## Facts

- A George Mason University (GMU) student (“Doe”) dated “Jane Roe,” a student at another university.
- Their sexual relationship included BDSM. To manage consent during BDSM activity, they agreed Roe would use the safe word “red,” and if Roe said “red,” Doe would stop.
- On October 27, 2013, during a sexual encounter, Doe asked Roe whether he should stop. Roe responded, “I don’t know,” and Doe continued. Roe did not use the safe word.
- After the relationship ended a few months later, Doe repeatedly tried to contact Roe and at one point threatened to kill himself if Roe did not respond.
- In April 2014, Roe reported harassment and the prior relationship to her own university and worked with GMU police to record a conversation with Doe. During the call, Roe asked why Doe did not stop, and Doe replied he thought Roe could “handle it.”
- The recorded call was used in connection with obtaining a protective order and was later used in GMU’s student disciplinary process.
- GMU charged Doe with violating its sexual-misconduct policy and four provisions of its Code of Conduct, including infliction of physical harm, deliberate touching or penetration without consent, sexual conduct, and communications that may cause injury, distress, or emotional and physical discomfort.
- A university hearing panel found Doe not responsible on the charges.
- Roe appealed. The Assistant Dean of Students overturned the panel’s outcome and found Doe responsible for Code violations.
- Doe appealed to the Dean of Students, who denied relief. GMU expelled Doe in December 2014.
- Doe filed a federal § 1983 action alleging, among other things, violations of procedural due process under the Fourteenth Amendment and free speech under the First Amendment. The defendants moved to dismiss under Rule 12(b)(6).

## Issues

1. Whether Doe plausibly alleged a protected liberty or property interest—such as a “stigma-plus” liberty interest or an interest in continued enrollment—sufficient to trigger procedural due process protections.
2. Whether Doe plausibly alleged that GMU’s procedures were constitutionally inadequate, including an appeal process in which a single administrator overturned a not-responsible decision without the safeguards associated with the factfinding role.
3. Whether Doe plausibly alleged that GMU disciplined him for constitutionally protected speech, stating a First Amendment claim.

## Decision

- The court granted the motion to dismiss in part and denied it in part.
- The court held that Doe plausibly alleged a protected interest and stated a procedural due process claim challenging the disciplinary process that resulted in expulsion; that claim was allowed to proceed (at least as to appropriate defendants and relief).
- The court dismissed Doe’s First Amendment claim.
- The court also dismissed certain claims and/or defendants to the extent they were not plausibly pleaded or were barred by immunity doctrines.

## Legal Principles

- On a Rule 12(b)(6) motion, the court accepts well-pleaded factual allegations as true and asks whether the complaint plausibly states a claim for relief.
- Procedural due process requires (1) a protected liberty or property interest and (2) constitutionally sufficient procedures before the government deprives a person of that interest.
- In the public-university discipline context, due process is flexible, but generally requires notice of the charges and a meaningful opportunity to be heard at a meaningful time and in a meaningful manner.
- Where serious sanctions such as expulsion are imposed for alleged sexual misconduct—and the outcome may turn on credibility—procedural safeguards matter because the risk of error is heightened.
- A university process can raise due process concerns when the official who makes (or effectively makes) the final responsibility determination overturns an initial not-responsible decision through an appellate review that reweighs facts or credibility without hearing the witnesses.
- A First Amendment claim in this setting requires plausible allegations that the university punished protected expression, not conduct that the institution may regulate (such as harassment, intimidation, or threat-laden communications), and not merely speech used as evidence of other misconduct.

## Conclusion

The Eastern District of Virginia held that Doe’s complaint plausibly alleged a constitutionally protected interest and an arguable lack of adequate procedures in GMU’s disciplinary process—particularly where an administrator overturned a hearing panel’s not-responsible decision and expulsion followed—so the procedural due process claim survived the motion to dismiss, while the First Amendment free-speech claim and certain other claims or parties were dismissed.


Roe v. Rector and Visitors of George Mason University, 149 F. Supp. 3d 602 (2016)