Nungesser v. Columbia Univ.

• Decision Date: 11 March 2016
• Docket Number: 1:15-cv-3216-GHW
• Citation: 169 F.Supp.3d 353
• Parties: Paul Nungesser, Plaintiff, v. Columbia University, Trustees of Columbia University, Lee C. Bollinger, and Jon Kessler, Defendants.
• Court: U.S. District Court — Southern District of New York

169 F.Supp.3d 353

Paul Nungesser, Plaintiff,

v.Columbia University, Trustees of Columbia University, Lee C. Bollinger, and Jon Kessler, Defendants.

1:15-cv-3216-GHW

United States District Court, S.D. New York.

Signed March 11, 2016

Andrew Todd Miltenberg, Philip Arwood Byler, Nesenoff & Miltenberg, L.L.P., New York, NY, for Plaintiff.

Michele S. Hirshman, Roberta Ann Kaplan, Caitlin Elizabeth Grusauskas, Darren Wright Johnson, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge

In 2013, Paul Nungesser was accused of rape by fellow Columbia University (“Columbia”) student Emma Sulkowicz. Sulkowicz filed a complaint with Columbia's Office of Gender-Based Misconduct, and, after an investigation and hearing, Nungesser was found “not responsible” for “non-consensual sexual intercourse.” Notwithstanding the outcome of Columbia's investigation, Sulkowicz maintained that Nungesser had raped her. Over the course of their final year at Columbia she became well known as an activist campaigning to raise awareness of sexual assault on college campuses, and her senior thesis project, known as the Mattress Project (Carry That Weight) (the “Mattress Project”), received widespread media attention.

Nungesser alleges that Columbia, by permitting Sulkowicz's activism and awarding her academic credit for the Mattress Project, violated his rights under Title IX of the Education Amendments of 1972 (“Title IX”); he also brings various related state-law claims against Columbia, Columbia President Lee Bollinger, and Professor Jon Kessler. As it considers these claims, the Court is mindful that its role is limited: it does not “advocate for best practices or policies,” or even “decide whether Columbia treated Plaintiff fairly or unfairly.” Doe v. Columbia Univ. , 101 F.Supp.3d 356, 376 (S.D.N.Y.2015). The Court's task is to determine whether Nungesser plausibly alleges a claim for gender-based discrimination under Title IX, or otherwise states a claim under New York state law. For the reasons that follow, the Court finds that Nungesser fails to state a claim, and thus Defendants' motion to dismiss is GRANTED.

I. Background¹

Nungesser, a German national, is a 2015 graduate of Columbia. Amended and Supplemented Complaint (“Amended Complaint” or “AC”), ECF No. 26, ¶ 3. In April 2013, Sulkowicz, who, like Nungesser, was a sophomore at Columbia at that time, filed a complaint with Columbia's Office of Gender-Based Misconduct alleging that Nungesser raped her in August 2012. AC ¶¶ 32, 37. Nungesser maintains that he and Sulkowicz engaged in consensual intercourse. AC ¶ 26. After Columbia conducted an investigation and held a hearing on October 29, 2013, Nungesser was found “not responsible” for “non-consensual sexual intercourse.” AC ¶ 34.

The core of the allegations in the Amended Complaint concern what Nungesser describes as Sulkowicz's efforts to brand him as a “serial rapist” during and after the investigation into the August 2012 incident. AC ¶ 46.

A. Incidents Before Nungesser's Name Was Made Public

Nungesser alleges that in addition to filing her complaint, Sulkowicz sought to label him a rapist within the Columbia community. Shortly after Sulkowicz filed the incident report, she encouraged the president of Alpha Delta Pi—the coed fraternity of which she and Nungesser were both members—to notify its alumni board and several other ADP members that an alleged rapist was living at ADP. AC ¶ 47. This notification occurred. Id.

