Recent George Mason University Federal Court Opinion Provides Roadmap for Navigating True Threats and Due Process at Public Institutions

Recent George Mason University Federal Court Opinion Provides Roadmap for Navigating True Threats and Due Process at Public Institutions

In a recent and noteworthy opinion, Doe v. The Rectors and Visitors of George Mason University, the United States District Court for the Eastern District of Virginia adjudicated due process and free speech claims brought by a disciplined student against a public university. The court’s scholarly opinion offers important guidance—specifically the “do’s and don’ts” of due process and speech regulation at public institutions.  In short, the court held that: (1)  the university violated Doe’s due process rights by failing to give Doe specific notice of the breadth of the charges against him and failing to permit him to defend himself adequately; and (2) the university infringed on Doe’s right to free speech by imposing sanctions for a text message in which Doe threatened to harm himself.  The opinion offers helpful guideposts for both public and private  colleges and universities striving to provide compliant and fair institutional procedures for addressing student misconduct.  How this holding may impact communications deemed “harassing” by institutions will be an important area to monitor as courts continue to grapple with what types of speech implicate Title IX and the extent to which such speech overlaps with the safeguards of the First Amendment.


In August 2012,  Doe was a freshman at George Mason University.  At that time, Doe began a relationship with Jane Roe, which the parties and court characterized as “BDSM,” an acronym for the sexual practices involved – bondage, discipline, dominance, submission, sadism, and masochism.  Roe was the submissive party in the relationship.  To protect Roe, the couple agreed to use “red” as a safe word, which would signal that Roe wanted sexual activity to stop.  Under the ground rules of their relationship, Doe was not to cease sexual activity unless Roe used the safe word “red,” while words like “no” or “stop” or physical resistance did not indicate withdrawal of consent. 

On October 27, 2013, while engaged in sexual activity, Roe pushed Doe away, but Doe continued sexual activity. At another point, Doe asked Roe if she wished to continue, to which Roe responded, “I don’t know.” Doe continued with sexual activity despite Roe’s uncertainty, since she did not use the word “red.” Several months later, Doe and Roe ended their relationship.  Doe unsuccessfully tried to contact Roe, including a March 2014 text message in which Doe told Roe that if she did not respond, he would shoot himself.  

Charges and Procedure
In April 2014, Roe reported harassment and allegations of the abusive nature of the relationship to the university and its police department, which reported her allegations to the Director of the Office of Student Conduct.  The Director met with Roe in June 2014 to discuss her allegations and inquire whether she wanted to press administrative charges through GMU’s student disciplinary process.  From June through late August, the Director and Roe communicated continually, exchanging eighteen emails.  In July 2014, Roe cooperated with police to record a telephone conversation she had with Doe asking why he never stopped when she used the safe word. Doe replied that he “felt like she could handle it.”  

Roe asserted student disciplinary charges against Doe through GMU’s disciplinary process.  GMU suspended Doe from university housing owing to Doe’s “alleged involvement in an incident that took place on or about October 27th 2013 (and continuing) in a George Mason University Residence Hall.” One week later, the Office of Student Conduct sent Doe a follow-up email attaching (1)  a narrative statement by Roe describing her allegations alleging violent and harassing incidents, distressing communications, and forced sex, and (2) Roe’s list of witnesses and evidence, which included the GMU police recording of the July 2014 telephone conversation.  The only instance of alleged sexual misconduct Roe described with particularity was the October 27, 2013 incident in Doe’s dorm room.  The Office of Student Conduct also sent Doe an “official notification” of his alleged misconduct by letter. The letter was silent as to what specific conduct was claimed to have violated the Code of Conduct, referencing only that the “alleged violation(s)” occurred “on or around November 2013.” 

