Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Too often, schools are inhibited from taking action against assailants 
because they fear litigation from accused students -- primarily under claims 
related to due process -- 

this case involves both due process and first amendment claims because of the 
association rights of students disciplined for conduct occurring in 
connection with fraternity activity -- (a claim unavailable to sexual 
assaults in general)

the court addresses each of the constitutional claims in turn, holding that 
whatever first amendment right exists, it was not violated by the school's 
actions and the process afforded the accused fraternity was also 
constitutionally proper -= 

i will re-emphasize that most sexual assaults do not require adherence to due 
process principles because there are no constitutional rights at stake for 
accused students.  indeed -- the only one with constitutional rights in most 
cases is the victim who enjoys such rights via Title IX -- and thus, schools 
must comply with due process - or face litigation -- only if they fail to 
comply with the victim's constitutional rights -- 

wendy murphy

IOTA XI CHAPTER OF THE SIGMA CHI FRATERNITY, et al., Plain-tiffs, v. PAMELA 
PATTERSON, et al., Defendants.

No. 1:07cv883 (LMB/TCB)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, ALEXANDRIA 
DIVISION

2008 U.S. Dist. LEXIS 18078


March 10, 2008, Decided 
March 10, 2008, Filed

 
COUNSEL:  [*1] For Iota Xi Chapter of the Sigma Chi Fraternity, George Mason 
University, Ryan Duckwitz, Consul, Iota Xi Chapter of Sigma Chi Frater-nity, 
Justin Pietro, Pro Consul, Iota Xi Chapter of Sigma Chi Fraternity, 
Plaintiffs: Tamara Leigh Tucker, LEAD ATTORNEY, Nelson & Tucker PLC, 
Char-lottesville, VA; William Clark Tucker, Butler Williams & Skilling PC, 
Rich-mond, VA.

For George Mason University, Defen-dant: David Garnett Drummey, LEAD 
ATTORNEY, George Mason University, Fairfax, VA.

For Pamela Patterson, Associate Dean of Students, individually and in her 
official capacity, Michele Goubadia, Associate Director for Student 
Activi-ties, Greek Life, individually and in her official capacity, Girard 
Mul-herin, Dean of Students, individually and in his official capacity, Sandy 
Hubler, Vice President of University Life, individually and in her official 
capacity, Alan G. Merten, President, individually and in his official 
ca-pacity, Defendants: David Garnett Drummey, LEAD ATTORNEY, Brian Eugene 
Walther, George Mason University, Fairfax, VA; Katherine Anne Gambrill 
Gentry, Mendelsohn & Ishee PC, Fairfax, VA.

JUDGES: Leonie M. Brinkema, United States District Judge.

OPINION BY: Leonie M. Brinkema

OPINION

MEMORANDUM OPINION 
Plaintiff Iota  [*2] Xi Chapter of the Sigma Chi Fraternity ("the Chap-ter") 
and two of its members, Ryan Duckwitz and Justin Pietro, filed this action 
under 42 U.S.C. ß 1983, alleg-ing that officials at George Mason University 
("the University") violated their rights to free speech, free as-sociation, 
due process, and equal pro-tection when the University suspended official 
recognition of the Chapter. Asserting that the University's disci-plinary 
process was fraught with con-stitutional error, plaintiffs sued five 
university administrators in their individual and official capaci-ties based 
on their roles in disci-plining the Chapter. 1 

1   Unless otherwise noted, the Court will refer to plaintiffs collectively 
as "the Chapter" and to the university officials col-lectively as "the 
University."
Both parties have filed cross mo-tions for summary judgment. For the reasons 
stated in open court and in this memorandum opinion, plaintiffs' Motion for 
Summary Judgment will be denied and defendants' Motion for Sum-mary Judgment 
will be granted.

Background 
The Iota Xi Chapter of the Sigma Chi Fraternity was, until May 8, 2006, an 
officially recognized student group at George Mason University. 2 Plain-tiffs 
Ryan Duckwitz and Justin  [*3] Pietro are members of the Chapter. During the 
time period relevant to this litigation, defendant Michelle Guobadia was the 
Assistant Director for Student Activities, defendant Pam-ela Patterson was 
the Associate Dean of Students, defendant Girard Mulherin was the Dean of 
Students, defendant Sandy Hubler was the Vice President of University Life, 
and defendant Alan Merten was the President of the Uni-versity.

