Paul Nungesser, the man who was accused of raping fellow Columbia University student Emma Sulkowicz but who was cleared during multiple campus hearings, has had his lawsuit against his former school dismissed.
Nungesser, despite being found “not responsible” for sexually assaulting Sulkowicz, was treated as guilty in the eyes of the media and Columbia due to Sulkowicz’s senior thesis – an art project that involved her carrying a mattress around campus and drawing pictures of Nungesser’s genitals. Nungesser alleged in his lawsuit that this constituted gender-based harassment and that Columbia was complicit.
President Obama-nominated judge Gregory H. Woods claimed in his court opinion that Nungesser failed to prove that he was the subject of gender-based discrimination.
“Nungesser’s argument rests on a logical fallacy. He assumes that because the allegations against him concerned a sexual act that everything that follows from it is ‘sex-based’ within the meaning of Title IX. He is wrong,” Woods wrote. “Taken to its logical extreme, Nungesser’s position would lead to the conclusion that those who commit, or are accused of committing, sexual assault are a protected class under Title IX. The statute does not permit that result.”
How convenient that the Title IX statute doesn’t permit students falsely accused to have the same go-to gender discrimination claim that accusers have. If sex assault is gender discrimination merely because of someone’s sexual preference, then false accusations should be considered gender discrimination for the same reason. Both interfere with a student’s ability to learn and participate in school events.
The judge may have a point about the harassment against Nungesser having to do with the actions between him and Sulkowicz and not his gender. But one would be hard-pressed to find anyone who would believe that Columbia would have allowed a male student to, for instance, run around campus calling his ex-lover a “whore” while presenting drawings of her genitals for the campus to see.
Further, Woods’ ruling should set a precedent in how schools interpret and adjudicate Title IX complaints, even though that was not his intention. Attorney Scott Greenfield explained that the rationale denying Nungesser the ability to sue for gender discrimination would also apply to accusers.
Woods had claimed in his dismissal that allowing Nungesser’s claim of gender-discrimination to go forward would “create a new right of action under which all students accused of sexual assault could bring a Title IX claim against their educational institutions — so long as they could plausibly plead that the accusations were known to the institution and that the institution failed to silence their accusers — simply because the misconduct they were accused of has a sexual element.”
Greenfield explained that this would also apply to accusers, and essentially undermines the Education Department’s insistence that colleges and universities create pseudo courts to adjudicate sexual assault, which is actually a felony.
Greenfield acknowledged that Woods was correct when he accepted Columbia’s argument that bringing a cause of action under Title IX could not be based on hurt feelings, but said this would also preclude “the vast majority of alleged Title IX violations, which means that colleges have no business under the law providing recourse to all those women claiming gender discrimination because they regretted their sexual conduct.”
Judge Woods’ ruling does not vindicate Sulkowicz’s story, as I suspect those who continue to support her despite evidence supporting Nungesser’s side of the story would try to assert. Nor is this ruling the end of Nungesser’s quest for justice for the harassment he endured his senior year at Columbia.
In a statement provided to me, Nungesser’s parents, Karin Nungesser and Andreas Probosch, vowed to keep fighting for their son.
“We all are incredibly disappointed by the decision of the court,” the Nungessers wrote. “But we still believe that it is untenable that the rule of law ends behind campus gates.”
They continued: “If this decision is upheld, all parents who are planning to send their sons to college should know: Innocent until proven guilty no longer applies on college campuses. This decision affirms that the outcome of campus adjudications is ultimately irrelevant. Even if your son is exonerated it does not protect him from public defamation, harassment and ostracism, from slander and from being branded ‘a rapist’ for the rest of his life.”
Nungesser’s attorney, Andrew Miltenberg, also told me that he and Nungesser would continue to pursue state court options and amend their complaint. Judge Woods’ opinion suggested Nungesser could amend his complaint to seek justice through a New York state human rights law.
“We are extremely disappointed in the decision. Columbia allowed, in fact, it fostered a hostile environment when it allowed Ms. Sulkowicz to protest her loss in campus tribunals by making Mr. Nungesser a pariah, not only within the Columbia University community, but on an international level,” Miltenberg wrote in an email. “We cannot allow University campus’, whether public or private, to become hunting grounds for the rights of those that have been falsely accused and found innocent. We intend to diligently pursue justice on behalf of Paul.”
A Columbia spokesperson told the school’s student newspaper, the Columbia Spectator, that it was “encouraged that today’s ruling brings us closer to the point that this litigation, addressing issues understandably difficult for many, can be concluded.”
Ashe Schow is a commentary writer for the Washington Examiner.
