United States District Court, D. Maryland
Xinis United States District Judge
John Doe (“Doe”), a former student at the
University of Maryland, College Park (“UMCP”),
proceeding pseudonymously, brings this action to challenge
UMCP's decision to expel him for sexual misconduct. Doe
asserts claims pursuant to 42 U.S.C. § 1983 for
violations of his Fourteenth Amendment rights to due process
and equal protection, and claims alleging Title IX gender
discrimination, violations of the Maryland constitution, and
other state common law claims against the University's
Board of Regents in their capacity as the governing body of
UMCP, and against Defendants Wallace Loh, Linda Clement, Josh
Bronson, Catherine A. Carroll, and Andrea Goodwin,
individually and in their official capacities as UMCP
employees. ECF No. 38. The issues are fully briefed and a
hearing on the motion was held on March 23, 2018. For the
foregoing reasons, Defendants' motion to dismiss is
evening of December 14, 2014, Plaintiff John Doe, Jane Roe,
several of Doe's friends, identified as “K.P”
and “A.S., ” left a College Park, Maryland bar
for K.P. and A.S.'s on-campus apartment. Once at the
apartment, Roe grew tired and fell asleep in K.P.'s
bedroom. ECF No. 38 at ¶ 7. K.P. initially joined Roe in
his bed, but later complained that he could not get
physically comfortable. K.P. left the bedroom and suggested
to Doe, who was resting on K.P.'s couch, that Doe instead
sleep in the bed with Roe, and K.P. would sleep on the couch.
initially claimed that at this point, Doe “brought up a
dare, ” that he (Doe) would “play a joke on
[Roe]” by cuddling with Roe in the bed “until she
turns around and realizes that she is not
‘cuddling' with [K.P.].” Id. at
¶ 10; see also ECF No. 54-1. Doe denies that he
proposed or engaged in any kind of a “dare, ” and
K.P. now disclaims that Doe suggested a dare. ECF Nos. 38 at
¶ 11; 43-2 at 27-29; 45-4.
however, did proceed to get into bed with Roe and fall asleep
next to her. Id. About an hour later, Doe and Roe
woke up and began kissing. ECF No. 38 at ¶ 8; see
also ECF No. 54-1. Doe fondled Roe, and asked Roe to
perform oral sex on him, to which she agreed. Id. at
¶ 8. At some point shortly after, Roe looked at Doe and
exclaimed, “You're not K.P.!” Id.
Doe immediately left the room. Soon thereafter, Roe exited
K.P.'s apartment, visibly upset, and called the police.
around 6:00 a.m., the Campus Police at UMCP began
investigating the incident. Campus Police took oral and
written statements from Roe regarding the encounter, and
interviewed Doe, K.P, and A.S. ECF No. 38 at ¶ 9. Doe
confirmed to the police his version of events regarding his
sexual encounter with Roe. Doe added that he thought that Roe
knew it was him and not K.P. because Roe would recognize
Doe's voice, and when they were kissing, Roe would have
seen and felt Doe's beard (K.P. is clean shaven). ECF No.
38 at ¶ 11. Doe also insisted to the police that he had
not entered the room on a dare, and instead went to
K.P.'s bedroom intending to sleep. Id. at ¶
Campus Police declined to bring criminal charges against Doe,
but forwarded the written incident report to the University
of Maryland Office of Civil Rights and Sexual Misconduct
(OCRSM) on January 27, 2015. Id. at ¶ 12. Roe
had also filed a complaint with OCRSM. Id. at ¶
13. On January 29, OCRSM notified Doe in writing that UMCP
was investigating a complaint “regarding an incident of
sexual misconduct” that took place on December 14, 2014
at Frederick Hall, the location of K.P.'s apartment.
Id. The notice also forewarned Doe of the range of
possible disciplinary actions, including expulsion, if found
in violation of UMCP's sexual misconduct policy. ECF Nos.
54-2 & 54-3. Attached to the letter was a separate
“rights and responsibilities” notice, which
listed the pertinent procedures and policies under which Doe
was being investigated, including UMCP's recently adopted
sexual misconduct policy known as “Appendix A.”