2   Official recognition allows a student group to publish their affiliation 
with the University, apply for certain university funds, and seek assistance 
from the University in planning events. See Mulherin Dep. 63-65.
On February 25, 2005, the Chapter co-hosted a party with the Alpha Omi-cron 
Pi sorority at an off-campus house. A female sorority member al-leged that a 
Sigma Chi member sexually assaulted her in the house that night after the 
party. See Patterson Decl. P 8. The woman later brought administra-tive 
charges against the member, and, on September 14, 2005, the Univer-sity's 
Sexual Assault Hearing panel adjudicated him responsible for the charges. 3 
Id. P 14. The member was immediately dismissed from the Univer-sity. See Def. 
Exhibit 10. 

3   The Sexual Assault Hearing Panel is group  [*4] of univer-sity 
administrators that adjudi-cates sexual assault complaints. See Mulherin 
Decl. P 9.
In mid-August 2005, the University learned that several Chapter members were 
involved in a "caserace party" where many underage guests engaged in 
excessive drinking and then vomited into trash canisters. See Guobadia Decl. 
P16; Mulherin Decl. P 17. Pic-tures and videos from the party were later 
posted on the internet. Id. As a result, Mulherin placed the Chapter on 
interim suspension on August 24, 2005. Id.; see also Def. Exhibit 12. He 
lifted the suspension on September 6, 2005 after determining that the party 
was "an unauthorized action by a per-son who happened to be a fraternity 
member" and that the leadership of the Chapter fully cooperated with the 
Uni-versity's investigation. Mulherin Dep. 16; see also Def. Exhibit 13.
On September 7, 2005, the Chapter hosted a second party where alcohol was 
again served to underage guests. Another female student filed an 
admin-istrative complaint, alleging that the (now former) vice president of 
the Chapter sexually assaulted her during the party. See Patterson Decl. P 
17. The Sexual Assault Panel adjudicated the member responsible for the 
assault on  [*5] September 14, 2005, id. P 21, and the University placed him 
on dis-ciplinary probation for the rest of his university career. 4 See Def. 
Ex-hibit 15.

4   The terms of the probation required the individual to disas-sociate from 
the Chapter and avoid contact with the accusing party.
At 8:30 a.m. on December 7, 2005, several members and pledges of the Chapter 
gathered on-campus near the Fenwick library, and some began to sing and 
march. See Guobadia Decl. P 18. Guobadia witnessed the event from her office 
and concluded that the Chapter was conducting a hazing activ-ity. Id. P 21. 
Later that day, an as-sistant dean reported that a Sigma Chi pledge claimed 
he could not, consis-tent with the Chapter's rules, return to his residence 
to collect an extra credit assignment for class. Id. P 22; see also Plt. 
Exhibit K. In response, Guobadia placed the Chapter on "in-terim suspension," 
thereby prohibiting it from participating in all social events, community 
service, and re-cruitment efforts. See Plt. Exhibit G.
A member of the Chapter protested the decision directly to Guobadia, 
as-serting that the singing activity was voluntary and not a condition of 
mem-bership. See Plt. Exhibit I. The mem-ber also insisted  [*6] that the 
Chap-ter did not prohibit pledges from re-turning to their residences. Id.
On December 8, 2005, Guobadia sent a memorandum to Patterson, character-izing 
the two events as hazing. See Pit. Exhibit J. That same day, Patter-son sent 
a second suspension notice to the Chapter, alleging that it had en-gaged in 
hazing and underage drinking in violation of various university policies. 5 
See Plt. Exhibit L. She further restricted the Chapter from engaging in any 
social activity where more than three members or pledges were present. Id. 
Patterson based this decision on what she described as a "pattern of 
behavior" by the Chapter. Patterson Dep. 50.

5   The University described the notice as a "form letter that the Dean of 
Students uses in placing fraternities and sororities on interim suspension." 
Patterson Decl. P 23.
The Chapter requested that the Uni-versity detail the nature of the charges. 
On February 23, 2006, the University presented the following list: "Underage 
drinking", "Providing alcohol to minors", "Hazing", and "Sexual assault/s." 
Def. Exhibit 18. In response to further inquiries, on March 27, 2006, the 
University pro-duced an expanded description of the four charges:
 
   1. Hazing -- 8:30  [*7] a.m. on December 7, 2005 in the area of Fenwick 
Library on the George Mason Campus.
2. Providing alcohol to minors -- September 7, 2005.
3. Underage consumption of alcohol - September 7, 2005.
4. Sponsoring a party un-der conditions that resulted in sexual assault/s on 
a fe-male guest. February 26, 2005 and September 7, 2005[.]

