The spectacle of Emma Sulkowicz, Columbia University’s “Mattress Girl,” walking on stage at graduation carrying her mattress, may have been more than Paul Nungesser could take. Or, he waited until after he graduated to sue his university for taking the side of his accuser, despite clearing him of wrongdoing, by allowing, if not enabling, her to persist in her accusations against him with the official Columbia seal of approval.
So Nungesser sued, based upon his claim of protection against sex discrimination under Title IX. Now, his suit has been dismissed on motion by Columbia by SDNY Judge Gregory Woods.
In his decision, U.S. District Judge Gregory Woods wrote that Nungesser’s lawsuit would push Title IX too far, setting a precedent that would allow any students accused of sexual assault to sue a school that did not silence the student who had accused them from speaking out.
Disappointment in the outcome doesn’t stem from the court’s vindication of Mattress Girl’s actions, or Columbia’s complicity in them. Judge Woods had no kind words for either, and his ruling as to liability under a variety of ancillary state court claims was rather thin.
But what gives rise to disappointment is the manifest disconnect between how the Department of Education’s Office of Civil Rights, and the colleges that have applied its “guidance,” has abused Title IX for its own political agenda, where Nungesser was denied the ability to do the same.
Judge Woods’ decision on Title IX is legally sound.
“On the basis of sex,” as used in Title IX, refers to one’s status, not to whether the underlying conduct was sexual in nature. “[T]he natural meaning of the phrase ‘on the basis of sex’ is on the basis of the plaintiff’s sex . . . . Even within Title VII of the Civil Rights of 1964 itself, Congress used the phrase ‘on the basis of sex’ as shorthand for discrimination ‘on the basis of such individual’s sex.’” Thus, “[t]he mere fact that sexual harassment proceedings have as their subject sexual behavior and speech does not itself implicate sex discrimination . . . ” .
Harassment, “even harassment between men and women” is not automatically considered to be gender-based discrimination “merely because the words used have sexual content or connotations.” In order to be considered gender-based harassment, the harassing conduct must “support an inference of discrimination on the basis of sex.” . . .
That the accusations against Nungesser involved an act of sex does not mean they were motivated by his gender. Nungesser distills his argument to a sentence in his opposition brief: “falsely accusing a male of being a ‘rapist’ . . . is inherently gender based and was directed to Nungesser as a male.” [Citations omitted.]
This is a hard pill to swallow, that a false rape accuser persisting in a false attack against an innocent accused with the aid of their university is not discrimination based on gender. but conduct based on an act of sex.
To hold 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—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.
Before you start screaming, consider the ramifications of Judge Woods’ holding. Even though it’s used against Nungesser today, the same rationale applies to rape accusers who claim a right under Title IX to have their school play rape adjudicator. As has been argued all along, Title IX is not a rape law. Much as Nungesser can’t use it to vindicate his claim against Columbia, neither can an accuser. There is no basis in law for colleges and universities to adjudicate claims of rape and sexual abuse on campus.
But there’s more. Judge Woods accepted, as he should, Columbia’s argument that a cause of action under Title IX against a school could not be based on the mere claim that it hurt an individual’s feelings:
For a school to be held liable for such harassment, it must be “deliberately indifferent to sexual harassment, of which [it] had actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” [Emphasis added.]
This is the law, and it precludes 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. That colleges choose to do so is their choice, not a legal mandate. That colleges choose to do so lacks any legal authority under Title IX. Colleges have no lawful authority to adjudicate claims of gender discrimination based upon acts of sex gone wrong.
Does this offer much comfort to males on campus? Of course not. Judge Woods’ decision is that of a court, of a judge, based upon law rather than an agenda imposed by the DoE OCR and embraced by those who are supposed to be the grown-ups in higher education. But what it provides is the basis for recourse to the courts after colleges act ultra vires by adjudicating sexual conduct at all.
It’s not that the failure of colleges to provide basic due process to the accused isn’t a problem. It’s a huge problem. But even if they did, the law is clear: they have no legal authority to adjudicate sexual conduct between students at all, unless the school “had actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” And yet, they do.
