George Washington University is embroiled in a federal challenge against its handling of a case by one of our students accused of sexual assault.  The case raises troubling questions of the school’s actions following the disclosure of alleged false statements by an accuser.  Many years ago, I wrote a letter to the GW faculty objecting to changes in our rules governing the investigation and adjudication of sexual harassment and assault cases.  Like many universities during the Obama Administration, GW was reducing protections for students accused of such misconduct under pressure from the Department of Education (here and here),  Now, a “John Doe” has raised some of those very concerns in the alleged refusal of the school to allow an appeal in his case following the discovery of potentially exculpatory evidence.Doe is alleging that GWU has refused to grant an appeal after he discovered (with no help from the university) that his accuser allegedly introduced false evidence on the key question of her level of intoxication.  The accuser was Gillian Chandler who decided to drop her anonymity and self-identify in an article with The GW Hatchet in March.  The male student has continued his use of an anonymous identity but has accused Chandler of outing him publicly in violation of privacy rules.

In the filing last week, the student describes an all-too-familiar dispute for colleges and universities over whether there was true consent to sexual relations due to intoxication. The two students reportedly met at a party and used Uber to return to Doe’s room, Chandler testified that she was in a “blackout state” during this time and had no memory of the ride.  She says that woke up face down on Doe’s dorm bed during sex.

In January the university found Doe responsible for sexually assaulting Roe on September 13, 2015, and suspended him for one year.

Doe and Roe met at a party the previous night and used Uber to return to Doe’s room, though Roe testified that she was in a “blackout state” during this time and had no memory of the ride, according to the filing. She said she woke up face down on Doe’s dorm bed during sex.  She said that she tried to push him away and said “no” but was forced to have sex.  She says that she left and later told her roommate and boyfriend what had happened.  The evidence of her intoxication was based largely on an  alleged phone call between her and a friend, “E.E..”   E.E. said that she called her when the two were going to Doe’s room and that she slurred her words and was clearly incapacitated.

The phone records were only obtained by filing an action in federal court.  The court allowed Mr. Doe to serve a third-party subpoena to obtain E.E.’s cellphone records and the court later acknowledged that “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.”

Later however Doe reported that he was able to prove that the call was never made after reviewing a record of calls to E.E.  If true, it was clearly be material and important.  Doe also raised an expert’s report questioning the level of alcohol claiming by the accuser in her system (given her ability to walk downstairs and memory of certain facts).  He also introduced a witness claiming to have had a lucid conversation with the accuser shortly before they left.

That does not mean that the conviction would be overturned. However, the evidence does raise obvious and disturbing questions for appeal. Nevertheless, Robert Snyder, GWU’s executive director of planning and outreach, Doe had “not met the requirements for an appeal.” If so, there are obvious problems with “the requirements.”

The university is maintaining a conflicting position of maintaining that 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. Yet, it is trying to block the new evidence of the lack of a call to E.E., which would challenge the veracity of prior testimony as well as the assumed physical state of the accuser.

The Student Code contains an appellate rule at Section 33 that reads:

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. Appeals must be submitted in writing to the Office of Student Rights & Responsibilities within five business days after receipt of the outcome letter. Failure to appeal within the allotted time will render the original decision final and conclusive.

That language requires new information that (1) is relevant, (2) not previously introduced, and (3) significantly alters the finding of fact.  The one problem with the language is the absence of an appeal based solely on the misapplication of the “law” governing the adjudication. There are appeals based on the failure to follow procedures.  It only seems to allow an appeal for new evidence as opposed to error.  Even if one accepts the limited basis for appeal, the question is the “as applied”  element for the rule.  If the evidence on the call was part of the appeal (as opposed to evidence acquired later in federal court), it is hard to see why it would not meet these conditions.

Doe also alleges, as recounted by the court, that the university rules and bias have produced a conviction rate of 100%:

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 [10] 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; see also https://gwtoday.gwu.edu/message-university-administrators (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.

Doe is seeking a partial summary judgment before Judge Rosemary Collyer.  He lost the first round when Collyer refused to block Doe’s suspension.  It is often difficult to secure a preliminary injunction of this kind, which requires that Doe 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.”  Collyer decided that he could not meet that standard.  Collyer had ample case precedent for rejecting a gap year injury as the basis for preliminary injunction. She noted

“Mr. Doe argues forcefully that a “gap” between the date of his degree and the date he begins graduate school or meaningful post-graduate employment will forever injure his record and require explanation of Ms. Roe’s accusation to any future school or employer even if he succeeds at this lawsuit. However, the University will post-date Mr. Doe’s diploma if he wins and a gap of one year between college and graduate school is neither unusual nor necessarily impactful.”

While recognizing the precedent cited by the court, I have always been troubed by the dismissal of a year as insufficient to meet the prong for irreparable harm.  That is still a considerable loss to be frozen in amber, waiting for a ruling. It can also take more than a year given the dockets of most of our federal courts.

GWU however lost more than it gained in the opinion.  The case will still go forward and Collyer rejected a motion in Limine to block the evidence of the missing call.

It is true that the cellphone records do not pertain to the Court’s review of the fairness and reasonableness of the hearing panel’s decision at the time. However, the Court finds the cellphone records to be relevant to this case because they may be found to support Mr. Doe’s contention that he is actually innocent of the behavior for which he was suspended.

The university will now have to continue its costly defense and deal precisely with the evidence that it refused to consider in its own appellate process.  Most students do not have the resources or inclination to take such matters to court.  When they do, judges are often shocked by what they see in academic proceedings in the denial of confrontation, access to witnesses, access to counsel, and other flaws.  GW is not as bad as some schools in such due process violations but it is hardly a model of good practices.  The denial of any appeal in this case is hard to reconcile with basic concepts of fairness or due process.

I have been supportive of these lawsuits which have repeatedly found that universities are abusing their students in denying the basic due process and evidentiary protections.  University administrators and faculty have ignored objections for years from law faculty and others about these procedures.  As I have previously argued, the Obama administration sought to achieve the appearance of success through a pretense of process. It associated fundamental rights with unsafe environments. However, stripping rights will not bring real safety any more than rigging outcomes will bring real justice for our students.