 
Def. Exhibit 19. Charges two, three, and four implicated the two off-campus 
parties discussed above. Based on evi-dence presented to the Sexual Assault 
Hearing Panels, the University had concluded that the events were 
frater-nity-related given the identity of the occupants of the house and the 
at-tendees, and further determined that the two underage female victims had 
been served alcohol at those events. 6 See Patterson Decl. PP 13, 20; 
Mul-herin Decl. P 19; see also Patterson Dep. 63. 

6   The Chapter did not partici-pate in those earlier discipli-nary 
proceedings.
On March 10, 2006, Mulherin offered to resolve the outstanding charges with a 
two-year suspension. See Mul-herin Decl. P 23. The Chapter declined based on 
its belief that the Univer-sity had violated certain procedural protections. 
See
 Benedetto Decl. P 22.
On May 4, 2006, the University con-vened a panel of the Student  [*8] 
Ju-dicial Board to address the allega-tions against the Chapter. 7 After a 
five-hour hearing, the panel found the Chapter responsible for hazing based 
on the testimony of Guobadia and Pat-terson, and it found the Chapter 
re-sponsible for "providing alcohol to minors" and "sponsoring a party under 
conditions that led to sexual as-sault/s" based on the evidence pre-sented 
during the hearing as well as on facts found in the earlier disci-plinary 
hearings. The Board recom-mended that the Chapter be suspended for 10 years, 
that current members of the Chapter be prohibited from associ-ating with any 
fraternal organization recognized by the University, and that the University 
publish the fact that it was withdrawing recognition of the Chapter. See Def. 
Exhibit 21. Patter-son adopted those recommendations. See Def. Exhibit 22. 

7   The Student Judicial Board is comprised of three to five stu-dents. See 
Mulherin Decl. P 14. The University's designee and the accused are each 
permitted to make an opening and closing statement and present evidence. Id. 
P 15.
The Chapter appealed the panel's decision to Sandy Hubler, the Vice President 
of University Life. See Plt. Exhibit U. In a one-page letter dated June 2,  
[*9] 2006, Hubler upheld the decision, concluding that the Chapter "failed to 
provide new evidence, iden-tify a defect in the proceedings, or specify a 
standard of fairness that was abridged." Plt. Exhibit V.
In August 2006, the Director of Ju-dicial Affairs, David Shaw, brought new 
charges against six Chapter mem-bers for failing to comply with a uni-versity 
official, unauthorized use of the University logo and name, and failure to 
comply with an official ju-dicial sanction. See Plt. Exhibit Y. After a 
series of administrative hear-ings, Shaw adjudicated each member re-sponsible 
for at least one of the charges. The specific charges against plaintiff 
Pietro were initiated by Guobadia after she observed him at-tending an 
orientation carnival while wearing his Sigma Chi letters. See Shaw Dep. 15. 
The other charges were initiated after members of the Chapter announced plans 
to host an off-campus golf tournament and a Brotherhood Day. See Pietro Decl. 
P 6. Shaw placed the six members on a one-year probationary status, thereby 
prohibiting them from participating in any university-sponsored 
extracurricular activities. 8 

8   In its memorandum, the Chap-ter complains about other actions taken by 
the University  [*10] after August 31, 2007 -- the date the complaint was 
filed. However, the Chapter never filed an amended complaint and, therefore, 
never added these new allegations and claims. For this reason, these matters 
are not before the Court and will not be addressed in this memorandum opinion.
On August 31, 2007, the Chapter, Duckwitz, and Pietro filed the present 
action under 42 U.S.C. ß 1983, alleg-ing violations of due process, free 
speech, free association, equal pro-tection, breach of contract, conspir-acy, 
and supervisory liability. They requested monetary and injunctive re-lief.
On September 14, 2007, the plain-tiffs' motion for a preliminary in-junction 
was denied, and on November 9, 2007, the University was dismissed as a 
defendant and the breach of con-tract claim was dismissed from the complaint. 
Both parties have filed cross motions for summary judgment.

Standard of Review 
Summary judgment is appropriate if there is no genuine issue as to any 
material fact and the moving party is entitled to judgment as a matter of 
law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 
(1985). In ruling on a motion for sum-mary judgment, a court should accept 
the evidence of the nonmovant,  [*11] and all justifiable inferences must be 
drawn in his favor. Anderson v. Lib-erty Lobby, Inc., 477 U.S. 242, 255 
(1986).

Discussion 
Three substantive counts remain in this litigation: Count I (Due Proc-ess); 
Count III (First Amendment); Count IV (Equal Protection).

