Full opinion text
MEMORANDUM OPINION T.S. Ellis, III, United States District Judge Plaintiff in this Fourteenth Amendment due process and free speech case is a former George Mason University (“GMU”) student who was expelled in December 2014 following an, administrative process that found him responsible for violating two of GMU’s student conduct regulations, one pertaining to sexual misconduct and one pertaining to threats. In response to this expulsion, plaintiff filed the instant action in February 2015 against GMU and three of its officials in their individual and official capacities, alleging violations' of various state and .federal constitutional rights, state common law duties, and federal law. By Order and Memorandum Opinion dated September 16, 2015, defendants’ motion to dismiss plaintiffs Second Amended Complaint was granted in part and denied in part. As a result of this Order, plaintiffs remaining claims are for (i) deprivation of a constitutionally protected liberty interest without due process of law and (ii) violation of plaintiffs right to free speech. The named défendants, sued only in their official capacities; are (i) Angel Cabrera, President of GMU, (ii) Brent Ericson, an Assistant Dean' of Students and Director of the Office of Student Conduct at GMU, and (iii) Juliet Blank-God-love, Dean of Students at GMU.. , This Memorandum Opinion addresses two issues First, the-parties, have filed cross-motions for summary judgment on plaintiffs due process and free speech claims. These motions have been fully briefed and argued, and the motions are now ripe for disposition. Additionally, this Memorandum Opinion provides further explanation of the decision to deny plaintiffs motion to reconsider the ruling on defendants’ motion to dismiss. The motion to reconsider, which was denied in a ruling from the bench, .sought, inter alia, to restore plaintiffs allegation that defendants violated his substantive due process right to sexual liberty, an argument that warrants further elucidation here. - I. The facts- giving rise to the instant suit began in August 2012, when plaintiff matriculated as a freshman at GMU. Shortly thereafter, plaintiff began a romantic relationship with a woman — referred to pseudonymously as Jane Roe — who was a student at a different university. This relationship included certain sexual practices known collectively as “BDSM,” which is an acronym for the practices it entails, namely bondage,- discipline, dominance, submission, sadism, and masochism. Thus, a BDSM relationship might involve as part of the sexual activity such actions as biting, choking, spanking, or the use of restraints. In order to protect Roe, who was the submissive party in the relationship, plaintiff and Roe agreed on a safe word— “red” — that Roe could use to indicate when she wanted sexual activity to cease. According to plaintiff, the ground rules for his BDSM relationship with Roe included that plaintiff should not stop sexual activity unless and. until Roe used the safe word. Thus, under the rules of the relationship statements such as “stop” .or physical resistance to sexual conduct were not a withdrawal of consent; only the safe word “red” would signal a withdrawal of consent. While engaged in his relationship with Roe, plaintiff first came to the attention of the GMU administration . as a possible threat to student safety. Specifically, in December 2012, a GMU residence life official observed plaintiff carve the words “kill them” into plaintiffs knuckles with a pocket knife. This official intervened and accompanied plaintiff to GMU’s psychological services center. During their walk to the center, plaintiff commented that he was' glad GMU had officials who would intervene in this way, as such intervention might have prevented the 2007 shooting at Virginia Tech. This incident put plaintiff on the radar of GMU’s Campus Assessment and Intervention Team (“CAIT”), which investigates students who might pose a threat to others at GMU. At all times relevant to this action, defendants Ericson and Blank-Godlove were members of CAIT. The knuckle-carving incident -was not plaintiff’s only run-in with GMU officials; during the course of his enrollment, plaintiff incurred several disciplinary violations. Specifically, plaintiff was charged for possessing lighter fluid in his dormitory in December 2012. A few months later, in April 2013, plaintiff was sanctioned again, this time for possession of weapons on campus. On this occasion, plaintiff, while in the GMU dining hall, had in his possession both a knife and a “blackjack,” a lead-filled, leather-encased blunt force trauma weapon. - And then in May 2013, plaintiff was found responsible for interfering with a learning- environment by disrupting class. In fact, plaintiffs disruption was sufficiently severe that as part of the sanction he received, plaintiff was ordered to have no contact with the professor of the class plaintiff had disrupted. The members of CAIT were aware of plaintiffs incursions and were watching with concern. Thus, defendants Ericson and Blank-Godlove, as members of CAIT, knew of plaintiffs disciplinary record, and both came to view plaintiff as a threat to GMU. Despite his disciplinary record, plaintiff remained a student at GMU and progressed to his second year of studies. He also continued to live in the GMU dormitories, and he continued his-BDSM relationship with Roe. As such, plaintiff and Roe unsurprisingly engaged in certain of their BDSM activities in plaintiffs, dormitory room. One such occasion was October 27, 2013.. On that night, Roe went to plaintiffs dormitory room and sexual activity ensued. During this sexual encounter, Roe at one point pushed plaintiff away, but plaintiff continued the sexual activity. At another point, plaintiff asked Roe whether she wished to continue sexual activity, to which Roe responded “I don’t know.” Plaintiff continued .with the sexual activity despite the equivocation, given that Roe did not use the agreed safe word “red.” A few months after the October 27, 2013 incident, plaintiff and Roe ended théir re-látionship. In the following months, plaintiff occasionálly attempted td communicate with Roe, often to no avail. One such attempt was a March 2014 text message in' which plaintiff told Roe that if she did not respond, then plaintiff would shoot himself; In April 2014, Roe reported incidents of harassment by plaintiff and allegations of the- abusive nature of their prior relationship to her university. Thereafter, in May 2014, Roe reported her allegations to GMU’s university police department, which in turn reported the allegations - to defendant Ericson. In June 2014, Ericson first met with Roe to discuss Roe’s allegar-tions and to inquire whether Roe wished to press administrative charges against plaintiff through GMU’s student disciplinary process. From early June through late August of 2014, Ericson and Roe communicated repeatedly, exchanging eighteen emails, which according to Ericson was more contact than Ericson could recall having with any other complainant in the course of a GMU disciplinary proceeding. Quite apart from her communications with Ericson, Roe also began working with the GMU police. Specifically, in July 2014, Roe cooperated with the GMU police to record a telephone conversation between herself and plaintiff. Over the course of that conversation, Roe