Yesterday, Columbia University student Paul Nungesser sued the institution, alleging that it is liable for harassment that he experienced in the wake of a fellow student’s accusations that he sexually assaulted her. The university did not find Nungesser responsible for any assault, and his accuser, Emma Sulkowicz, has been protesting this outcome by carrying a mattress with her around campus, a protest that is doubling as performance art project for credit in her art class.
The protest has apparently made Nungesser’s life difficult. He alleges that it has caused him to experience “verbal aggression, intimidation, and hostility” for which he seeks to hold Columbia liable for unspecified money damages. His primary claim is under Title IX, which means that his case will have to satisfy the following elements required for institutional liability for harassment: (1) that the harassment is severe or pervasive; (2) that the harassment is because of sex; that Columbia officials had notice of the harassment; and (4) that they responded with deliberate indifference. I think all four of these elements will be challenging for him to satisfy, based on the allegations in the complaint. First, though he describes the harassment as “severe” and “pervasive,” he does not give very many specific examples beyond a couple of Facebook comments posted by friends of Sulkowicz who are not alleged to be students at Columbia. Verbal harassment must be really pervasive to be actionable, and the court is going to require that he show examples to satisfy this requirement.
Second, there is no allegation that he reported this harassment to Columbia University officials, nor that they responded with deliberative indifference. Finally, he does not explain in the complaint why the harassment targets him because of his male sex, as opposed to because people apparently believed he had gotten away with committing sexual assault. It is possible that harassers would have assaulted a female they perceived to have gotten away with sexual assault or other comparable violence in a similar way.
Suprisingly, he does not include a defamation claim against Columbia or Sulkowicz, even though what seems to be at the crux of Nungesser’s lawsuit is the fact that Sulkowicz’s protest is making people believe he committed sexual assault. Why doesn’t he sue her for defamation, and try to get an injunction against the protest? After all, she would have no special defense arising from the artistic nature of her protest. If he indeed states falsely that he assaulted her and his reputation is damaged as a result, he should be able to prevail as long as he can prove that her claim is false. Interestingly, the litigation strategy he has chosen avoids having to do just that.