I. Due Process 
The Chapter first alleges viola-tions of its right to procedural due process. 
9 To succeed on this claim, "a litigant must show that it was de-prived of a 
protected interest without due process of law." Palmer v. City Nat'l Bank of 
W. Va., 498 F.3d 236, 248 (4th Cir. 2007). This inquiry pro-ceeds in several 
stages. First, the Chapter must identify a cognizable protected interest. 
Second, the Chap-ter must demonstrate that the Univer-sity has deprived it of 
that interest. Third, the Chapter must show that the procedures employed by 
the University to deprive it of that interest were constitutionally 
inadequate. 

9   In its complaint, the Chapter also alleges a violation of sub-stantive 
due process because "[d]efendants . . . prohibit[ed] Sigma Chi from 
exercising its liberty interest in free associa-tion." Compl. P 72. This 
claim fully overlaps with the Chapter's invocation of the right to free 
association under the First Amendment.  [*12] Accordingly, the Chapter's 
substantive due process claim is not cognizable. See Presley v. City of 
Char-lottesville, 464 F.3d 480, 491 (4th Cir. 2006) ("[S]ubstantive due 
process cannot independently support a claim when an explicit textual source 
of constitutional protection governs the precise conduct at issue.") 
(internal quotation and citation omitted).

A. Cognizable Liberty Interest 
A cognizable liberty interest "may arise from the Constitution itself, by 
reason of guarantees implicit in the word 'liberty,' or it may arise from an 
expectation or interest created by state laws or policies." Wilkinson v. 
Austin, 545 U.S. 209, 221 (2005) (in-ternal citations omitted). The state law 
inquiry is fairly straightforward. The record contains no indication of any 
official policies, guidelines, laws, or state regulations that re-quire the 
University to recognize stu-dent organizations. See Mulherin Decl. P 10. 
Rather, it appears that official recognition -- eligibility, criteria, 
required forms, etc. -- is committed entirely to the discretion of the 
Uni-versity's Office of Student Activi-ties.
The constitutional inquiry is more complex. The Chapter invokes its 
pro-tected liberty interest in the expres-sive  [*13] associational rights of 
its members. Under the First Amend-ment, the State may not "impose li-ability 
on an individual solely be-cause of his association with an-other." NAACP v. 
Claiborne Hardware Co., 458 U.S. 886, 918-19 (1982). This right "is an 
inseparable aspect of the 'liberty' assured by the Due Process Clause." 
Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214 (1986) 
(citation omitted).
The University opposes this argu-ment on the ground that fraternities are 
purely social in nature and, therefore, fall outside the protection of the 
freedom to associate. The Su-preme Court has recently addressed and rejected 
this position. In Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000), the Court 
held that "a group must en-gage in some form of expression, whether it be 
public or private," to come within the ambit of the First Amendment's 
protection of expressive association. Id. at 648. It then con-cluded that the 
Boy Scout's stated mission -- "to instill values in young people" -- 
constituted expressive as-sociation. Id. at 650 ("It seems in-disputable that 
an association that seeks to transmit such a system of values engages in 
expressive activ-ity.").
To that end, a college fraternity  [*14] is no different from the Boy Scouts. 
The Chapter has adequately de-scribed its institutional mission to inculcate 
its members with certain leadership skills and community values and, as a 
result, it is protected by the First Amendment's expressive asso-ciational 
right. See Benedetto Decl. PP 6-7. Accordingly, the Chapter has adequately 
alleged a protected liberty interest. 10 

10   Based on this conclusion, the Court need not address the merits of the 
Chapter's argument that it has a protected liberty interest in its reputation.

B. Deprivation of Interest 
The Chapter must next show a depri-vation of the right of its members to 
freely associate. In this vein, the University argues that its withdrawal of 
official recognition did not in anyway harm the right of Chapter mem-bers to 
associate with each other.
The University's position is cor-rect. The withdrawal of recognition did not 
in and of itself deprive Chap-ter members of their First Amendment rights. 
Nothing in the University's sanction prevents the Chapter from continuing to 
exist. It may recruit current George Mason students as mem-bers, schedule 
meetings, and host so-cial events. 11 The withdrawal of offi-cial recognition 
simply removes the  [*15] imprimatur of the University from the Chapter's 
activities and de-nies the Chapter use of the Univer-sity's name, resources, 
and property. Although the Chapter may become a less attractive organization 
as a result of losing official recognition, the Uni-versity's action does not 
deprive Chapter members of their constitu-tional right to associate with each 
other.

