*127Justin Dillon, Christopher C. Muha, Kaiser Dillon, PLLC, Washington,
DC, for Plaintiff., Jason Alexander Ross, Saul Ewing Arnstein & Lehr LLP, Washington,
DC, James Keller, Pro Hac Vice, Joshua W.B. Richards, Pro Hac Vice, Saul Ewing Arnstein
& Lehr LLP, Philadelphia, PA, for Defendant., Most immediately, Mr. Doe seeks a
preliminary injunction to enjoin his suspension until this matter can be litigated
to its conclusion. He explains that he has only until April 27, 2018 to assure a
graduate program, from which he has received a provisional offer of admission, that
he will receive his diploma in May 2018, or else that school may withdraw its acceptance.
See Pl.'s Mot. for Prelim. Injunction (Mot. PI) [Dkt. 6]; Suppl. Decl. of John
Doe (Doe Suppl. Decl.) [Dkt. 24]. The matter is fully briefed and the Court heard
oral argument.1 Because Mr. Doe has not demonstrated that he would suffer irreparable
harm in the absence of a preliminary injunction, a necessary predicate for injunctive
relief, Mr. Doe's motion will be denied. To allow timely consideration of Mr. Doe's
claims on the merits, the Court will convene a prompt status conference to set a
schedule for expedited discovery and briefing., GW initiated an investigation through
which it conducted interviews and a hearing before a panel composed of a GW undergraduate
student, a GW law student, and a GW administrator whose title is "Director of Greek
Life." Id. ¶ 102. These proceedings were conducted pursuant to GW's Sexual Harassment
and Sexual Violence Policy (the Policy) and its Code of Student Conduct (the Code).2
The record is not clear as to whether either Ms. Roe or Mr. Doe was represented
by counsel during the investigation and proceedings, although each had an "advisor,"
for purposes of "advice and consultation," present during the hearing. See Opp'n,
Sealed Ex. A (Hearing Transcript) [Dkt. 18-2] at 5., In her charge, supplemental
submissions, and hearing testimony, Ms. Roe stated that she drank a large quantity
of alcohol over the course of the night; before the hearing panel, she quantified
her drinking to "over ten drinks" in two-and-one-half hours, much of it before she
joined the party where she encountered Mr. Doe. Mot. PI at 11. Mr. Doe contests
Ms. Roe's account of her alcohol consumption that night, and disputes the hearing
panel's conclusion that Mr. Doe should have known that Ms. Roe was too intoxicated
to consent to sex. He emphasizes that Ms. Doe's account of what she drank, and
when, became more specific in each statement between the time she filed her initial
complaint and the time of her testimony at the hearing, which he argues suggests
that her testimony was incorrect and at least should have raised questions about
her credibility, see id. ; he contends that it is almost physically impossible for
Ms. Roe to have consumed as much liquor as her testimony suggested. See Compl. ¶
7. Mr. Doe also argues that various other aspects of Ms. Roe's allegations were
inconsistent. See, e.g., id. ¶ 82 ("And she again stated that she took the stairs.
This time, however, she added a detail that it is impossible to believe she only
just remembered: that she 'remember[s] falling down the stairs as [she] exited.'
She failed to explain how it was possible that she fell down only once in that state.").,
In addition, Mr. Doe challenges the testimony of E.E., Ms. Roe's friend, who told
the panel that she spoke with Ms. Roe during the Uber ride to the dorm and that
Ms. Roe slurred her speech and sounded "extremely intoxicated, over the phone, and
like barely conscious." Id. ¶ 110; Opp'n at 29 (summarizing E.E.'s testimony before
the panel); see also Mot. for Discovery Prior to Rule 26(f) Conference (Discovery
Mot.) [Dkt. 9] (describing the value of E.E.'s testimony to the case against Mr.
Doe). Mr. Doe has no recollection of Ms. Roe having a phone conversation during
the Uber ride, and argues here that E.E. fabricated the story to assist Ms. Roe.