See ECF No. 54-3. Appendix A, which took effect in
the fall of 2014, details UMCP's procedures for
investigating and reviewing a sexual misconduct complaint.
See ECF No. 54-10.
February 13, 2015, Doe met with Defendant Josh Bronson
(“Bronson”), the Assistant Director of OCRSM.
Defendant Catherine Carroll (“Carroll”),
OCRSM's director, had appointed Bronson to investigate
Roe's complaint. ECF No. 38 at ¶ 14. Bronson
interviewed Doe in a “prosecutorial” manner,
“repeatedly challeng[ing] or attempt[ing] to contradict
the version of events given by [Doe].” Id. at
¶ 25. Bronson also told Doe that he viewed his role as
akin to that of a prosecutor. Id. Bronson did not
record the interview, and although Doe provided Bronson with
the contact information for K.P. and A.S., “Bronson
never contacted the witnesses.” Id. at ¶
16. Bronson's final Investigation Report attached to the
Amended Complaint, however, notes that Bronson unsuccessfully
attempted to contact several witnesses. Id. at
¶ 16; see also ECF Nos. 43-2 & 54-4.
April 24, Doe met with Bronson to review his Investigation
Report. ECF No. 38 at ¶ 17. Although Doe was able to
review the Investigation Report and take notes, he was not
given a physical copy of the report. Bronson incorporated
Doe's comments into the final version of the report
submitted to OCRSM. Id.
5, Defendant Goodwin notified Doe via email that his Outcome
Conference would take place at 2:00 p.m. the next day.
Id. at ¶ 20. Doe was invited to attend,
although his presence was not mandatory. ECF No. 54-5. The
email further explained that at the Outcome Conference, Doe
would receive the final Investigation Report and learn
“the outcome of the investigation, any resulting
disciplinary charges, and discuss pertinent procedures for
final resolution.” ECF No. 38 at ¶ 20. Doe was
reminded that he had the right to retain counsel or seek the
assistance of the Undergraduate Student Legal Aid Office.
also advised to review an attached “Sexual Misconduct
Policy and Code of Student Conduct” prior to the
meeting. Id. at ¶ 21. The attached
“Sexual Misconduct Policy and Code of Student Conduct,
” described a UMCP policy that was no longer in effect.
More particularly, the attachment advised that Doe would be
entitled to a hearing where he could “pose questions to
the other party, ” and “question witnesses and
present evidence.” Id. The old policy also
noted that “the burden of proof is on the complainant,
who must establish the responsibility of the student charged
by a preponderance of the evidence standard.”
Id. By contrast, Appendix A eliminated the right to
cross examine the complainant and directly question
witnesses. Id. at ¶ 23; see also ECF
after receiving Defendant Goodwin's May 5 email, Doe
informed Defendant Goodwin that because of the short notice,
he was unable to attend the scheduled Outcome Conference. ECF
No. 38 at ¶ 22. On May 7, 2015, Doe received a
“charging letter” for violation of UMCP's
“Sexual Misconduct Policy.” Id.; see
also ECF No. 54-8. The May 7 letter also included a link
to UMCP's operative Sexual Misconduct Policy and
“Sexual Misconduct Procedures, ” including
Appendix A. Id. at ¶¶ 22-23. The charging
letter informed Doe that a Standing Review Committee (SRC)
meeting was scheduled for Wednesday, May 13 to review his
alleged involvement in the December 14 incident. Id.
at ¶ 24; see also ECF No. 54-8. The letter
further informed Doe that he was welcome to attend the SRC
meeting but his presence was not required, and explained that
if he attended, Doe could listen to presentation of the final
Investigation Report and ask questions of Bronson.
See ECF No. 54-8. Doe was also reminded that
Roe's presence was not compelled, and that even if she
was present, Doe would not be permitted to ask her questions.
Id.; see also ECF No. 38 at ¶ 23. Doe
was not told that Goodwin would recommend to the SRC that Doe
be expelled. ECF No. 38 at ¶¶ 30, 69.
requested to postpone the SRC meeting so he could
“concentrate wholly on [his] academics, ” and
have more time to prepare for the “trial.”