11   Indeed, the Chapter still recruits members, holds regular meetings, and 
hosts parties. See Duckwitz Dep. 54-55; Pietro Dep. 87.
The University imposed other sanc-tions on the Chapter's members. Nota-bly, 
the Student Judicial Board recom-mended, and the University adopted, "[a] 
prohibition preventing current members of Sigma Chi from belonging to any 
fraternal organization recognized by the University." Def. Exhibit 21; see 
also Def. Exhibit 22 ("The Dean of Students and the Director of Student 
Activities are asked to monitor mem-bership in George Mason University 
recognized fraternal organizations to insure that the current membership of 
Sigma Chi fraternity does not re-emerge under another name."). Members 
violating this restriction are subject to further disciplinary action. Id.
A Chapter member is therefore pro-hibited from joining  [*16] any recog-nized 
fraternal organization on the George Mason campus, even if that or-ganization 
would welcome his member-ship. This restriction constitutes a deprivation of 
the Chapter members' right to expressive association. Cf. United States v. 
Hammoud, 381 F.3d 316, 329 (4th Cir. 2004) (asking whether the restriction in 
question "prohibit[s] mere association" with an organization). For this 
sanction to pass constitutional muster, the Uni-versity must satisfy the 
minimum re-quirements of due process.

C. Due Process Afforded 
The final matter before the Court is whether, in light of the interests at 
stake, the University afforded the Chapter sufficient process before 
im-posing the disciplinary sanctions at issue. To demonstrate that it was not 
afforded adequate process, the Chapter alleges numerous deviations from, or 
noncompliance with, the procedural protections listed in the University's 
Judicial System for Student Conduct ("JSSC") (June 24, 2004). 12 

12   For instance, the Chapter alleges that it was denied prompt notice of 
charges, the right to a decision based on clear and con-vincing evidence, the 
right to have a case processed without prejudicial delay, and the right to an 
appeal. See JSSC  [*17] ß V. It is not clear that the JSSC grants such rights 
to the Chap-ter. The JSSC's procedural stan-dards are only "guaranteed to a 
student in any university disci-plinary proceeding." Id. (empha-sis added). 
This language plainly excludes organizational entities.
The Chapter's reliance on the pro-cedural guarantees in the JSSC is en-tirely 
misplaced because a univer-sity's failure to respect its own pro-cedural 
protections is not a fortiori a violation of due process. See Flaim v. Med. 
Coll. of Ohio, 418 F.3d 629, 640 (6th Cir. 2005); Trotter v. Re-gents of the 
Univ. of N.M., 219 F.3d 1179, 1185 (10th Cir. 2000); Schuler v. University of 
Minn., 788 F.2d 510, 515 (8th Cir. 1986); Hill v. Trustees of Ind. Univ., 537 
F.2d 248, 252 (7th Cir. 1976). 13 The only question before the Court is 
whether, from a constitu-tional standpoint, the Chapter re-ceived adequate 
process. 

13   In some cases, "significant departures from stated procedures of 
government" may constitute a violation of procedural due proc-ess. Jones v. 
Bd. of Governors of Univ. of, N.C., 704 F.2d 713, 717 (4th Cir. 1983). 
Assuming ar-guendo that the Chapter was enti-tled to the procedural 
protec-tions in the JSSC and that the University departed  [*18] from those 
protections, the departures were not "sufficiently unfair and prejudicial" as 
to give rise to a procedural due process claim. Id.
The Fourth Circuit has provided clear guidance on this issue. In the 
university disciplinary setting, due process requires "only that [students] 
be afforded a meaningful hearing." Ti-grett v. Rector & Visitors of Univ. of 
Va., 290 F.3d 620, 630 (4th Cir. 2002). A "meaningful hearing" requires 
notice and a meaningful opportunity to be heard. Id. As a corollary to these 
requirements, the disciplinary panel's decision cannot be arbitrary; rather, 
the panel must base its decision on some evidence in the record. Cf. Baker v. 
Lyles, 904 F.2d 925, 931-32 (4th Cir. 1990) (summarizing due process 
standards in the prison context).
1. Notice
The Chapter attacks the adequacy of the University's notice of discipli-nary 
charges by arguing that the most serious charge -- "sponsoring a party under 
conditions that led to sexual assault/s of a female guest" -- was not lodged 
until one year after the alleged conduct in one instance, and nearly seven 
months in the other. How-ever, the Chapter fails to detail how these delays 
prejudiced the prepara-tion of its defense.
The  [*19] Chapter also attacks the vagueness of the charge, which did not 
identify or explain the "conditions" that led to the sexual assaults or how 
the chapter was responsible for those assaults. Although the charge may not 
be a model of clarity, a reasonable person, upon reading the entire list of 
charges, would understand the na-ture of the University's allegations -- that 
the Chapter irresponsibly hosted social events where alcohol was served to 
underage guests, whose ine-briation contributed to the later sex-ual 
assaults. See Richardson v. Town of Eastover, 922 F.2d 1152, 1160 (4th Cir. 
1991) ("[D]ue process requires notice reasonably calculated, under all the 
circumstances, to apprise in-terested parties of the pendency of the action . 
. . .") (internal quota-tions and citation omitted). An exami-nation of the 
hearing transcript dem-onstrates that the Chapter adequately understood the 
nature of these charges.
Lastly, the Chapter complains that Patterson and Mulherin failed to pro-vide 
the Chapter notice of "secret charges" -- allegations about the ca-serace 
party and other purported mis-conduct by the Chapter. However, there is no 
evidence in the record that the adjudicators -- the three members  [*20] of 
the Student Judicial Board -- were aware of or based their decision on events 
not listed in the notice of charges. The evidence presented at the hearing 
was also constrained to those four charges.
The University's notice was defi-cient in one respect; it listed the Fenwick 
Library incident as the only hazing charge, omitting the second al-leged 
hazing incident involving the pledge who was prevented from return-ing to his 
residence to collect an as-signment. See Def. Exhibit 19. Accord-ingly, the 
Chapter did not receive adequate notice of the second alleged hazing 
activity. Outside of that one deficiency, the University's notice of charges 
was constitutionally adequate.
2. Meaningful Hearing
The Chapter asserts a number of procedural irregularities with the 
University's hearing process, most of which lack constitutional 
signifi-cance. 14 

