United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
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
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
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.
October 30, 2017, Ms. Roe filed a complaint with GW's
Title IX enforcement office,  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.
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. . . .”).
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.
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.
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).
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.
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].
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. 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.