Id. at ¶ 24; see also ECF No. 54-7.
Goodwin denied the request, noting that the SRC was
“not a hearing” and that there was “no
process for postponement.” Id.; see
also ECF No. 54-10.
meeting took place on May 13, during which Doe was given the
opportunity to pose questions to Bronson, as well as answer
questions posed by SRC members. ECF No. 38 at ¶ 26;
see also ECF No. 43-2. Roe was not present, although
the SRC was given the written statements that she had
submitted to the police and Bronson. See ECF No.
43-2. Doe questioned Bronson about Roe's differing
written descriptions of the December 14th encounter. ECF No.
38 at ¶ 26; see also ECF Nos. 43-2; 54-8;
54-10. The SRC also allowed Doe to supplement the record with
affidavits from A.S, K.P., and another individual, M.T., who
was at K.P.'s apartment on December 14. Each affidavit
stated that Bronson had not contacted them regarding his
investigation. See Id. at ¶ 26; see
also ECF Nos. 43-2 & 54-11.
20, 2015, Doe was informed in writing of the SRC's
determination that the December 14 encounter violated
UMCP's Sexual Misconduct Policy. Id. at ¶
27; see also ECF No. 54-12. The SRC specifically
determined that Doe committed sexual misconduct by engaging
in sexual contact with Roe without making a “reasonable
attempt to identify himself to [Roe, ] who had no reason to
believe the person who began touching her was not the person
she went to bed with.” Id. at ¶
27. The SRC recommended Doe's expulsion from UMCP as
sanction for his “gross violation of the sexual
misconduct policy” and lack of “mitigating
factors that would warrant a lesser sanction.”
Id.; see also ECF No. 54-12. In setting
forth its findings, the SRC effectively determined that
Roe's version of events prevailed. ECF No. 54-12.
timely appealed the SRC's determination. ECF No. 38 at
¶ 28. Pursuant to UMCP's Code of Student Conduct,
Doe challenged the SRC procedures, articulated new evidence
which he believed was not considered, and highlighted that
Defendant Bronson conducted his investigation in a biased and
partisan manner. See ECF No. 54-13. Doe also noted
that Roe had given conflicting statements about the December
14 events, and particularized those conflicts for the
reviewing board. Id.
appeal was denied on September 30, 2015. ECF No. 38 at ¶
28. Doe was informed by Defendant Keira Martone, Assistant
Director of Resident Life, that he was expelled from UMCP,
effective immediately. Id.; see also ECF
No. 54-14. Because Appendix A required UMCP's Vice
President for Student Affairs, Defendant Linda Clement, and
UMCP President, Defendant Wallace Loh, to approve all
expulsions for sexual misconduct, Doe contacted Loh in a
final attempt to avoid expulsion. ECF No. 38 at ¶ 28.
Loh denied Doe's request to remain a student.
September 30, 2016, Doe filed suit in this Court. ECF No. 1.
On March 30, 2017, Doe was granted leave to amend his
complaint. ECF No. 38. Defendants thereafter moved to
dismiss, or in the alternative, for summary judgment, as to
all counts. ECF No. 43. The issues were fully briefed and a
hearing was held on March 23, 2018. See ECF Nos.
Standard of Review
Court treats Defendants' motion as one to dismiss all
claims. When ruling on a motion to dismiss brought pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the
court must “accept the well-pled allegations of the
complaint as true” and “construe the facts and
reasonable inferences derived therefrom in the light most
favorable to the plaintiff.” Ibarra v. United
States, 120 F.3d 472, 474 (4th Cir. 1997). The court
“may consider any written instrument attached to the
complaint as an exhibit or incorporated in the complaint by
reference, as well as documents upon which the complaint
relies and which are integral to the complaint.”
Subaru Distribs. Corp. v. Subaru of Am., Inc., 425
F.3d 119, 122 (2d Cir. 2005); see also Philips v. Pitt
County Memorial Hosp., 572 F.3d 176, 180 (4th Cir.
2009). Because the Amended Complaint incorporates attachments
for which authenticity is undisputed, the Court will consider
these attachments. The Court will also consider the
transcript of the May 13, 2015 SRC meeting because the