asked plaintiff “why [he] never stopped when [she] used the safe word,” to which plaintiff replied that he “felt like [she] could handle it.” See Recorded Telephone Conversation Transcript (D. Mem. Supp,, Ex: 9), This recording was eventually used as evidence in a July' 2014 hearing before the Fairfax County - General District Court in which Roe successfully sought a protective order against plaintiff. ■ Ultimately, Roe decided to press student disciplinary charges against plaintiff through GMU. Thus, on August 19, 2014, Ericson sent plaintiff an email informing plaintiff that GMU’s Office of Student Conduct was “in' receipt of a referral for an incident that occurred last semester involving a possible violation of the George Mason University Code of Conduct, specifically with regard to.. .Sexual Misconduct policy.” See Aug. 19, 2014 Email (D. Mem. Supp., Ex. 2). The next day, a formal letter issued suspending plaintiff from residing in GMU housing owing to plaintiff’s “alleged involvement in an incident that took place on or about October 27th 2013 (and continuing) in a George Mason University Residence Hall.” See Aug. 20, 2014 Letter (P. Mem. Supp., Ex. 4). A few days later, plaintiff received another email from the Office of Student Conduct, this time from GMU official Andre Clanton. See Aug. 22, 2014 Email (D. Mem. Supp., Ex. 3). Specifically, Clanton’s email informed plaintiff, inter alia, (i) that plaintiff was the subject of “an alleged violation to [GMU’s] sexual misconduct policy” and (ii) that plaintiff was charged with four violations of the Code of Gonduct: (1) Infliction of physical harm to any person(s), including self (Code 2013.7. A); (2) Deliberate touching or penetration of - another person without consent ■ (Code 2013.8.A); ■ (3) Conduct of a sexual nature (Code 2013.8.C); and (4) Communication that may cause injury, distress, or emotional or physical discomfort (Code 2013.9.B). See id. One week after Clanton’s initial email, plaintiff received a follow-up email containing a narrative statement by Roe describing her allegations and Roe’s list of witnesses and evidence, which included the GMU police recording of the July 2014 telephone conversation. See Aug. 29, 2014' Email (D. Mem. Supp;, Ex. 5). Roe’s narrative statement alleged “a number of violent and harassing incidents,” including “much distressing communication” from plaintiff from January 2013 through July 2014. See Roe Statement (D. Mem. Supp., Ex. 6). Moreover, Roe alleged that “[o]n many occasions, without [her] consent, [plaintiff] forced sex on [her].” Id. Importantly, the only instance of alleged sexual misconduct Roe described with any particularity was the October '27, 2013 incident, when plaintiff and Roe engaged in sexual activity in plaintiffs dormitory room. See id. Indeed, Roe described the October 27, 2013 incident as “[t]he most vivid” and the one she wanted GMU “to know most about.” Id. In addition to the foregoing email communication^, ' plaintiff received “official notification” of his alleged misconduct from Clanton by letter dated September 4, 2014. See Sept. 4, 2014 Letter (P. Mem. Supp., Ex. 6). This letter was wholly silent as to what specific conduct was alleged to have constituted a violation of the Code of Conduct, instead referencing only that the “alleged violation(s)” occurred “on or around November 2013.” Id. Under GMU policy, allegations of sexual misconduct are adjudicated by a three-member panel of the Sexual Misconduct Board, which consists ;,of GMU faculty members and staff. On September 5, 2014, a panel convened a hearing on the allegations against plaintiff. This hearing lasted ten hours, and both plaintiff and Roe had the opportunity to.testify subject to cross-examination, to call witnesses, and to submit evidence. In the course of the hearing, Roe testified as to her allegations about 'the events of October 27, 2013. Plaintiff, in turn, testified about the BDSM nature of his relationship with Roe, including the rule pertaining to the safe word. In at least one instance, the panel .explored the nature of the BDSM relationship by inquiring about events beyond October 27, 2013. Specifically, at one. point a panelist asked plaintiff if there were “instances outside of October 27th where the word ‘red’ was used and [plaintiff] did not stop.” See Hearing Transcript, 80:4-6 (D. Mem. Supp., Ex. 23). Plaintiff responded that in “very rare” and “unusual circumstances,” he would be “set in the routine of things” and Roe would need to say “red” again, at which point plaintiff “would stop immediately.” Id. at 80:7-21.. But as plaintiff explained, upon hearing the safe word he “would not just blatantly ignore and then continue” with intercourse. Id. at 80:19-20. On September 12, 2014, the panel issued a decision finding plaintiff not responsible as to each of the four charges against him concerning plaintiffs “involvement in an incident that occurred on or around October 27, 2013.” See Sept. 12, 2014 Letter (D, Mem. Supp., Ex, 24). Approximately one week after the panel’s decision issued, Roe filed an appeal of the panel’s decision that plaintiff was not responsible on all charges. Specifically, Roe alleged that there was a “substantial procedural irregularity” in that the panel found plaintiff not responsible despite the fact that, in Roe’s view, plaintiff confessed. It is worth noting here that under GMU policy, in order to justify an appeal ,a “substantial procedural irregularity” must be identified “by the conduct officer.” See Code at 17. As defined in the GMU policies, a “conduct officer” is coextensive with a “hearing officer.” See id. at 4. The hearing officer for plaintiffs adjudication was Clanton, who appears on this record to have played no role in identifying a substantial. procedural irregularity. Nevertheless, Ericson permitted Roe’s appeal, and Ericson assigned the appeal to himself notwithstanding his prior involvement in the case. In adjudicating Roe’s appeal, Ericson engaged in numerous ex parte (and, the summary judgment record suggests, completely off the record) meetings with persons involved. For instance, Ericson met with each of the panelists who had adjudh cated plaintiffs case in the first instance. Ericson also met with Roe. Finally, on October 8, 2014, Ericson met with plaintiff. Importantly, Ericson concedes that as of his meeting with plaintiff, Ericson had already prejudged the appeal and decided to find plaintiff responsible for sexual assault. ■ By letter dated October 10, 2014, Ericson formally announced his decision, finding plaintiff responsible for violating Code 2013.8.A (deliberate touching or penetration of another person without consent) and Code 2013.9.B (communication that may cause injury, distress, or emotional or physical discomfort). As a result of these findings, Ericson imposed the sanction of expelling plaintiff from GMU. Ericson’s October 10 letter did not explain the factual basis for his decision or the grounds for reversing the decision of the hearing panel. On or about October 16, 2014, plaintiff appealed Ericson’s decision as improper on the ground that it did not meet the criteria for an appeal under GMU policy. Plaintiff was allowed to pursue this appeal, although GMU had never previously allowed an appeal of an appeal and GMU has never allowed an appeal of an appeal since. Plaintiffs appeal was before Blank-Godlove, the