Testing Title IX

Paul Nungesser’s Columbia case is the most recent attempt to turn the law from accuser to accused in cases of sexual assault.

Emma Sulkowitz, Columbia University campus.
There’s more at stake in these Title IX cases than an individual’s grievances. Above, Emma Sulkowitz, who protested her alleged rape by carrying a mattress around Columbia.

Photo illustration by Lisa Larson-Walker. Photos by Andrew Burton/Getty Images, Malik Earnest/Unsplash, Ana Paula Hirama/Flickr CC.

Almost a year after the graduation of Emma Sulkowicz—the Columbia student who protested her alleged rape by carrying a mattress around campus for two semesters—and Paul Nungesser—her accused rapist—a New York judge has dismissed Nungesser’s lawsuit against their alma mater.

Nungesser claimed that Columbia had violated his rights under Title IX, the very federal statute that protects victims of sexual assault. His argument: Although the university found him “not responsible” of the rape, it looked the other way while he was tried in the court of public opinion and subjected to harassment by his peers. According to Nungesser, Sulkowicz’s mattress project and related activism prevented him from attending “on-campus career recruiting events”; by extension, he blames Columbia for his failure to get a job in the U.S., which has forced him to move home to Germany. In a 26-page dismissal, U.S. District Judge Gregory Woods not only rejected Nungesser’s argument, but also raised concerns about the long-term consequences of allowing male students accused of rape to turn Title IX—which bars educational institutions that receive federal funding from discriminating on the basis of sex—toward their own interests.

“Nungesser’s argument rests on a logical fallacy,” writes Woods. “He 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. 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.”

In other words, to deem Nungesser’s Title IX claim valid “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.”

Nungesser is not the first alleged perpetrator to frame himself as the real victim under Title IX. Inside Higher Ed first reported on male students making claims under the law in 2013, and last spring, it counted “at least 68 pending lawsuits alleging gender bias by accused students, many of them filed in the last two years.” So far, the strategy doesn’t seem to be working. As Tyler Kingkade has reported at the Huffington Post, male students have failed to prove gender discrimination in cases against Vassar, Saint Joseph’s University, Miami University, and the University of South Florida. Another male student’s lawsuit against Columbia was also dismissed. 

The fact that accused students and their legal counsel keep choosing this route may indicate that, as Woods suggested in his dismissal, there’s more at stake in these Title IX cases than an individual’s grievances. As Erin Buzuvis, director of the Center for Gender and Sexuality Studies at Western New England University, told HuffPo, the choice may be partially “symbolic.” Buzuvis has written: “It may be that plaintiffs continue to advance the Title IX theory because if they could establish that universities are routinely liable under Title IX for disciplining students for sexual assault, it would create the impression that Title IX is inherently contradictory, unworkable and its application to sexual assault should be repealed.”  

Whether or not they’re involved in a larger effort to undermine Title IX, these male students sometimes have legitimate and troubling concerns about the justice schools mete out. A judge ruled last summer that the University of California, San Diego, treated a student unfairly in the investigation that led to his suspension. Middlebury College, the University of Southern California, and the University of Tennessee, Chattanooga, are also among the schools that have been forced to reinstate students, at least for the duration of court proceedings, over procedural concerns (in the case of Middlebury) or, in the latter two examples, questions of due process. (The California case has not yet been decided.).*

Still, the logic behind accused students’ Title IX suits often carries a whiff of the men’s rights activists’ argument that the war against women is really a war against men. Title IX has given survivors of sexual assault an essential source of leverage: If colleges fail them, they can bring the weight of the federal government to bear by detailing the ways that the school’s indifference has cost them equal access to educational opportunities. The accused students who make arguments under Title IX, on the other hand, claim that the system is rigged against them. Vassar student Peter Yu’s complaint after his expulsion argued that he’d experienced gender discrimination because “Vassar’s guidelines and regulations are set up to disproportionately affect the male student population of the Vassar College community as a result of the higher incidence of female complainants of sexual misconduct against male complainants of sexual misconduct.” Under this logic, the very fact that the vast majority of rapes involve a male perpetrator and a female victim invalidates any imaginable effort to stop them from happening.

Though Nungesser also argued that he had experienced discrimination under Title IX, he—or his lawyers—took a different tack than Yu and others. Woods’ dismissal says that Nungesser’s claim didn’t focus on harms he’d suffered as a man; rather, he took “sex-based discrimination” to mean “‘based on the act of ‘sex’ rather than ‘gender.’ ” Writes Woods: “As both the case law and the logic show, this cannot be correct.”

That wasn’t the only aspect of Nungesser’s suit that Woods found unconvincing. He writes: “The Court does not suggest that Nungesser’s senior year at Columbia was pleasant or easy. Title IX, however, sets a high bar before a private plaintiff may recover and Nungesser has not alleged facts showing that he was effectively deprived of Columbia’s educational opportunities.” As for the recruiting events, Woods writes: “Aside from the fact that it is debatable whether such events are an educational opportunity … there are no facts supporting this bare assertion—did he even attempt to attend these events? How many events were there? Was he turned away at the door?”

Woods did grant Nungesser the chance to try again with an amended complaint, and his lawyer has sworn to “continue in our pursuit of justice.” Nungesser’s prolonged fight with the university won’t budge the opinions of the thousands of people who came away from last year convinced of his guilt—or, for that matter, of the thousands on the other side who believe that he’s innocent. But Nungesser’s second attempt, or a future case, could have implications for Title IX. As Brett Sokolow, a consultant who helps schools devise sexual assault policies and the president of NCHERM Group, told Inside Higher Ed last spring: “These Title IX suits are not faring well so far, but all it takes is one good win with the right set of facts and the right attorney, and a whole new venue of litigation will open up.”

Correction, March 16, 2016: This article originally misstated that Middlebury College and the University of Southern California had been forced to reinstate students “after failing to afford them due process.” While due process was at issue in California cases, it is still undecided. The Middlebury reinstatement was a matter of procedure awaiting the result of court proceedings. (Return.)