¶ 6, and deciding whether the appeal has “merit” under Article 33 of the Code. Id. ¶¶ 8-11. Mr. Snyder rejected Mr. Doe's “new” evidence on the basis that both the expert toxicology report and Q.W.'s affidavit “were not previously unavailable . . . as both could have been obtained prior to the hearing.” Id. ¶ 11.[4]

         Mr. Doe filed suit and initially moved for a preliminary injunction; specifically, he sought an order from the Court requiring the University to confer his degree in May 2018 and to clear his record. Mot. for Prelim. Injunction [Dkt. 6]. The Court denied the motion because Mr. Doe had failed to establish that he would suffer irreparable harm without a preliminary injunction. 4/25/2018 Order [Dkt. 26]; Doe v. George Washington Univ., 305 F.Supp.3d 126 (2018) (Doe I). However, the Court found that Mr. Doe's breach of contract claim was likely to succeed on the merits insofar as he argued that his appeal of the finding of responsibility was viable under the Code and should have been considered by an appellate panel. See Doe I, 305 F.Supp.3d at 133. During this litigation, Mr. Doe subpoenaed telephone records from E.E.'s cellphone provider, which showed no incoming or outgoing phone calls during the time period when Ms. Roe and E.E. testified they spoke on the phone during the Uber ride. See Pl.'s Sealed Ex. 19 [Dkt. 28-18].

         Because the central focus of Mr. Doe's complaint is his sanction, resulting in the University's delayed conferral of his degree for 12 months, the matter is time-sensitive. The parties agreed, with the Court's permission, to proceed directly to briefing on Mr. Doe's motion for partial summary judgment on whether Mr. Doe's appeal was denied improperly, and that Mr. Doe's other claims, including breach of contract on other grounds, can be addressed later, as needed. See 5/2/2018 Minute Order. Mr. Doe's motion for partial summary judgment on breach of contract concerning his appeal is now fully briefed.[5] The Court held a hearing on the motion for partial summary judgment on June 13, 2018. See 6/13/2018 Minute Entry. The motion is ripe for decision.

         II. ...

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