Dean of Students. In the course of her deliberation, Blank-Godlove met separately and off the. record with plaintiff (accompanied by counsel), Roe, and Ericson. Blank-Godlove did not review the entire record; rather, she reviewed only those portions of the record identified by Ericson as supporting- his decision. On December 5, 2014, Blank-Godlove issued her • decision via a form letter that affirmed Ericson’s decision on responsibility and the sanction of expulsion. Accordingly, plaintiffs GMU transcript now notes a non-academic expulsion as of December 5, 2014. Plaintiff commenced the instant lawsuit in February 2015, claiming, inter alia, that his expulsion was a denial of due process in various respects. Plaintiff now knows— only as a result of discovery in this action — that the review of Roe’s appeal was de novo and that plaintiff was expelled for conduct other than what occurred on October 27, 2013. II. Analysis begins with the parties’ cross-motions for summary judgment. At issue on these motions are plaintiffs two remaining, claims, namely that .defendants deprived plaintiff of liberty without due process of law and infringed upon his right to free speech. Each of these counts is addressed separately. A. To prevail on a,procedural due proce'ss claim, plaintiff must establish (i) that he possessed a protected liberty interest, (ii) that the state or its agents deprived him of this interest, and (iii) that this deprivation was effectuated without constitutionally ■ sufficient process. See Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir.2013). It is well settled that a liberty interest is implicated “[w]here a person’s- good name, reputation, honor, or integrity" is at stake because of what the government is doing to him.” Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). Nevertheless, “injury to reputation alone does not deprive an individual of a constitutionally protected liberty interest.” Tigrett v. Rector & Visitors of Univ. of Va., 290 F.3d 620, 628 (4th Cir.2002). Rather, as the Fourth Circuit has explained, in order to constitute a protected liberty interest a “reputational injury [must be] accompanied by a state action that ‘distinctly alter[s] or extinguished]’ [a] legal status.” Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 315 (4th Cir.2012). The" Fourth Circuit has further noted that a reputational injury is actionable if there is even “a likelihood that prospective employers or members of the public [will] see. the damaging information.” Sciolino v. City of Newport News, 480 F.3d 642, 650 (4th Cir.2007). Here, the. undisputed record facts reflect that plaintiff was expelled from GMU on a charge of sexual misconduct. Such a charge plainly calls into question plaintiffs “good name, reputation, honor, or integrity.” Constantineau, 400 U.S. at 437, 91 S.Ct. 507. Moreover, plaintiffs expulsion constitutes an alteration of his legal status as a student. Cf. Sciolino, 480 F.3d at 649 (termination of employment constitutes a qualifying alteration of status). The record further discloses that plaintiffs transcript bears a notation that he was the subject of a non-academic expulsion. Thus, plaintiffs future educational and employment endeavors,- which rom finely require disclosure of academic tram scripts, may well lead to the publics learning that plaintiff was expelled for misconduct. -Although the specific nature of the charge is not disclosed, any reasonable person will conclude that a non-academic justification for an expulsion implies “the existence of serious character, defects,” Id. at 646 n. 2 (internal quotations omitted). And if this were not sufficient, the undisputed record reflects that Roe, a member of the general public, was in fact informed that plaintiff was-found liable for sexual misconduct by Ericson. Given this analysis, and because plaintiffs expulsion was indisputably a state action, the undisputed record makes clear that state action has deprived plaintiff of a protected liberty interest. B. The question then becomes whether G'MU afforded constitutionally adequate process. In this regard, plaintiff alleges that four distinct but interrelated proce: dural errors render the .process here constitutionally insufficient. First, plaintiff argues that Ejricson deviated from established GMU procedures and covered up this deviation by issuing a decision devoid of explanation. Second, plaintiff contends that Ericsoris de novo review of the record resulted in a finding of responsibility for events about which plaintiff had no notice were in issue. Third, plaintiff objects to the. off-the-record ex parte meetings that occurred with Roe during the appeal. And fourth, plaintiff argues that Ericson and Blank-Godlove were imper-missibly biased decision-makers. Defendants, in turn, argue that plaintiff had adequate notice and opportunity to be heard oh the specific facts of this case, namely that plaintiff (in defendants’ view) admitted to sexual misconduct. Analysis of the adequacy of process under the' Due Process Clause is governed by the familiar three-factor balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The three relevant factors are (i) the private interest that will be affected by the official action, (ii) the risk of an erroneous deprivation of such interest through the procedures’ used, and the probable value, if any, of additional or substitute procedural safeguards, and (in) the government’s interest, including the function involved and the fiscal and administrative burdens that' the. additional or substitute procedural requirements would entail. See id. As the Supreme Court cautioned in Mathews, “[t]he judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances.” Id. at 348, 96 S.Ct. 893. Rather, the essence of the due process requirement is that a person should receive notice and án adequate opportunity to be heard in light of the circumstances at issue. See id. at 349, 96 S.Ct. 893. In this respect, due process is “flexible" and context sensitive. Id. at 334, 96 S.Ct. 893. The Fourth Circuit has provided guidance on the application of the principles of Mathews in the higher education disciplinary context. Specifically, the Fourth Circuit has embraced the Fifth Circuit’s decision in Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 158 (5th Cir.1961), observing that Dixon’s “summary of minimum due process requirements for disciplinary hearings in an academic setting is still accurate today.” Henson v. Honor Comm. of Univ. of Va., 719 F.2d 69, 74 (4th Cir.1983). In Dixon, 294 F.2d at 158, the Fifth Circuit articulated “the nature of the notice and hearing required by due process prior to expulsion from a state college or university.” As a general matter, a student threatened with expiilsion is entitled to notice that “contain[s] a statement of the specific charges and grounds which, if proven, would justify expulsion.” Id. And where the charge is misconduct, a hearing which gives the ... administrative authorities 'of the college an opportunity to hear both sides in considerable detail is best suited to protect the rights of all involved. This is'not to imply that a full-dress judicial hearing, with the 'right to cross-examine' witnesses, is required ... Nevertheless, ... the student should be given the names of the witnesses against him and an oral or'written ‘report on the facts to which each witness