14   The Chapter complains that Patterson inadequately investi-gated the 
reports of hazing, that Patterson's charging decision was overly harsh and 
animated by an improper motive, that the Student Judicial Board failed to use 
a "clear and convincing" standard, that the hearing was closed to the public, 
and that Vice Presi-dent Hubler failed to conduct an impartial  [*21] 
appellate review of the Board's decision. The Chapter does not offer, nor can 
the Court locate, any authority supporting its position that stu-dents at an 
educational institu-tional are entitled to a neutral charging official, a 
particular standard of evidence, an open hearing, or appellate review.
The transcript of the disciplinary hearing demonstrates that the Student 
Judicial Board allowed the Chapter to make an opening and closing statement, 
present witnesses and evidence, and conduct limited cross examinations of the 
University's witnesses. In the Fourth Circuit, these procedures are generally 
sufficient to satisfy due process in a school disciplinary set-ting. See 
Tigrett, 290 F.3d at 630.
The Chapter raises one colorable challenge to the adequacy of the hear-ing. 
At the request of the University, the Student Judicial Board accepted the 
fact of the two earlier sexual as-saults, thereby preventing the Chapter from 
offering evidence that would dis-prove or cast doubt on the occurrence of 
those assaults. The Chapter con-tends that this restriction deprived it of 
its right to a meaningful hear-ing.
The Supreme Court, in Mathews v. Eldridge, 424 U.S. 319 (1976), identi-fied 
three factors in determining  [*22] the constitutional adequacy of a 
particular hearing:
 
   First, the private inter-est that will be affected by the official action; 
second, the risk of an erroneous deprivation of such interest through the 
procedures used, and the probable value, if any, of additional or sub-stitute 
procedural safe-guards; and finally, the Government's interest, in-cluding 
the function in-volved and the fiscal and administrative burdens that the 
additional or substitute procedural requirement would entail.

 
Id. at 335. The Court concludes that the three Mathews factors substantiate 
the Student Judicial Board's decision to prohibit the Chapter from 
reliti-gating the fact that the sexual as-saults had occurred. First, the 
pri-vate interest at stake is less serious than in traditional due process 
chal-lenges. Chapter members did not face expulsion or suspension, nor were 
they subjected to a significant fine or fi-nancial burden as a result of the 
Uni-versity's sanctions. Rather, members simply faced a restriction on their 
ability to participate in on-campus extracurricular activities.
Second, the risk of an erroneous deprivation is fairly minimal. The Student 
Judicial Board accepted the fact of the sexual assaults based  [*23] on the 
results of two prior dis-ciplinary hearings. In both cases, the accused 
students -- a member of the Chapter and the vice president of the Chapter -- 
appeared before the hearing panel with legal counsel. They were allowed to 
call fellow Chapter members as witnesses and present evidence to support 
their positions. Ultimately, the panel found the students responsi-ble for 
the assaults. Neither individ-ual appealed the determination, nor sought 
relief in federal court. Those two individuals had the greatest in-centive to 
disprove the occurrence of the assaults and failed to do so. Based on these 
undisputed facts, the Student Judicial Board could reasona-bly conclude that 
those earlier pro-ceedings bore particular indicia of reliability. It is also 
significant that the Chapter was not denied the right to present evidence 
that would have distanced the organization from the assaults -- i.e., that 
the Chapter did not serve alcohol to the underage female victims, that it 
verified the ages of party attendees, and that it offered adequate 
supervision of at-tendees.
Third, the University has a sub-stantial interest in protecting the details 
of the sexual assaults so as to avoid undue embarrassment  [*24] and public 
exposure of the victims. Allowing the Chapter to rebut the ex-istence of the 
assaults at the hearing would have required a full-scale re-litigation of 
those incidents. Such relitigation would have obscured the greater issue of 
the Chapter's respon-sibility for serving alcohol to under-age guests, 
imposed additional costs and burdens on the University, and, most 
importantly, forced the two fe-male victims to again testify in de-tail as to 
the nature and circum-stances of the sexual assaults. 15 