Great decision. It comes at the plaintiff’s cost, but as you say, it’s legal authority that “campus rape” versus criminal rape is only actionable at school if the “rape” was discriminatory rather than another motivation like drunk and horny. In theory…
Judge Woods’s decision is no silver bullet. Extending it to remove on-campus sexual assault from Title IX would go against decades of law regarding sexual harassment in the work place under Title VII. Like Title IX, Title VII prohibits discrimination based on sex. The Supreme Court held in Meritor Savings Bank that sexual discrimination includes harassment. Lower courts have agreed that rape is, “by definition, a form of harassment based on sex.” Lapka v. Chertoff, 517 F. 3d 974, 983 (7th Cir. 2008) (because I can’t link, you get a citation). Once a sexual assault has occurred, the employer has a duty to investigate and take action. “The continued presence of a rapist in the victim’s workplace can render the workplace objectively hostile because the rapist’s presence exacerbates and reinforces the severe fear and anxiety suffered by the victim. ” Ibid. An employer who fails to take appropriate action is liable.
Thus Title IX does support requiring schools to act on sexual assault. Assistant Secretary Umbridge’s, whoops, I mean Ali’s Dear Colleague letter still veers from Title VII precedent. It does not even mention the basis for equating harassment and discrimination: harassment becomes unlawful discrimination only if it in effect changes the terms and conditions of employment. That barrier is high: just moving to the next thing without first getting affirmative consent doesn’t make it. And no employment lawyer would dare argue that one drunken employee had a duty to protect another from the consequences of her own drunkenness.
Title VII isn’t Title IX. It has its own caselaw.
That’s not what Judge Woods says: “It is also well established that courts interpret ‘Title IX by looking to the body of law developed under Title VI, as well as the caselaw interpreting Title VII.’ Yusuf v. Vassar Coll., 35 F.3d 709, 714 (2d Cir. 1994) … .”
As should be obvious, his reference is to there being a private cause of action, and even there he notes that there is a huge distinction since Title IX requires intentional conduct, whereas Title VII allows for disparate impact.
What’s so surprising here? Campus sex adjudication has nothing to do with what Title IX requires and everything to do with kowtowing to OCR bureaucrats using implicit threats of defunding schools if the schools do not play along with their latest whims.
Since the problem is political, the solution is political not legal. Create pressure on the presidential administration to change or at least get in line their bureaucrats. This has been happening in Congressional hearings at even at state levels. Keep doing that.
Even better unwind the funding. It is beyond me why “private” schools are massively publicly funded and therefore must sing for their supper.
Next level solution. Privately boycott the campus sex adjudication system. I regularly advise college age boys (as I know other lawyers have) to only bang townies off campus and therefore leave their private conduct (mostly) outside the campus process.
If every college boy followed this advice, then college girls would realize the campus process puts them at competitive disadvantage and start pressuring the system that purportedly protects them to change to level the playing field for them.
Townie girls are more fun anyway, as I can speak from my own experience. I also remember being required to read Lysistrata for college orientation and now it is big again with Chi-Raq. No peace, no piece with tables turned.
There have been schools that have taken jurisdiction over their nasty boys messing with townies.
More importantly, when they realize what’s happening, the ones that haven’t will start to do so. Nothing outside the State. Or at least, nothing outside State U.
Now I’d be interested to see how that one plays out in the courts at least with respect to public schools. How can a students conduct off campus with nonstudents which has no impact on campus be under the school’s purview?
The cases I’ve heard of is where the accused student talks some smack on social media, which then arguably causes some hurt feels to third parties on campus.
The really radical solution is for the boys to stop putting out entirely until they graduate. No peace, no piece.
Boys stop putting out? There’s a threat.
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Still not quite getting this. Presumably if a male were to sleep with a female and afterward spread stories about their sexual encounter with the intention of having that female leave the campus this would be sexual harassment. So in order for this to be not considered harassment the harasser merely has to preempt with an accusation of rape no matter how ridiculous or how many times it has been rejected. He is then free to say or do whatever he likes even with the expressed reason of getting the victim to leave and the institution is not required under title nine to stop this. Is it that sexual harassment is not covered under title IX or is there some sort of rape victim privilege or assumption of rape victim status privilege also covered under the law? We are not talking about actions that are part of the legal process here.
What makes this hard, if not impossible, to swallow is that what’s called “sexual harassment” when it comes to a female being the target is taken for granted, but not so when it’s a male. The problem isn’t that Judge Woods is wrong, but that it’s not sexual harassment for a female either, even though it’s been deemed so on campus and in the minds and voices of feminists.
The same rules should apply to both, so if it’s not sexual harassment for Nungesser, then it’s not for a female subjected to the same conduct. And that’s what should change under the law.