A federal district court judge dismissed a lawsuit on Friday from a former Columbia University student who claimed that the university had violated Title IX by failing to protect him after one of his accusers, Emma Sulkowicz, publicly protested the university’s failure to find him responsible for sexual misconduct.
At least three students accused Paul Nungesser of sexual misconduct while at Columbia. After conducting internal disciplinary proceedings, the university found Nungesser “not responsible” in each one. Sulkowicz, however, described several problems with how the university conducted its investigation and the hearing, including that the investigator had taken incomplete notes and that the questioning from the disciplinary panel displayed not only ignorance of sexual assault but of trauma-informed practice. Of the entire process, Sulkowicz told the New York Times that she “never felt more shoved under the rug in my life.”
In the fall of her senior year, Sulkowicz, a visual arts major, developed a performance art project, called “Carry That Weight,” where she would carry a dorm-sized, extra-long twin mattress with her every where she went, every day, until Nungesser was expelled or left the school. Sulkowicz carried the mattress until her graduation from Columbia, and her project drew national attention.
A group called Carry That Weight Together formed at Columbia. Other students started carrying mattresses at Columbia, and then at other campuses. In the fall of 2014, over 130 campuses participated in a national Day of Action to demand that universities take action to address the epidemic of campus sexual assault. As part of that protest, Columbia students carried 28 mattresses around campus and then placed them on Columbia University President Lee Bollinger’s lawn, for which the students were fined and charged with clean-up costs.
Meanwhile, Nungesser continued at Columbia. He later filed a complaint against the university, and Sulkowicz’s art professor, alleging that the school had violated Title IX – the federal law prohibiting sex-discrimination in educational programs – by allowing Sulkowicz to protest through her art project on campus. According to Nungesser, the project amounted to gender-based harassment.
U.S. District Judge Gregory H. Woods disagreed. In his opinion granting Columbia’s motion to dismiss, Judge Woods wrote, that Nungesser “assumes that because the allegations against him concerned a sexual act that everything that follows from it is ‘sex-based’ within the meaning of Title IX. He is wrong.” Judge Woods went even further, “Taken to its logical extreme, Nungesser’s position would lead to the conclusion that those who commit, or are accused of committing, sexual assault are a protected class under Title IX. The statute does not permit that result.”
Nungesser’s case is one of several brought by alleged perpetrators who have – so far unsuccessfully – tried to use Title IX to receive monetary compensation from their universities for alleged “sex discrimination.” Unlike Nungesser, most of these cases have involved students who have been found “responsible” for sexual misconduct after disciplinary proceedings. Title IX, of course, requires universities to investigate, remedy, and prevent sexual assault. These lawsuits, therefore, appear to some to be attempts to create financial incentives for schools not to hold perpetrators accountable, especially since Title IX complaints against colleges and universities have never resulted in financial penalties for the schools involved.
Currently, the Office for Civil Rights in the Department of Justice is investigating over 100 colleges and universities that may have violated Title IX in their approach to sexual violence. Between 2009 and 2014, the number of Title IX complaints related to sexual assault at colleges and universities increased by more than 1,000 percent. This increase, together with a lack of appropriate resources, has contributed to severe delays in the resolution of complaints. The average duration of a sexual violence investigation in mid-2015 was 940 days, or more than two years, and no resolution has ever led to a school losing federal funds.