Following an investigation, a panel held a ten-hour hearing on the allegations against Doe. Both Doe and Roe had the opportunity to testify subject to cross-examination, to call witnesses, and to submit evidence. Roe testified about the events of October 27, 2013. Doe, in turn, testified about the BDSM nature of their relationship, including the rule pertaining to the safe word, and conceded that he had not stopped on at least one occasion when Roe said “red.” The panel explored the nature of the BDSM relationship by inquiring about events beyond October 27, 2013.  On September 12, 2014, the panel found Doe not responsible as to each of the four charges against him concerning Doe’s “involvement in an incident that occurred on or around October 27, 2013.” 

Approximately one week later, Roe appealed, alleging that there was a “substantial procedural irregularity” in that the panel found Doe not responsible despite the fact that, in Roe’s view, Doe had confessed.  Under GMU policy, to justify an appeal, a “substantial procedural irregularity” must be identified by the conduct officer.  The conduct officer for Doe’s adjudication played no role in identifying a substantial procedural irregularity. Nonetheless, the Director permitted Roe’s appeal and assigned the appeal to himself.

On appeal, the Director found Doe responsible for violating the GMU Code provisions banning “deliberate touching or penetration of another person without consent,” and “communication that may cause injury, distress, or emotional or physical discomfort.”  The Director expelled Doe from GMU. The Director’s letter did not explain the factual basis for his decision or the grounds for reversing the decision of the hearing panel.

The court observed that in adjudicating Roe’s appeal, the Director of the Office of Student Conduct engaged in numerous ex parte (and, the summary judgment record suggests, completely off the record) meetings with persons involved, and admitted in deposition that as of his post-appeal meeting with Doe, he had already prejudged the appeal, deciding to find Doe responsible for sexual assault.


Due Process
The question the court addressed first was whether in depriving Doe of a protected reputational liberty interest, GMU afforded Doe constitutionally adequate due process.  The court held that GMU failed to do so for two principal reasons.  First, the court held that throughout the disciplinary process, Doe was led to believe that he was charged with conduct violations for a single incident on October 27, 2013, while he was actually expelled on the basis of numerous other incidences for which the university had not provided notice.  Second, the court held the disciplinary process violated procedural due process requirements in that several administrators at varying stages of appeal held ex parte meetings with Roe and failed to inform Doe as to the accusations against him or afford Doe an opportunity to defend himself, which resulted in prejudice to Doe.

The Court emphasized that the procedural violations were not the failure to provide a specific form of notice or the failure to structure proceedings in a particular manner.  The Court summarized its common-sense holding as follows: due process is violated where a state-run university (1) fails to provide notice of the full scope of the allegations, (2) deviates from its own procedures in permitting an appeal of a finding of no responsibility, (3) conducts a de novo review of the charges depriving the accused of an opportunity to defend himself, including by holding ex parte meetings with the accuser, and (4) fails to provide a basis for its decision.  

The court explained that the administrative burden of informing Doe formally that the whole of his relationship with Roe could be properly considered was incredibly low—a single telephone call, email, or letter to that effect would have sufficed, even saying perhaps as little as that all events and timeframes referenced in Roe’s narrative statement were open to scrutiny.  Had Doe been afforded notice at any point during the proceedings (even prior to appeal) that events other than those occurring on October 27, 2013 were at issue, such that Doe would still be given an opportunity to mount a meaningful defense, notice might then have been constitutionally adequate.  Likewise, the court stated that procedural deficiencies could have been easily remedied.  Had the university made some record of the ex parte meetings available to Doe, it would have reduced the risk of error by putting Doe on full notice of the accusations against him and affording him the opportunity to respond to those accusations.  The key, common-sense takeaway is simply this: universities should provide accused students with clear and specific notice as well an opportunity to be fully heard at each stage of a disciplinary proceeding.

Free Speech
Doe further alleged that GMU administrators infringed on his freedom of speech by disciplining him for the March 2014 text message that Doe sent to Roe threatening to shoot himself.  The court agreed, and held that GMU’s sanction was improper because the text message did not constitute a true threat, and as a public institution GMU was not permitted to sanction Doe based on his intent to cause Roe emotional distress.