See Discovery Mot.; Compl. ¶¶ 89-95. Mr. Doe asserts without contradiction that
he did not, and does not, drink for religious reasons., Mr. Doe did not cross-examine
E.E. at the hearing but he did contest her testimony when he spoke to the panel,
including by raising his recollection that Ms. Roe had not spoken to E.E. on the
phone during the Uber ride. See Def.'s Mot. in Limine [Dkt. 23] at 4; Hearing Transcript
at 65. In this litigation, the Court allowed Mr. *130Doe to serve a third-party
subpoena to obtain E.E.'s cellphone records for the relevant time frame, to determine
whether a conversation took place at all. As discussed below, those records do not
show that E.E. made or received a telephone call during the relevant time period.
GW has filed a motion in limine to preclude introduction of E.E.'s cellphone records,
arguing that because they were not before the hearing panel they are irrelevant
to its processes or findings. See Def.'s Mot. in Limine ., Based on the perceived
weaknesses and inconsistences in the testimonies of Mses. Roe and E.E., and the
alleged bias of the proceedings, Mr. Doe argues that it was unreasonable for the
hearing panel to conclude that he was responsible for sexual assault., Further,
Mr. Doe alleges that GW exhibited gender bias against him and in favor of Ms. Roe,
which resulted in unfair treatment by the hearing panel and by the administrator
who denied his appeal. He points to the panel's limiting his ability to cross-examine
witnesses and to ask certain relevant questions, and he complains that the University's
Title IX investigator is a woman whose professional background, and possibly current
private practice, is in advocacy for victims of sexual assault, not in neutral evaluations
of evidence. Mr. Doe alleges that GW has faced "relentless pressure" since 2011-from
the Department of Education's Office for Civil Rights (OCR) and from its own students-to
respond more vigilantly to sexual assault claims. Compl. ¶¶ 8-9. Mr. Doe also alleges
that the University has publicly touted "its 100% conviction rate of respondents
put through its formal sexual misconduct process, all of whom are believed to be
male." Id. ¶ 8; Mot. PI at 5. He cites a "Message from University Administrators,"
that was available contemporaneously on a GW website, which stated: "During the
last two academic years (2015-16 and 2016-17 to date), 16 reported cases resulted
in formal complaints, 10 went before a hearing board and are concluded. Four of
these [10] cases resulted in an expulsion, five resulted in a suspension, and one
resulted in a deferred suspension." Mot. PI, Ex. 7, GW Today, Message from University
Administrators (Apr. 21, 2017) [Dkt. 6-8] at 3; see also https://gwtoday.gwu.edu/message-university-administrators
(last visited Apr. 23, 2018). From this message, Mr. Doe deduces a conviction rate
of 10-for-10 of those who presented a defense to a hearing panel., The University
informed Mr. Doe on January 23, 2018 that he had been found responsible for sexually
assaulting Ms. Roe and would be suspended for one year, after which time he would
receive his degree. See Compl. ¶¶ 118-23 (describing the findings). Mr. Doe filed
an appeal as allowed by the Code and offered in support (1) an expert toxicology
statement suggesting that Ms. Roe had to have exaggerated the amount of alcohol
she had consumed on the night in question, and (2) a statement from another student
who had spoken to Ms. Roe that night and found her to be "normal" and "lucid," and
that she had kissed Mr. Doe in public at the party before they left together. Id.
¶¶ 124-27. The appeal was rejected on the grounds that Mr. Doe "[had] not met the
requirements for an appeal" under the Code, id. ¶ 130-31, i.e. , he had not presented
relevant " 'new information ... that was not previously presented at the hearing.'
" Mot. PI at 14 (quoting GW Code ¶ 33)., A. Motion for Preliminary Injunction, The
relationship between GW and Mr. Doe, at least insofar as that relationship is governed
by the University's Code and Policy, is contractual in nature and permits suit
for its breach. Chenari v. George Washington Univ. , 847 F.3d 740, 744 (D.C. Cir.
2017) ("Under District of Columbia law, which governs here, the relationship between
a university and its students is contractual in nature.") (citations omitted); see
also Alden v. Georgetown Univ. , 734 A.2d 1103, 1111 n.11 (D.C. 1999) ; Pride v.
Howard Univ. , 384 A.2d 31, 34 (D.C. 1978) ; Basch v. George Washington Univ. ,
370 A.2d 1364, 1367 (D.C. 1977). While GW contests this relationship, both the D.C.
Court of Appeals and the D.C. Circuit are clear on it. The Court finds that Mr.