testifies. He should also be given the' opportunity to present to ... an administrative official of the college, his own defense against the charges and to produce either oral testimony or written affidavits of witnesses in his behalf. If the hearing is not before the [administrator] directly, the results and findings of the hearing should be presented in a report open to the student’s inspection. Id. at 159. It remains now to apply the principles of Dixon, as endorsed by Henson, to the adequacy of plaintiffs notice and opportunity to be heard in this ease. 1. Analysis properly begins by examining the sufficiency of . the notice defendants provided, to plaintiff, an issue the parties vigorously dispute. It is undisputed that plaintiff was- expelled for sexual misconduct occurring on dates other than October 27, 2013; the disagreement between the parties is whether plaintiff had notice that such dates were in issue. In defendants’ view, plaintiff was put on notice that the entirety of his relationship with Roe was in issue at several points in the disciplinary process. Plaintiff contests this characterization, arguing that the only specific notice afforded to him was with regard to the events of October 27, 2013. As Dixon makes clear, a public university student accused of misconduct is entitled to “a statement of the specific charges” against him. 294 F.2d at 158 (emphasis added). A review of the record reveals that plaintiffs only specific notice. here was with respect to the events of October. 27, 2013. The first notice of disciplinary charges that plaintiff received was an August 19, 2014 email from Ericson informing plaintiff that Ericson’s office was “in receipt of a referral for an incident that occurred last semester involving a possible violation of the George Mason University Code of Conduct.” See Aug. 19, 2014 Email (D. Mem. Supp., Ex.. 2). This opaque notice can hardly be said to give plaintiff a clear indication of the specific nature of the charge, but importantly the email does suggest by its use of “an incident” that the allegation against plaintiff was limited in scope to a single incident. Id. Plaintiff received further notice the next day in the form of a letter on GMU letterhead that referenced plaintiffs “alleged involvement in an incident that took place on or about October 27th 2013 (and continuing) in a George Mason University Residence Hall.” See Aug. 20, 2014 Letter (P. Mem. Supp., Ex. 4). Although the “and continuing” language appears broad, the very next sentence of the letter refers again to a singular “incident.” Id, Thus, this notice, which bears more traditional indicia of formality, can be said to put plaintiff on specific notice only that the events of October 27, 2013, were in issue. Plaintiff next received notice from Andre Clanton, Associate Director of GMU’s Office of Student Conduct, via an August 22, 2014 email. This email provided no specifics as to the alleged factual basis of the charges, but it once again referenced “an alleged violation” in the singular. See Aug. 22, 2014 Email (D. Mem. Supp., Ex. 3). Thereafter, plaintiff received a followup email containing a narrative statement by Roe describing her allegations and Roe’s list of witnesses and evidence, which included the GMU police recording of the July 2014 telephone conversation. Roe’s narrative statement alleged “a number of violent and harassing incidents,” including “much distressing communication” from plaintiff from January 2013 through July 2014. See Roe Statement (D. Mem. Supp., Ex. 6). Moreover, Roe alleged that “[o]n many> occasions, without [her] consent, [plaintiff] forced sex on [her],” Id. In defendants’ view, Roe’s narrative statement is significant because.it clearly references multiple alleged incidents of abuse over a lengthy period of time. Yet, the only incident described with specificity is October 27, 2013. And importantly, Roe is not a state actor, and her statement therefore cannot put plaintiff on notice as to what incidents the state wished to hold plaintiff accountable. In light of the communications prior to his receipt of Roe’s narrative statement, plaintiff very reasonably could have believed that GMU was pursuing charges only for the October 27, 2013 incident, GMU’s “official notification” letter dated September 4, 2014, did nothing to remedy the defects; it exacerbated them. See Sept. 4, 2014 Letter (P. Mem. Supp., Ex. 6). Specifically, the official notification expressly narrowed the timeframe in issue to “on or around November 2013,” a timeframe consistent with the representation that the events of October 27, 2013, were exclusively in issue. Id. A fair and careful reading of the transcript of the panel.hearing highlights the fact that plaintiff, was not on notice as to the scope of the charges against him, as the transcript discloses that the events of October 27, 2013, were the central focus of the hearing. Moreover, following the panel hearing, the letter finding plaintiff not responsible specifically noted that the hearing “concerned] [plaintiffs] involvement in an incident that occurred on or around October 27, 2013.” See Sept. 12, 2014 Letter (D. Mem, Supp., Ex. 24). In short, defendants.argue .that even though the panel conducting the,hearing was not on notice that the whole of plaintiffs relationship was in issue, somehow plaintiff was on notice of that fact. Yet, where, as here, the communications plaintiff received repeatedly referenced a single incident and timeframe, and the panel conducting the disciplinary hearing believed that only that same single incident in that same time-frame was before the panel, there can be little doubt that the notice to plaintiff was constitutionally inadequate to inform plaintiff that additional events were charged against him. . Nor was this constitutionally inadequate notice cured at any point during the appeals that followed. Indeed, with respect to Roe’s appeal to Ericson,' it is undisputed that plaintiff “received no notice that he was being charged with instances of sexual misconduct apart from Ms. Roe’s allegations as to what occurred on October 27, 2013.” Although plaintiff concedes that he discussed incidents beyond October 27, 2013, with Ericson, that does not cure the lack of constitutionally adequate notice in the circumstances here because the fact that matters are discussed does not constitute notice that the discussed matters are validly in issue. See Doe Dep., 140:7-141:6. The same is true with respect to any conversations plaintiff and Blank-Godlove may have had about events beyond October. 