After enduring the years of harassment, retaliation and vilification, otherwise known as college at Columbia University, Paul Nungesser sought to turn the tables on the abusive use of Title IX. What about him? What about the guy who was the target of Emma Sulkowicz, the infamous Mattress Girl, who took to the campus after her claims of rape were rejected?
Andrew Miltenberg’s first attempt to hold Columbia University accountable for its neglect of a male student, its complicity in Sulkowicz’ antics, its failure to stop her from bringing her mattress onstage at graduation, got shot down by SDNY Judge Gregory Woods.
The first decision was sound, but disappointing:
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.
By second amended complaint, Miltenberg sought to overcome what has proven to be too obvious for dispute when the allegations were made by a female against a male, but were subject to harsh rationality when the tables were turned.
The Court’s task here is not to weigh in on the social debate regarding sexual assault on college campuses, to comment on best practices, or to render generalized judgments about the fairness of conduct between the parties. Indeed, it is not even the Court’s role here to determine the truth. Instead, the Court’s role is limited to determining whether, viewed through the lens of the relevant pleading standards,
And, indeed, Judge Wood studiously ignores the same concerns that guide actions under Title IX when raised by females, most notably the relative application of the law by sex and the rhetorical twists of the relevant pleading standards. For women, only two relevant facts need to be pleaded: that conduct complained of was “perpetrated” by a male, and that it caused them any sort of pain. For Nungesser, the bar was not only set higher, but on an an entirely different plane.
In dismissing Nungesser’s FAC, the Court held that he had “fail[ed] to plead facts giving rise to a plausible inference that Sulkowicz’s actions were motivated by his gender.” Nungesser I, 169 F. Supp. 3d at 366. The same is true of his SAC. As the above factual recitation shows, Nungesser once again pleads that Sulkowicz’s conduct was motivated by her anger at his rejection of her as well as her anger at his having been found “not responsible” by the Hearing Panel.
Notably, the court emphasizes the word “motivated” as the key distinction. There are, however, two aspects to this one word. What motivated Sulkowicz to pick Nungesser, out of all males on campus against whom to wage war? That is the motivation to which the complaint speaks, and upon which Judge Wood hangs his ruling.
The second aspect of motivation, however, relates to Mattress Girl’s war on behalf of all women against men. By doing everything possible to make this a cause célèbre, both on campus and among women everywhere in their war on rape, real or imagined.
Had this case been about some unknown girl named “Emma” who sought revenge for being rebuffed by a boy named “Paul,” the mere fact that they were of opposite sexes might well be eschewed as falling below the threshold of Title IX. No, it would likely not have been sufficient to obtain dismissal had Emma made the complaint, but that’s the unnatural course of law these days.
However, this wasn’t some unknown girl named “Emma,” but Mattress Girl, who took action to desperately thrust herself into the public eye as an icon of rape victimization. And Columbia University was complicit, both in its enabling her to do so, and taking no action to protect its male student from being the target of her war on male rapists.
As Miltenberg specifically alleged in the complaint, Sulkowicz targeted Nungesser as the poster boy for male rapists.
The parties dispute whether the terms “rapist” and “serial rapist” ever constitute gendered slurs. Nungesser argues that, like the term “whore,” “rapist” is susceptible of two meanings:
[S]imilar to “whore,” “rapist” is a term, that can either describe a fact — a person is offering sexual service/a person having committed sexual violence against another person — or be used as a gendered slur: “You dress/dance/act like a whore” is a gendered slur, a form of verbal abuse that is only directed at women, because it criticizes an alleged behavior that violates the social norms of “how a woman should behave.” To describe a woman who does not work as a prostitute, as a whore, aims to demean her and accuse her of violating assumed female virtues (like chastity, restraint in sexual activities, rejection of promiscuous behavior) and instead equates her with a standard, sex-based, misogynist stereotype (“women are whores”).
SAC ¶ 113. Nungesser argues that “rapist” has a similar secondary meaning that operates not as a statement of fact that someone has committed the crime of forcible sexual intercourse, but rather as an insult that reflects gender-based stereotypes of men as “sex-driven.”
To anyone outside the cloistered halls of the courtroom, this might seem so utterly obvious in light of the way the word is employed, untethered from definition and a feminist dog-whistle to reflect their worldview of rape culture. Judge Wood chose not to acknowledge any of this.
The Court accepts for the purposes of this motion that the terms “rapist” and “serial rapist” constitute gendered slurs in some circumstances. But this is not an examination of hypotheticals or arguments in the abstract, including the many arguments and hypotheticals embedded in the SAC. Rather, it is an examination of the facts pleaded, and the facts pleaded in the SAC show that the terms were not used in such a manner here. The SAC alleges a sexual encounter between Sulkowicz and Nungesser, which he maintains was consensual and she says was rape.
Had this been about one false claim of rape between two students, limited as Judge Wood found to one sexual encounter, this might be a fair conclusion. But it wasn’t. This was Mattress Girl, who did everything in her power, with the complicity of an Ivy League university, to make this about the national hysteria of campus rape rather than just her personal false claim.
To the extent anyone questions whether this was done for petty personal reasons or for self-aggrandizement, to turn unknown “Emma” into internationally known Mattress Girl, it was answered by her bizarre self-created porn video. It doesn’t get more desperate for attention than that.
But her climb to fame as a rape-victim icon needed a foil, someone whose life would be sacrificed to her cause, and that person was Paul Nungesser. And Columbia University enabled her climb to stardom as a victim of sexual discrimination on Nungesser’s back. So what if it cost a college guy’s educational experience, not to mention future. Discrimination may be wrong for females, for gays, for transgenders, but not for men. They can’t win.