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.
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.