27, 2013. And it is worth, noting that even though plaintiff discussed events beyond October 27, 2013, with both Ericson and Blank-Godlove, plaintiff received no notice in the decisions of either of these officials that the basis for their decisions in any way related to events beyond October 27,2013. Simply put, plaintiff was not fairly on notice that events other than' those of October 27, 2013, were at issue in his disciplinary hearing. And moreover, such a lack of notice cannot be divorced from the adequacy of plaintiffs opportunity to be heard. See Flaim, 418 F.3d at 638 (stating that constitutionally adequate notice must afford “a meaningful opportunity to prepare for the hearing”) (internal quotations omitted). To elucidate, the scope and content of the defense plaintiff mounted to the charges against, him may have been different had plaintiff had better notice. Specifically, plaintiff has contended, and continues to contend, that in the context of his BDSM relationship with Roe, the circumstances defendants took as admissions of sexual misconduct were in fact consensual. With adequate notice that these admissions were fair game for discipline, plaintiff may have put on additional evidence supplying greater context to his statements in order to. demonstrate the truth of his contention. Without adequate notice, government officials can attempt, as defendants do here, to construct a post hoe justification for their missteps by suggesting that ambiguous phrases — ‘and continuing5’ — or vague language — “a number of violent and harassing incidents” — served as adequate notice. Due process will not allow this; the notice must be sufficient to allow an accused, student “a meaningful opportunity to prepare.” Flaim, 418 F.3d at 638. And an opportunity is not meaningful where, as here, the accused student is unaware of the factual bases on which he can be found responsible for a misconduct violation. Put in terms of the Mathews factors, the administrative burden of informing plaintiff 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. Instead, at almost every turn defendants conveyed the sense that plaintiff could be disciplined, if at all, only for the events relating to October 27, 2013. By conveying a limited scope of focus. to plaintiff, defendants prejudiced-plaintiffs ability to mount an effective defense, which increased the possibility of an erroneous outcome; Indeed, as the panel hearing and subsequent decision of not responsible on all charges illustrates, context matters with respect to plaintiff and Roe’s BDSM relationship. When plaintiff supplied context to the events of October 27, 2013, he was acquitted; the same result might obtain as to the other incidents for which plaintiff had no notice he was subject to discipline. To be clear, the conclusion reached here that plaintiff was not afforded adequate notice should not be taken to suggest that the Constitution requires some particular formula of words or specific means of communication.' Rather, the conclusion here is simply that plaintiff received no adequate notice at any point in' the proceedings, whether before the panel hearing or after the hearing, that events other than October 27, 2013, were in issue. Had such notice been afforded after the panel hearing, but-before the appeal to Ericson, or after Ericson’s decision, but before the appeal to ■ Blank-Godlove, such that plaintiff would still- be given an opportunity to mount a meaningful defense in at least one stage of proceedings, the notice might then have been constitutionally adequate. But in fact ■ plaintiff had no such notice. In any event, nothing in- this decision should be construed as imposing a rigid- requirement of meticulously detailed notice at the. outset of a disciplinary proceeding. Instead, the dispositive principle as to notice on the undisputed record as it exists here is simply this: Failure to provide clear and specific notice at any point .that might allow for a meaningful defense is constitutionally insufficient to provide due process. 2. Quite apart from defendants’ constitutionally ' inadequate notice given to plaintiff, plaintiff also argues that his opportunity to be heard was rife with procedural error. To be sure, plaintiff correctly does not challenge the adequacy of the opportunity to be heard that he received at the panel hearing as to' the events of October 27, 2013, as the record here reflects that the process was fully adequate in that respect. Rather, plaintiff aims his attack at the procedural- inadequacies that arose only after Roe took her appeal. Plaintiffs attack hits the mark. Two of the most glaring procedural deficiencies with Ericson’s and Blank-Godlove’s handling of the appeals were the off-the-record and ex parte meetings Ericson and Blank-Godlove had with plaintiffs accuser. As Dixon makes clear, where an accused-student is not present during proceedings against him, he should be “given... an oral or written report on the facts to which each witness testifies.” 294 F.2d at 159. Thus, although meeting with Roe ex parte was not by itself constitutionally problematic, the failure to provide plaintiff, at minimum, a report of, what transpired during the ex parte meetings such that plaintiff could defend himself against Roe’s allegations in these meetings fell short of constitutionally adequate due process. Framed in terms of the Mathews factors, the low administrative burden of making some record of the ex 'parte meetings and conveying that record to plaintiff could reasonably have reduced the risk of error by (i) putting plaintiff on notice of the full context of the accusations and evidence against him and (ii) affording him an opportunity to respond to those accusations. No less important is the fact that Ericson never truly afforded plaintiff a meaningful opportunity to be heard in the appeal process. Dixon makes plain that' an accused student must be afforded an opportunity to preseht á defense',' and a necessary corollary to this requirement is that the opportunity must be meaningful. See Henson, 719 F.2d at 74 (noting the importance of “the opportunity to be heard by disinterested parties”). The undisputed record facts reflect- that, as of the time plaintiff was allowed to present his defense before Ericson, Ericson admits that he “had prejudged the case and 'decided to find [plaintiff] responsible” for .sexual assault. P. Mem. Supp,, ¶ 37 (undisputed fact under Local Rule 56(B)). All the more troubling, Ericson .had..extensive ex parte contact with Roe over the summer of 2014, yet Ericson assigned Roe’s appeal to himself rather than to another official with less actual (or even apparent) conflict. To ■ be sure, defendants correctly point out - that there is a well-established “presumption that government officials can and will decide particular controversies conscientiously and fairly.” Boston v. Webb, 783 F.2d 1163, 1166 (4th Cir.1986). Thus, the Fourth Circuit has held that an administrative official does not “cease[] to be an impartial decision-maker simply by virtue of having made a conditional decision.. .pending further developments in an -administrative process.” Morris v. City of Danville, 744 F.2d 1041, 1044 (4th Cir.1984). As such, the mere fact that Ericson determined based on his prior involvement in the investigation that plaintiff was likely guilty is not a constitutionally significant inadequacy. Yet, the record here discloses that Ericson made up his mind so definitively that nothing plaintiff might have said at his meeting with Ericson could have altered Ericson’s decision. See Ericson Dep., 200:13-17. On this record, Ericson had not made a preliminary determination “pending further developments in an administrative process.” Morris, 744 F.2d at 1044. Rather, Ericson firmly made up his mind without first hearing plaintiffs defense. Although this might not rise to the level of bias on Ericson’s behalf in a technical sense, it certainly indicates that plaintiffs opportunity to be heard by Ericson was not meaningful. Nor does the fact that Blank-Godlove subsequently reviewed Ericson’s decision operate to cure the constitutional deficiencies in the process. The undisputed record reflects (i) that Blank-Godlove similarly met ex parte and off-the-record with Roe such that plaintiff could not respond to any of Roe’s ‘ allegations in the meeting and (ii) that Blank-Godlove limited her review to those portions of the record on which Ericson relied. See Blank-Godlove Dep., 86:2-88:11. In this respect, Blank-Godlove at best provided a perfunctory review of Ericson’s decision and at worst was improperly influenced by ex parte communications. Because Blank-Godlove’s formal decision letter does not disclose any analysis or explanation for her decision, it is impossible now to • determine which was the case. A few additional irregularities bear mentioning. It is clear from the record that the process afforded to plaintiff included certain deviations from GMU’s own' established polieiés and procedures. For one, it does not appear that the hearing officer advising the panel was involved in identifying a “substantial procedural irregularity,” which is one of the prerequisites for allowing an appeal. Nee Code at 17. Moreover, it is undisputed that Ericson violated guidance from the U.S. Department of Education’s Office for Civil Rights by informing Roe of his decision to grant her appeal a full two days before informing plaintiff. P. Mem. Supp., ¶ 38 (undisputed fact, under Local Rule 56(B)). Although these procedural irregularities, standing alone, would not rise to the level of a constitutional violation, “the accumulation of mistakes” on this record, including “failures to comply”- -with, internal policies, clearly “resulted in a violation of procedural due process.” Furey, 884 F.Suppüd at 259 (finding, based on a totality of errors that included deviations from the university’s code, that a university disciplinary process fell short of what due process required). Defendants. argue an Important point, namely that it is. insufficient to show that constitutionally inadequate process was afforded; plaintiff must also show that the lack of process caused prejudice. See Graham v. Mukasey, 519 F.3d 546, 549-500 (6th Cir.2008). In this respect, defendants argue that because plaintiff admitted to conduct that amounts to sexual misconduct under the Code, Ericson and Blank-God-love had a sufficient basis from which to find plaintiff responsible. Thus, defendants argue, plaintiff can show no prejudice because the record clearly establishes his guilt. Defendants’ argument as to an admission is belied by the administrative record of the appeal. At the outset, it is important to note that Code 2013.8.A, under which plaintiff was found responsible for sexual misconduct, prohibits “deliberate” touching or penetration without consent. See Code at 5. Accordingly, any admission of liability must be an admission of both the actus reus of touching or penetration and the mens rea of “deliberate.” Plaintiff testified before the panel that, although there were instances in which he did not stop sexual contact when Roe used the safe word (the actus reus), plaintiff “would not just blatantly ignore and then continue” with sex (the mens rea). See Hearing Transcript,- 80:19-20. In other words, plaintiff denied that he acted deliberately. Although Roe’s evidence of the July 2014 telephone conversation recording1 was to the contrary in that plaintiff responds that he did not stop when Roe used the safe word because he “felt like [she] could handle it,” plaintiff testified at his panel hearing that he was simply trying to be agreeable with Roe as part of his attempt to apologize. See id. at 74:16-75:18, 166:1-9. Thus, an impartial decision-maker could conclude that plaintiff’s explanations were entirely credible and that he did not act with the requisite intent. Given this, therefore, the authorities on which defendants rely are distinguishable. For example, in Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1242 (10th Cir.2001), the student charged with misconduct admitted the fact in issue to the hearing board directly. The same was true in Boster v. Philpot, 645 F.Supp. 798, 801 (D.Kan.1986), in which high school students admitted their misconduct directly to the school’s principal. Here, plaintiff denied the relevant fact — the mental state of “deliberate” — before the panel and before Ericson. See Hearing Transcript, 80:19-20 (denial before the panel); Doe Dep., 140:19-143:4 (denial before Ericson). Beyohd" the foregoing distinction between the instant case and defendants’ cited authorities, it is also relevant that the contexts are ¿ntirely different. That is, Watson and Boster are both about high school students who committed straightforward offenses and incurred punishments that were not life altering. In Watson, 242 F.3d at 1239, the student was expelled after admitting to assaulting his roommate, and in Boster, 645 F.Supp. at 800, the students were briefly suspended after committing vandalism.. Unlike high school students, who in a great many states are entitled to public education, plaintiff has no such guarantee with respect to :post;secondary education. Thus, unlike high school students, plaintiffs lost opportunity to continue with his post-secondary education, coupled with the possibility that he may be unable to pursue meaningful educational opportunities elsewhere while his name remains associated with sexual misconduct, inevitably .affects plaintiffs professional prospects. Moreover, unlike the assault, in Watson and the vandalism in Boster, whether plaintiff committed sexual misconduct turns on Roe’s consent, a complicated factual determination made all the more complex and nuanced by the unorthodox rules of plaintiff and Roe’s BDSM relationship. And common sense suffices to understand that an adjudication of responsibility for sexual misconduct carries a much more powerful stigma than an adjudication of run-of-the; mill assault or vandalism. Given that the facts, contexts, and consequences of the instant case are so different from those in Watson and Boster, it is unsurprising that the requirements of due process are different here. Simply put, defendants’ actions here are not justified by their contestable claim that plaintiff admitted guilt. Plaintiff did not confess with such clarity that it is inescapable that any rational fact-finder would find him responsible for sexual misconduct regardless , of the procedural protections in place. This conclusion is sufficient to establish that plaintiff was prejudiced by the constitutional infirmities in the process defendants provided to plaintiff here. 3. In sum, the undisputed record facts disclose that plaintiff was deprived of reputa-tional liberty without due process of law. Throughout the disciplinary process, plaintiff was led to believe-that he was charged with' conduct violations for a' single incident, namely the events- of October 27, 2013. After his acquittal by a panel, plaintiff was’subjected to an appellate process before an administrator who deviated from internal policy by using an alleged procedural irregularity to justify a- de novo review of the facts, again without informing plaintiff of the scope of the review. More problematically, the administrator conducting the de novo factual review met ex parte and off the record' with plaintiffs accuser. This administrator- then found plaintiff liable and imposed sanctions upon him without providing a-basis for the decision. When plaintiff appealed this decision to a higher-level