In a case made famous by a female Columbia University student (Emma Sulkowicz) who toted a mattress around Columbia’s campus, the United States District Court for the Southern District of New York dismissed all claims contained in a lawsuit filed against Columbia University by Mark Nungesser.
The basic facts of the case are that Sulkowicz accused Nungesser of sexual assault. Columbia University processed Sulkowicz’s complaint though its campus disciplinary process and found that Nungesser was not responsible for sexually assaulting Sulkowicz. Sulkowicz then began a campaign of publicizing that her rapist was on campus. Although she did not name him, he was identified by the media and via other various means. Sulkowicz then as a part of her senior thesis project, which was approved by her department and for which she received credit, began carrying a mattress around campus. The intend purpose of the project was to get her rapist (Nungesser) off campus. The project culminated with Sulkowicz carrying the mattress during Columbia’s graduation ceremony.
Nungesser subsequently filed suit against Columbia University alleging that by permitting and supporting Sulkowicz’s actions his rights under Title IX were violated on the basis of gender discrimination (various state claims were also made by Nungesser).
Columbia University filed a Motion to Dismiss, and following established precedent in the Second Circuit, the court dismissed Nungesser’s action. The court found that Nungesser did not plead sufficient facts to demonstrate that he was subjected to gender based discrimination. The court explained that Sulkowicz’s actions against Nungesser were based on his conduct against her (either because he raped her, as she claimed, or he rejected her, as he claimed) and were not based on his status as a male but rather her actions were based on her personal animus towards him, which can not be used to support a claim of gender discrimination under Title IX.
The court further explained that Title IX actions are usually supported by harassing conduct that is sexual in nature that include allegations of unwelcome sexual touching or use of gendered slurs. Sulkowicz’s public statements that she wanted her rapist off campus were not actionable under Title IX. Further Nungesser did not allege that Sulkowicz touched him, ever spoke to him, followed him, or otherwise interacted with him after the conduct hearing. The court went on the state that merely being called a rapist by someone does not constitute an actionable claim of gender discrimination under Title IX as to find otherwise “…would, in essence, create a new right of action under which all students accused of sexual assault could bring a Title IX claim against their educational institutions…simply because the misconduct they were accused of has a sexual element.”
The court also held that Nungesser did not allege facts sufficient to establish that Sulkowicz’s conduct (even if it was gender based harassment) deprived him of access to the educational opportunities or benefits provided by Columbia University. Nungesser was not able to establish facts that demonstrated that the actions by Sulkowicz and Columbia’s failure to remediate the situation had a concrete negative effect on Nungesser’s ability to receive an education (e.g. drop in grades, missing school, being forced to transfer, or mental health issues requiring therapy or medication).
The court lastly did not find any support for Nungesser’s state based claims and dismissed all of them. These included claims based on New York Human Rights Law, breach of contract, covenant of good faith and fair dealing, General Business Law Section 349, promissory estoppel, negligence, and intentional infliction of emotional distress.
This case demonstrates the difficulty of plaintiff’s being able to use Title IX, particularly in the Second Circuit, to challenge the actions of a college and university. This case illustrates the need for plaintiff’s to establish direct facts establishing that the complained of actions may have been motivated by gender and that mere conclusory statements will not suffice.
Feedback of all sorts is welcome on this post or any of my other posts.