Doe's objections to the disciplinary hearing are insufficient to support a preliminary
injunction but that he is likely to succeed on the merits of his claim that GW mishandled
his appeal and thereby violated its contract., Mr. Doe contends that the panel's
conclusion that he was responsible for sexual assault violated the University Policy
and Code and thereby breached the parties' contract and the covenant of good faith
and fair dealing that is implied in every contract because these decisions were
arbitrary, capricious, and without a reasoned basis. He argues that there was no
credible evidence that Ms. Roe was actually so intoxicated that she was unable to
consent, or, critically, that she appeared that way to Mr. Doe. He contends that
the hearing panel ignored evidence that cast doubt on Ms. Roe's account, including
inconsistencies in her testimony and that of E.E., and other witness testimony,
and that the panel was biased toward a preconceived conclusion. GW counters that
Mr. Doe has failed to show that the University departed from its policies in investigating
and sanctioning Mr. Doe and that he had full opportunity to object to the allegedly
contradictory evidence but failed to do so at the hearing. It argues that the totality
of the evidence presented to the hearing panel reasonably supports its conclusion
that Ms. Roe's account was credible and that Mr. Doe was responsible, and that
the panel explained its findings in writing. The University flatly disputes the
argument that Ms. Roe's testimony was self-contradictory, arguing that the record
shows only that her recollections and testimony became more detailed as the investigation
progressed., Under the mandatory standards for a preliminary injunction, the Court
agrees with the University that Mr. Doe has failed to demonstrate that he is likely
to succeed on the merits that the investigation and hearing panel processes were
so unreasonable that they constituted a breach of contract or the implied duty of
good faith and fair dealing. The processes required by the Policy and the Code were
followed. The panel heard from several *132witnesses whom it apparently credited
and who testified that Ms. Roe had consumed large quantities of alcohol at a "pre-game"
party and had appeared drunk shortly before her arrival at the party or during it.
The Court does not rule on this argument because the parties have yet to engage
in discovery; it finds only that the evidence is insufficient to support a preliminary
injunction., GW argues that the denial of Mr. Doe's appeal was proper and did not
breach any contract. It maintains that both the expert report on Ms. Roe's state
of intoxication and the student affidavit were not "new evidence" because the hearing
panel could decide the question of drunkenness based on witness testimony and the
additional witness affidavit could have been submitted at the hearing. At oral argument,
as it argued in its brief in opposition, GW explained that the term "new information"
in the Code means only brand-new, previously unavailable evidence that could not
have been presented at the hearing. See Opp'n at 21 (characterizing the Code as
requiring that "new information," for purposes of justifying an appeal, "could not
have been previously submitted") (emphasis added). This argument contradicts the
facts and the plain language of the Code. Mr. Doe's expert report was based on
information that Mr. Doe learned only at the hearing, when Ms. Roe testified for
the first time to the quantity of alcohol she had consumed, and contained new information
about alcohol toxicity that had not been "previously presented at the hearing."
GW Code ¶ 33. By any standard, this was "new information" that could not have been
presented at the hearing, since it was based on Ms. Roe's quantification of her
alcohol consumption during the hearing, as to which her prior statements were silent.
Thus, while the hearing panel interpreted the testimony concerning Ms. Roe's alcohol
consumption, the expert's opinion might have affected the panel's evaluation of
her testimony. The expert opined that had Ms. Roe consumed the amount of alcohol
to which she testified she may have experienced *133"substantial motor impairment,
total memory loss," and other extremely serious symptoms. Sealed Expert Report at
9. The fact that some testimony on the topic was presented does not mean, as the
University would have it, that contrary testimony was not "new" and was unworthy
of attention on appeal., Mr. Doe presents facts and circumstances from which he
contends that GW's processes were biased. GW presents facts and circumstances which
counter these allegations. The Court will not belabor all of the parties' arguments.