15   The two female victims tes-tified at the Chapter's discipli-nary hearing 
as to the fact of the assaults, but did not offer specific details about the 
inci-dents. See Def. Exhibit 14, part 2, at 13, 37.
Applying the three Mathews factors, the Court finds that the Student 
Judi-cial Board's decision to accept the fact of the two sexual assaults as 
conclusively established did not de-prive the Chapter of its right to due 
process.
Finally, although the Student Judi-cial Board did constrain some of the 
Chapter's questioning of the witnesses and its arguments, many of those 
lim-its were imposed in response to the belligerent conduct of the Chapter's 
representative. The transcript reveals that the Chapter's  [*25] 
representa-tive was obstinate and combative throughout the hearing, refusing 
to follow the instructions of the Board or focus his presentation on the 
charges at issue. To the extent that the Chapter now complains that its 
de-fense was unduly prejudiced by these constraints, it can only blame itself.
3. Reasonable Decision
Finally, the Student Judicial Board's decision must be supported by some 
evidence in the record. Although the University's hazing determination was 
arbitrary and without evidentiary support, 16 the University had an ade-quate 
and independent justification for its disciplinary action. Specifi-cally, 
there was extensive, reliable evidence that underage George Mason students, 
including the two female victims, were served alcohol at two separate 
Chapter-sponsored parties and that some students experienced severe 
intoxication. 17 

16   University presented no evi-dence that the Fenwick Library incident on 
December 7, 2005 was hazing. The University's sole witness, Michelle 
Guobadia, could not even make out the students' words. See Guobadia Decl. P 
18. Rather, the University relied en-tirely on the conformity of the 
participants' dress, gait, and chant to substantiate its charge. Nothing  
[*26] in the record sug-gests that the event was abusive, embarrassing, or 
harmful to those involved. Indeed, many collegiate activities -- marching 
band and ROTC drills -- share the same characteristics. Furthermore, in this 
litigation, the University has repeatedly characterized the event as 
"spontaneous singing and dancing," which suggests an ab-sence of any 
coercion. See, e.g., Def. Mem. in Support [76], at 23.

17   See, e.g., Def. Exhibit 8 (Statement of J. Arico) ("By 11:00pm that 
night, [redacted] was so drunk that she was in the bathroom throwing up. . . 
. We were worried that [redacted] would fall and break her neck or would pass 
out down there and choke on her own vomit.").
Furthermore, as discussed above, the Student Judicial Board took notice of 
the earlier disciplinary findings that two sexual assaults occurred in the 
vicinity of these parties. This record established an evidentiary ba-sis upon 
which the Student Judicial Board could reasonably conclude that the events 
and atmosphere of the Chap-ter-sponsored parties were contribut-ing factors 
to the sexual assaults. 18 

18   For instance, the Board heard evidence that party at-tendees distracted 
the boyfriend of one female victim while the  [*27] sexual assault was 
occur-ring. See Def. Exhibit 14, part 2, at 49-50.
Moreover, it was entirely reason-able for the University to classify these 
events as antithetical to its educational mission and the safety of its 
students. On this record, the de-cision to hold the Chapter accountable for 
its members' misconduct during the two off-campus parties was hardly 
ar-bitrary. Accordingly, summary judgment in favor of the University on the 
due process claim is appropriate.

II. First Amendment 
The Chapter contends that the Uni-versity impermissibly punished and 
re-taliated against its members for en-gaging in protected expression, 
spe-cifically for singing and dancing in front on Fenwick Library, objecting 
to the University's disciplinary process, and displaying Sigma Chi letters on 
their clothing.