GMU administrators found Doe’s text message to Roe to be “a communication ... likely to cause injury, distress, or emotional or physical discomfort” under the GMU Code.  In pertinent part, the GMU Code provides:

Acts of misconduct include ... [a]ll hostile, threatening, or intimidating behavior that by its very nature would be interpreted by a reasonable person to threaten or endanger the health, safety or well-being of another. Examples for such behavior may include...b) Communicating ... either directly or or written communication in a manner likely to cause causes [sic] injury, distress, or emotional or physical discomfort is also prohibited [sic].

The court found the first half of the Code provision aiming to ban “true threats” was consistent with the well-settled “true threat” exception to First Amendment freedoms.  The court found, however, the latter part of the Code prohibiting electronic communications likely to cause “injury, distress, or emotional or physical discomfort” to be problematic.  The court explained that this provision overstepped the boundaries of the “true threat” exception and impermissibly aimed to penalize speech that an individual finds offensive or disagreeable.  The Court explained that Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969) applied in only a limited capacity in the university setting because allowing broad limitations on speech, as GMU had tried to do, would frustrate the mission of the university as a “bazaar of ideas,” including disagreeable ones.  

The court concluded that the university’s Code of Conduct could be construed to prohibit only true threats or fighting words, thereby limiting the regulation within constitutional boundaries. The court likewise found that Doe’s text message was neither—Doe did not threaten to harm another (true threat), nor would his message tend to incite an immediate breach of the peace (fighting words).  The court further rejected the university’s argument that it could justifiably punish Doe on an ad hoc basis under Tinker because the university could reasonably conclude that the message would “materially and substantially disrupt the work and discipline of the school” under Tinker because a threat of suicide implicated GMU’s interest in the order and safety of its students. Leaving this legal issue for another day, the court pointed out that the record reflected Doe was punished for the text message because he intended to cause Roe distress, not because he posed harm to himself or others.  Thus, the court held that defendants could not justify sanctioning Doe in hindsight on an ad hoc basis, though it left open the question, and indicated in dicta, that if such a record had existed, the university may have been justified in imposing a sanction. 

While the court held that Doe’s threat to harm himself was not speech that could be regulated or sanctioned by GMU, the court carefully noted that this should not be interpreted to mean that university administrators are powerless to act in the face of a threat of suicide. The court cited to Cox v. Warwick Valley Cent. Sch Dist., 654 F.3d 267, 273 (2d Cir. 2011) in which a school administrator sequestered a student for several hours who had submitted an essay describing suicide as  illustrative of the tools universities have at their disposal, consistent with Tinker, to address communications dealing with potential suicides.  In dicta, the court explained  the “lesson” for public universities where threats of suicide intersect with speech: administrators may intervene as necessary to investigate whether a threat is real and isolate students who pose a threat in order to protect the university community, as well as punish students when the situation is appropriate. The clear “don’t” is that public university administrators may not punish a speaker simply because he intended to cause distress to the recipient. 

Unanswered Questions
How this holding may impact speech deemed “harassing” by institutions will be an important area to watch as courts continue to grapple with these issues.  Things remain quite murky as to speech that implicates Title IX and how extensively such speech overlaps with speech protected by the First Amendment. The takeaway here for public institutions is that university policies regulating speech in the service of order and community should be thoughtfully and narrowly tailored to avoid stepping into the realm of protected free speech.  Saul Ewing will continue to monitor this evolving and important area of the law.  If you have questions about this case or how it may implicate your institution’s policies and procedures, please do not hesitate to contact the authors.

The opinion discussed in this alert may be found at John Doe v. The Rector and Visitors of George Mason University, et al., No. 1:15-cv-209, 2016 WL 775776 (E.D. Va. Feb. 25, 2016), and is also available from the authors.

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