However, Mr. Doe emphasizes that OCR was actively investigating the University for
its alleged failure to hold accountable perpetrators of sexual assault and GW had
experienced a disruptive student protest at graduation with the same message, shortly
before Ms. Roe filed her Title IX complaint. Both events, Mr. Doe argues, caused
public embarrassment for the University and caused it generally to have a bias against
males accused *134of sexual assault. In some cases, courts have indeed found that
such external pressure can support a "plausible inference of gender discrimination"
sufficient to deny a pre-discovery motion to dismiss. Doe v. Miami Univ. , 882 F.3d
at 594. This Court agrees that such an inference may forestall dismissal. However,
a plausible inference is not sufficient to show likelihood of success on the merits
as required for a preliminary injunction. The Court will deny the motion for preliminary
injunctive relief under Title IX., For similar reasons, Mr. Doe has failed to demonstrate
a likelihood of success on the merits under the D.C. Human Rights Act (DCHRA), D.C.
Code § 2-1401 et seq.3 DCHRA makes it "an unlawful discriminatory practice ... for
an educational institution" to "deny, restrict, or to abridge or condition the use
of, or access to, any of its facilities, services, programs, or benefits of any
program or activity to any person otherwise qualified, wholly or partially, for
a discriminatory reason," including a student's sex. D.C. Code § 2-1402.41(1).
DCHRA also provides that "[a]ny practice which has a discriminatory effect ... shall
not be deemed unlawful if it can be established that such practice is not intentionally
devised or operated to contravene the prohibitions of this chapter and can be justified
by business necessity." D.C. Code § 2-1401.03(a).4, The record reveals no facts
specific to Mr. Doe's claim that GW violated the DCHRA. Rather, he relies on the
evidence that the University had a bias against him, as a male student, and that
it mishandled the panel hearing and his appeal. As discussed above, only the evidence
concerning Mr. Doe's appeal shows a likelihood of success on the merits for purposes
of the motion for a preliminary injunction. While Mr. Doe may ultimately present
sufficient evidence to prove that the alleged bias against males led the University
to "deny, restrict, or to abridge" his right to a full consideration of his appeal,
the evidence to date does not meet the standard for preliminary relief., The second
necessary prerequisite to a preliminary injunction is a showing of irreparable harm
if an injunction is not granted. A plaintiff must demonstrate harm that is both
"certain" and "great." See, e.g., Chaplaincy of Full Gospel Churches v. England
, 454 F.3d 290, 297 (D.C. Cir. 2006) ; see also Save Jobs USA v. DHS , 105 F.Supp.3d
108, 114 (D.D.C. 2015) (ruling that plaintiff seeking a preliminary injunction must
establish "proof that [his] injury is certain, great and actual -not theoretical-and
imminent , creating a clear and present need for extraordinary equitable relief
to prevent harm"). Although Mr. Doe has demonstrated a likelihood of success on
one aspect of his breach of contract claim, he has failed to demonstrate irreparable
harm in the absence of a preliminary injunction, and therefore his case does not
warrant such extraordinary relief., Mr. Doe argues forcefully that a "gap" between
the date of his degree and the date he begins graduate school or meaningful *135post-graduate
employment will forever injure his record and require explanation of Ms. Roe's
accusation to any future school or employer even if he succeeds at this lawsuit.
However, the University will post-date Mr. Doe's diploma if he wins and a gap of
one year between college and graduate school is neither unusual nor necessarily
impactful. Compare King v. DePauw Univ. , No. 14-70, 2014 WL 4197507 (S.D. Ind.
Aug. 22, 2014) (finding that a rising college senior would likely suffer irreparable
harm if his suspension were not enjoined because it would cause "either a gap or
a senior-year transfer on his record"), with Walter v. Giuliani , No. 98-9011, 1998
WL 712423, *1 (2d Cir. 1998) (affirming the district court's denial of a preliminary
injunction to Police Academy applicants, based on precedent establishing "that a
year's wait to enter graduate school is insufficient to constitute irreparable
harm") (citing Doe v. New York Univ. , 666 F.2d 761, 773 (2d Cir. 1981) ("Ordinarily
a one-year delay in obtaining admission to a graduate school for the purpose of
pursuing professional studies, as distinguished from interruption or termination
of attendance already in progress, is insufficient to warrant an injunction in the
absence of other circumstances militating in favor of such relief.") ).