administrator, the second level of appellate review proved to be little more than a rubber stamp of the decision below, focusing the inquiry on those parts of the record that supported affirming a finding of responsibility and the imposition of a sanction and once again possibly considering matters presented ex parte and off the record by plaintiffs accuser. It is worth noting also that certain key facts about the process afforded to plaintiff are known only, because of discovery in this action. For instance, only now is it clear that the “procedural irregularity” on which Ericson relied to justify.the appeal was the initial panel’s • failure to consider statements by plaintiff concerning events outside of the October 27, 2013 incident. Moreover, only now is it known that Ericson’s review was de novo, such that Ericson substituted- his own judgment for that of the initial panel. In this.respect, it,is clear that the failure to explain the disciplinary decision concealed other more -severe procedural deficiencies, thus compounding the-errors. , The narrowness of the conclusion reached here warrants emphasis. The procedural inadequacy on this reeord was not the failure to provide a ¡specific form of notice or the failure to structure proceedings in a particular manner. Rather, the conclusion reached here is simply that due process is violated where a state-run university (i) fails to provide notice of the full scope of the factual allegations in issue in- a disciplinary proceeding, (ii) deviates from its own procedures in permitting an appeal of a finding of no responsibility, (iii) conducts a de novo administrative review of the charges without affording an adequate opportunity to mount an effective defense, including by holding off-the-record and ex parte meetings with the accuser, and (iv) fails to provide a basis for its decision such that meaningful review can oceur. This conclusion is consistent with Dixon, which requires specific notice of'the charges, a meaningful opportunity to present a ■ defense, and notice of results and findings. See 294 F.2d at 158-59. Whether the absence of any one of the foregoing identified procedural errors would result in a different outcome, namely a finding of constitutionally adequate process, ■ need not be reached or decided. Accordingly, the result reached here should not be understood as requiring a state-run university to provide any specific (i) form of notice, (ii) set of internal rules, (iii) method of conducting hearings, or--(iv) form of- a final decision. Rather,, the .procedural violation- here was the compounding of the absence of specific notice as to the full scope of the events in issue, the clear deviation from established policies, the failure to provide adequate assurances 'of proper, decision-making on appeal, and the absence of a final decision that permits meaningful review. A final point merits mention. In the employment discrimination context, it is now well Settled that federal courts should not sit “as a kind of super-personnel department weighing the prudence of employment. decisions.” DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir.1998). The same is no less true in the context of reviewing university, discipline; the question is not one of prudence,, but one of lawfulness. Defendants have painted a picture of plaintiff portraying him as disturbed, depraved, and dangerous, such that it is good that he was expelled. Whether this is true is immaterial to the matter at hand, as the Due Process Clause of the Fourteenth Amendment is not concerned with ends but with means. In other words, it may well be that plaintiff deserves to be expelled or qtherwisé sanctioned for certain behavior, but the Constitution requires that if behavior is to be sanctioned, then the state must ensure the soundness of the decision it reaches as the situation requires. At almost every critical turn, GMU had low-cost and low-burden options at its disposal that would have vindicated plaintiffs due process right. With adequate notice, an appellate reviewer who would hear plaintiff out with an open mind, and the avoidance of off-the-record ex parte meetings with the accuser, the outcome here might well be different. But where the accused has this much at stake, as in the context of university discipline of this magnitude, the compounding of errors that could easily and cheaply have been avoided renders the risk of unfairness “intolerably high.” Withrow v. Larkin, 421 U.S. 35, 58, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) (observing that due process is violated where the “facts and circumstances” of a particular ease demonstrate that “the risk of unfairness is intolerably high”). Accordingly, on Count I plaintiffs motion for summary judgment must-be granted and defendants’ motion for summary judgment denied. B. Because defendants deprived plaintiff of a protected liberty interest without due process, analysis now turns to the issue of a remedy for this improper deprivation. Plaintiff proposes that defendants (i) should be enjoined from enforcing their sanction against plaintiff, (ii) should be enjoined from maintaining any record that plaintiff committed misconduct with respect to Roe’s allegations, (iii) should be enjoined from imposing any sanction or punishment for any conduct occurring, or allegedly occurring, before the date of judgment, and (iv) should be required to reinstate plaintiff as a student in good standing at GMU. Defendants, in turn, propose that plaintiff should be afforded at most a new hearing. Neither party’s position in this respect has been adequately briefed or argued, and it is clear that such briefing would aid the decisional process. At this point, however, a few clear principles merit mention to guide the briefing. Any remedy will be equitable in nature, as each defendant is named in his or her official capacity. And, as the Fourth Circuit has explained, “[o]ne of the glories of equity jurisprudence is that it is not bound by the strict rules of the common law, but can mold its decrees to do justice amid all the vicissitudes' and intricacies of life.” Bowen v. Hockley, 71 F.2d 781, 786 (4th Cir.1934). Thus, it is clear that a remedy must be shaped to do justice on the "specific facts- of the instant case. Accordingly, the recognition that defendants did not afford constitutionally adequate process to plaintiff does not necessarily require turning a blind eye to GMU’s .representation that in the judgment of GMU’s administrators plaintiff poses a threat to the GMU community1 based on the totality of his actions and disciplinary violations. It may well not do justice- to force GMU to place its community of students,' faculty, and staff at potential risk if plaintiff did in fact commit misconduct simply' because “the constable has blundered” in the first round of process. New York v. Defore, 242 N.Y. 13, 21, 150 N.E. 585 (1926) (Cardozo, J.) (famously criticizing the exclusionary rule). Plaintiff was expelled.on serious charges, and serious charges require careful attention to the adequacy of'the process, but defendants’ failure to vindicate plaintiff’s rights in the first instance does not necessarily require a judicial order preventing GMU from vindicating its community’s right to a safe environment by enjoining the further adjudication of these serious misconduct charges. At this stage, one thing