By Robby Soave at Reason Online
Paul Nungesser makes a strong case that he was the victim of an unjustified shaming campaign perpetuated by fellow student Emma Sulkowicz and enabled by Columbia University’s quiescence. Even though the university found him innocent of raping Sulkowicz, a professor endorsed her efforts to get him kicked off campus, and administrators did nothing to prevent her from breaching confidentiality agreements and publicly repeating her accusations.
Nungesser is trying to prove that Sulkowicz maliciously defamed him. But that won’t be enough for him to win his lawsuit—because he is suing Columbia, not Sulkowicz. His lawsuit argues that Columbia violated Title IX of the Higher Education Act—which prohibits gender-based harassment at colleges—by failing to protect him from Sulkowicz’s hostile and defamatory activities.
It’s ironic, in a way, that Nungesser’s lawsuit rests on Title IX. The Education Department’s Office for Civil Rights has increasingly relied on a strained interpretation of Title IX to pressure all universities that accept federal funds to crack down on sexual harassment in ways that threaten the due process rights of the accused, according to many civil libertarians (including the law faculty of Harvard University). Many alleged victims of rape who believe that they were deprived of justice have turned to Title IX when they assert that their universities are failing to honor federal requirements. In some sense, Nungesser is flipping the script by alleging that Sulkowicz’s rape accusations and subsequent activism are the kind of thing that OCR believes Title IX requires universities to prevent—though he is certainly not the first accused student to take such action.
According to the Foundation for Individual Rights in Education’s Samantha Harris, OCR’s current thinking on Title IX lends itself to exactly this kind of lawsuit, which is emblematic of the need to separate universities from the business of adjudicating legal disputes:
This is not, as some have suggested, a “nuisance lawsuit.” The current interpretation of Title IX, the law that bans sex discrimination in federally funded education programs, arguably invites the type of claims that Nungesser is making. But from FIRE’s perspective, the case is notable because it illustrates just what a broken system looks like.
Here is what we know for certain: Two students at Columbia University, on both sides of a sexual assault allegation, have completely lost faith in Columbia’s ability to deliver a trustworthy, reliable verdict. Emma Sulkowicz, who believes that Columbia wrongly cleared Nungesser of sexual assault in its internal disciplinary process, has devoted the remainder of her college career to highlighting that perceived injustice. Paul Nungesser, who believes that Columbia has improperly allowed him to be labeled a rapist on campus despite having cleared him of that charge, has now filed a federal discrimination lawsuit against the university. And as a result of this loss of confidence on both sides, a great number of very personal details about two students’ sex lives have become national news.
And yet with every new piece of federal guidance, universities like Columbia only become more and more entangled in handling claims of serious felony misconduct. Time and again, universities demonstrate—in ways that harm both victims and the accused—that they are simply not equipped to address such complicated and serious cases. Doubling down on this broken system is not the answer, and until something changes, we are likely to see more cases like this one.
Bloomberg View columnist Megan McArdle is skeptical that Nungesser can win:
I don’t find [the lawsuit’s] litany of complaints particularly compelling. Columbia didn’t railroad him because he’s a man; the university actually found him not guilty. Nor does Columbia have the power to force Sulkowicz to stop telling the world that he’s a rapist. Perhaps the university shouldn’t be giving her course credit for doing so, but this seems a pretty thin reed upon which to hang a lawsuit. The rest of the complaints are even thinner, for example, that President Bollinger issued some mealy-mouthed platitudes about how distressing this all is and that the university covered some of the cleanup costs for an anti-rape rally in which his case was prominently featured.
Nungesser is not the first man to sue his college over unequal treatment of men in the campus system of adjudicating sexual offenses. I’ve read some of the complaints, and they are wounded, outraged litanies of arbitrary treatment by a system that is opaque and far from accountable. But the cases I’ve looked at generally end up getting dismissed (including a recent one against Columbia), because even if all the facts were true as stated, they didn’t add up to proof that these men were treated differently specifically because of their gender. Due process complaints like this one against Michigan are probably a more fruitful avenue, but that’s not available against private schools.
Brooklyn College history professor KC Johnson outlines one of the most obvious ways Nungesser can demonstrate that Columbia wronged him. The university clearly failed to live up to its promise to protect Nungesser’s privacy:
Despite Columbia’s low evidentiary standard (preponderance of evidence) and accuser-friendly procedures, Nungesser wasn’t found culpable—even though he wasn’t able to present clearly exculpatory evidence (the Facebook messages) and possibly exculpatory evidence (that Sulkowicz had previously claimed that another Columbia student had raped her). Sulkowicz’s lack of credibility was, it seems, more than enough for the Columbia panel.
The university instructed Nungesser that it would “make all reasonable efforts to maintain the confidentiality/privacy of the involved parties,” and that he “should use the utmost discretion and not discuss the evidence with others.” Sulkowicz, presumably, received the same guidance (otherwise Columbia violated Title IX by setting one procedure for the accused and another for the accuser). Columbia’s policy held that “breaches of confidentiality/privacy or the complainant, respondent, witnesses, or the investigators, may result in additional disciplinary action.”
Sulkowicz obviously has ignored that requirement, and responded to the not-culpable finding by going on a media spree, speaking to a wide variety of local, state, and national reporters—as well as, the complaint alleges, coverage in 35(!) other countries. No evidence exists that Columbia disciplined Sulkowicz for the breach of confidentiality. Instead, Columbia removed the promise of confidentiality in 2014, after Sulkowicz had begun her publicity effort.
I reached out to Matt Kaiser and Justin Dillon—lawyers with the firm Kaiser, LeGrand & Dillon PLLC who have represented accused students in campus sexual assault disputes. They don’t know whether Nungesser can win, but believe he deserves some kind of justice for his mistreatment:
Kaiser: Columbia University determined that Paul Nungesser wasn’t a rapist. Then it gave course credit for a woman to launch a media campaign against him for sexual assault. If what’s in his complaint is true, his time at college and future have been shattered. To be sure, this is a novel case, but the law needs to protect people like Mr. Nungesser.
Dillon: Columbia’s treatment of Paul Nungesser shows everything that is wrong with the current system. Here is a man who was found innocent of all charges but whose primary accuser has actually been given course credit for continuing to call him a rapist—and making national news in the process. He is living every innocent person’s worst nightmare. Some of his legal claims are stronger than others, but it seems clear that Columbia should have to pay a price for how it’s treated him. If this case goes to trial, I look forward to seeing how Columbia justifies what it did and how Ms. Sulkowicz performs under cross-examination.
Read Sulkowicz’s response to the lawsuit here.
Schools: Columbia University