A. Singing and Dancing Near Fenwick Library 
The Chapter asserts that the Uni-versity could not, consistent with the First 
Amendment, discipline it for the Fenwick Library incident, where 
par-ticipants engaged in spontaneous sing-ing and dancing. The Court agrees 
that this activity is protected under the First Amendment, 19 but concludes 
that the Chapter lacks Article III standing to pursue this claim.

19   The undisputed  [*28] evi-dence shows that the participants were 
collectively singing, see Pietro Dep. 67; Plt. Exhibit F, which is sufficient 
to undergird a free expression claim. See Ward v. Rock Against Racism, 491 
U.S. 781, 790 (1989). Furthermore, the University's observation that the 
activity was not performed for an audience is without significance. The First 
Amendment extends to intra-organization discussion, debate, or song.
To have standing to bring a law-suit, a plaintiff must allege a "per-sonal 
injury fairly traceable to the defendant's allegedly unlawful conduct and 
likely to be redressed by the re-quested relief." Allen v. Wright, 468 U.S. 
737, 751 (1984). With respect to the redressability prong, it must be 
"likely, as opposed to merely specula-tive, that the injury will be 
re-dressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw 
Envtl. Servs., Inc., 528 U.S. 167, 181 (2000).
Even if the Chapter were to prevail on the merits of its First Amendment 
claim, it would not be entitled to any relief, monetary or injunctive. As 
discussed above, the University's sanctions are fully supported by an 
adequate and independent justification -- the determination that the Chapter 
irresponsibly  [*29] hosted two off-campus parties. The disciplinary proc-ess 
for those charges was initiated on December 8, 2005, within a day of the 
Fenwick Library incident.

B. Retaliation for Opposing Discipli-nary Process 
The Chapter next argues that the University unlawfully retaliated against it 
for challenging alleged procedural deficiencies in the disci-plinary process. 
After the Chapter de-clined Mulherin's offer of a two-year suspension, the 
University pursued a far more severe sanction -- withdrawal of official 
recognition and a 10-year ban -- against the Chapter.
This claim is without. The Univer-sity is entitled to impose any sanc-tion 
permitted by its own rules and regulations. As part of its discretion to 
select the appropriate sanction, the University may offer a compromise plea 
bargain to the accused in hopes of reaching a timely and amicable set-tlement 
of the charges, sparing the expense of a hearing, and, as this case 
demonstrates, avoiding time-consuming litigation in federal court. If the 
accused rejects the offer, the University is not foreclosed from seeking a 
more severe penalty. 20 

20   In the criminal context, a prosecutor is free to indict a defendant on 
more serious charges if the defendant  [*30] insists on his right to a jury 
trial. See United States v. Hill, 2004 WL 691509, at *4 (4th Cir. Apr. 2, 
2004) (unpublished) ("[T]he prosecutors indicted defendants on more serious 
charges after the defendants rejected plea bar-gains. . . . [N]o presumption 
of vindictiveness arose because in the 'give-and-take' of plea bar-gaining, 
there is no retaliation so long as the defendant remains free to accept or 
reject the plea.") (citation omitted).

C. Wearing Sigma Chi Letters 
The Chapter alleges that the Uni-versity infringed on two Chapter mem-bers' 
right to free expression by pun-ishing them for wearing their Sigma Chi 
letters into a public university building. The claim cannot be prose-cuted in 
this litigation because the proper party has not been named as a defendant. 
David Shaw, the director of judicial affairs, administratively ad-judicated 
the charges related to the members' display of Sigma Chi letters and imposed 
the allegedly unconstitu-tional sanction. He was not named in the Chapter's 
complaint. Cf. Moore v. Pemberton, 110 F.3d 22, 23 (7th Cir. 1997) (per 
curiam) ("[T]he right de-fendants in a ß 1983 suit are the per-sons whose 
wrongful acts harmed the plaintiff.").
Accordingly, summary  [*31] judg-ment will be granted to the University on 
the Chapter's First Amendment claim.

III. Equal Protection 
The remaining equal protection claim must be dismissed because the Chapter 
failed to explain how it was treated differently than other simi-larly 
situated organizations.

IV. Remaining Counts 
Having found no underlying consti-tutional violations, the Court will grant 
summary judgment to the Univer-sity on Count V (Supervisory Liabil-ity) and 
Count VI (Conspiracy).

Conclusion 
For the reasons stated in open court as supplemented in this memoran-dum 
opinion, plaintiffs' Motion for Summary Judgment will be denied and the 
defendants' Motion for Summary Judgment will be granted.
A separate order consistent with this opinion will be entered.
Entered this 10th day of March, 2008.
/s/ Leonie M. Brinkema
Leonie M. Brinkema
United States District Judge
Alexandria, Virginia