is perfectly clear: plaintiff was expelled because of (i) alleged sexual misconduct occurring on dates other than October 27, 2013, and (ii) a text message sent in March 2014 threatening suicide, allegations that were not adjudicated through a constitutionally adequate process. Accordingly, there can be no doubt that it is - appropriate here to vacate the decisions of defendants Blank-Godlove and Ericson and to order that plaintiff be reinstated as a GMU student in good standing. Indeed, defendants do not appear to contest this. Thus, the key questions in crafting a remedy appear to be (i) whether GMU should be allowed to' pursue a new round of disciplinary hearings, (ii) if so, what allegations occurring before the date of judgment should be open for adjudication, and (iii) whether there should be any restrictions on the means by which the new disciplinary hearings, if any, are to be carried out, e.g., enjoining Ericson and Blank-Godlove from participating. In sum, it is clear that plaintiff must be reinstated as a student in good standing at GMU at least until new process is afforded, if such process 1 is allowed. But the issues identified here — and perhaps other issues that the parties deem relevant— would benefit from further briefing. Accordingly, an Order will issue setting a briefing schedule on the issue of an appropriate remedy. C. The remaining count at issue on the parties’ cross-motions for summary judgment is Count IV, in which plaintiff alleges that defendants infringed on his freedom of speech. Specifically, plaintiff was sanctioned, in part, for sending a text message to Roe in which plaintiff said that if Roe did not respond, plaintiff would obtain a gun and shoot himself in the chest. Ericson and Blank-Godlove (but not the hearing panel) found this text message to be a “communication. ...likely to cause injury, distress, or emotional or physical discomfort” under Code 2013.9.B. The question here is whether this determination and the subsequent imposition of punishment were consistent with the Constitution. It should be noted at the outset that resolution of the free speech question is arguably moot here in light of the conclusion that defendants deprived plaintiff of liberty without due process of law! Indeed, as the discussion of a remedy in Part II-B, supra, illustrates, plaintiff is entitled to have his finding of responsibility vacated on procedural' grounds. Because the remedy for the due process violation affords the same relief sought under Count IV, namely the vacating of the decision of responsibility and reinstatement as a student in good standing, ■ resolution of the free speech question would not afford any additional meaningful relief, particularly because plaintiff does not seek a finding that Code 2013.9.B is facially unconstitutional. Indeed, a leading treatise notes that an “unspoken consideration[ ]” in applying the mootness doctrine is “the importance of the underlying legal issues.” 13C Wright & Miller, Federal Practice and Procedure § 3533.3.1 at 83 (3d ed. 2008). In this respect, “[i]t may ... be important to defer decision until a pressing need for an available and effective remedy justifies resolution of a' difficult question.” Id. Where, as here, a plaintiff is entitled to reinstatement in good standing on procedural grounds alone, there is no “pressing need” for a remedy on the basis of a substantive constitutional violation as well. See id. Yet, for the sake of completeness the free speech issue is addressed, but only as an alternative ground for relief. Analysis properly begins with the text of the provision under which plaintiff was found responsible for misconduct. Code 2013.9.B provides, in relevant part: 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 indirectly. ...by.. .electronic or written communication in a manner likely to cause causes [sic] injury, distress, or emotional or physical discomfort is also prohibited [sic]. ... The first half of the provision cited above clearly evidences an intent to ban “.true threats,” which constitute a well-settled exception to the freedom of speech protected by the First and Fourteenth Amendments. See Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). Indeed, the first half of the provision in issue is tailored to be entirely consistent’with the Fourth Circuit’s law on true threats,''in that Code 2013.9 prohibits only behavior (including speech) that' “an ordinary reasonable recipient who is familiar with the context.. .would interpret as a threat of injury.” United States v. White, 670 F.3d 498, 507 (4th Cir.2012). The constitutional problem presented here arises from Code 2013.9.B, which “also prohibits],” inter alia, “[c]om-municating.. .by electronic communication in a manner likely to cause causes [sic] injury, distress, dr emotional or physical discomfort.” There can be no doubt that this language is susceptible to an interpretation that “[pen]alizes a substantial amount of protected expressive activity,” e.g., offensive speech. United States v. Williams, 553 U.S. 285, 297, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Indeed, Code 2013.9.B’s plain language imposes no “reasonable person” limitation and covers such vague effects as “distress” or “emotional... discomfort.” In that respect, under a reasonable interpretation of Code 2013.9.B, the provision penalizes speech that an individual finds offensive or disagreeable. As defendant Ericson expressed in his deposition, in his view Code 2013.9.B is broad enough to permit disciplinary action against a student who' expresses a racist view that.African-Americans should not be permitted to enroll at GMU and thereby upsets an African-American student. See Ericson Dep., 173:3-15. Yet, it is well established that racist speech, even on a university campus, is constitutionally protected. See, e.g., IOTA XI Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 393 (4th Cir.1993) (recognizing that despite a university’s “responsibility” to maintain “an educational environment free of discrimination: and racism,” such goals should be accomplished “in some fashion other than silencing speech on the basis of its viewpoint”). Although Code 2013.9.B’s plain language reaches beyond the true threats exception, defendants alternatively argue that the restriction is justifiable in light of Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Under Tinker, 393 U.S. at 513, 89 S.Ct. 733, a public school may proscribe speech without running afoul of the constitutional right to free speech if necessary to protect students or to support the educational mission. Thus, public school officials may suppress student speech if they “reasonably conclude that it will ‘materially and substantially disrupt the work and discipline of the school.’ ” Morse v. Frederick, 551 U.S. 393, 403, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (quoting Tinker, 393 U.S. at 513, 89 S.Ct. 733). As the Third Circuit has persuasively illuminated, the exact manner in which Tinker applies in the university setting “is difficult to 'explain” and likely evades “any broad categorical rules.” McCauley, 618 F.3d at 247. Instead, the teachings of Tinker arid its progeny in the elementary anil secondary school settings should be “scrutinized carefully” before being applied to universities, “with an emphasis on the underlying reasoning of the rule to be applied.” Id. This