Last April we blogged about the lawsuit filed by Columbia student Paul Nungesser, who was accused of sexual assault by a fellow student, Emma Sulkowicz. After a university hearing failed to find Nungesser responsible, Sulkowicz protested by carrying her mattress in public. Nungesser sued the university for damages to his reputation arising from Sulkowicz’s protest. He argued that the university was deliberately indifferent to Sulkewicz’s harassment of him, and thus liable under Title IX.
As I predicted, the suit against the university was readily dismissed. In a decision released last week, a federal court judge in New York reasoned that Nungesser could not establish the central requirement for a Title IX claim: discrimination based on sex. As the court characterized Nungesser’s argument, he experienced sex-based harassment because the allegations against him were based on sexual misconduct. The court called this a “logical fallacy” that, taken to its logical end, would lead to the conclusion that those who commit or are accused of committing sexual assault is a protected class under Title IX. It is clear that when Title IX prohibits discrimination based on sex, it means based on the plaintiff’s sex, not based on the act of sex. And it is clear even from Nungesser’s own pleadings that Sulkewicz’s conduct was motivated not by Nungesser’s status as male, but by his conduct towards her — in her account, that he raped her, in his account, that he rejected her, but either way, both agree that it is conduct and not status that motivated her actions.
Moreover, Nungesser failed to allege any harassing conduct by Sulkewicz or anyone else. He does not claim that Sulkewicz had any contact with him after the hearing, or directed comments towards him, or even used his name in her protest. And even if she had called Nungesser a rapist, it would have been an accusation particular to Nungesser, not a gender-based slur. The court noted that a person who is falsely accused in public has a remedy in tort law. However, Nungesser’s claim is a Title IX claim against the university, not a slander claim against Sulkewicz.
The court also found that Nungesser’s allegations did not establish that he had been deprived of educational opportunities, another requirement for Title IX liability to attach.
The court granted leave to Nungesser to file an amended complaint to correct the numerous deficiencies, noting that it is typical for courts to grant such permission. I don’t think (and I don’t think the court thinks) that the result would be much different for Nungesser the second time around; if he had better facts to include in his complaint he probably would have used them the first time.