Nungesser asserts that Sulkowicz also encouraged other Columbia students to file complaints of gender-based misconduct against him, and that two female students and one male student eventually did so. AC ¶¶ 38, 100. In April or May 2013, shortly after Sulkowicz filed her complaint, a woman referred to as Jane Doe 1 filed a complaint alleging that Nungesser grabbed her at a party and tried to kiss her. AC ¶ 39. Columbia ultimately found Nungesser “not responsible” for “non-consensual sexual contact” with respect to that allegation. Id. Around the same time, a second woman, Jane Doe 2, filed a complaint alleging that while she was dating Nungesser during their freshman year, she felt obligated to have sex with him. AC ¶ 40. Columbia terminated its investigation into Jane Doe 2's complaint without a hearing due to the lack of information of any alleged intimate partner violence. Id.

After Nungesser was found “not responsible” for the alleged rape, Sulkowicz began speaking with reporters. On December 3, 2013, Nungesser was approached by New York Post reporters in front of his dorm and was followed by one on his way to class. AC ¶ 48. Shortly thereafter, an article appeared in which it was apparent that all three of the women who had filed complaints against Nungesser had spoken to the Post, although his name did not appear in the article. Id. Nungesser alleges that his parents notified Bollinger of the incident prior to the publication of the article, but that no action was taken in response. Id. Sulkowicz also provided information and identified Nungesser to a student reporter, who subsequently published an article on Columbia's student news blog, BWOG, on January 23, 2014. AC ¶ 49. Like the Post story, the BWOG post did not identify Nungesser by name, but allegedly made him “easily identifiable to most of his peers on campus.” Id. Nungesser was advised by Columbia to remain silent when the BWOG reporter requested a comment from him, and was not notified by Columbia when the blog post was published. AC ¶¶ 50-51.

Approximately two weeks after the BWOG story, Bollinger announced a change in Columbia's policies with respect to sexual assault, and also announced that Columbia would release data on sexual assault complaints. AC ¶ 53. Nungesser alleges that these changes were prompted by the BWOG article. Id.

In April 2014, Sulkowicz made her first public press statement, in which she said that her rapist remained on campus. AC ¶ 56. She did not identify Nungesser by name. Id. On April 7, 2014, Bollinger announced further measures to address the issue of sexual assault at Columbia. AC ¶ 57. In May 2014, Sulkowicz published an op-ed in Time Magazine entitled “My Rapist is Still on Campus.” AC ¶ 59. Nungesser was not identified by name in the op-ed. See id. n. 20.

B. Nungesser's Name Is Made Public

In May 2014, at the end of his junior year, Nungesser's name was made public in connection with Sulkowicz's allegations for the first time. Columbia's student newspaper, the Columbia Spectator, published a story regarding Sulkowicz's allegations that named Nungesser as her alleged rapist. AC ¶ 63. Also in May 2014, a “rapist list” that included Nungesser's name appeared in multiple Columbia bathrooms, and fliers with the list were distributed at several Columbia events. AC ¶ 58. He was not notified by Columbia about the distribution of the lists. Id.

C. The Mattress Project

Sulkowicz undertook the Mattress Project, a performance art piece that involved carrying her mattress around Columbia's campus with her, throughout her senior year. AC ¶¶ 68-73. She publicly stated that the goal of her project was to “[g]et my rapist off campus.” AC ¶ 70. Professor Jon Kessler approved the Mattress Project as Sulkowicz's senior thesis project, for which she received class credit. AC ¶¶ 68, 72, 73. The Mattress Project received widespread media attention both nationally and internationally, and many of the news articles linked to the Columbia Spectator article that contained Nungesser's name. AC ¶¶ 79, 84.² The Mattress Project culminated in May 2015, when Sulkowicz carried the mattress at Columbia's graduation ceremony. She did so despite the fact that Columbia administrators had emailed graduating students and asked that they not bring “large objects” to the ceremony, and that administrators had spoken to her both before and during the ceremony, asking that she not carry the mattress. AC ¶¶ 123-28.

Both Bollinger and Kessler made public statements regarding the Mattress Project. Specifically, Kessler said that he discussed endurance art with Sulkowicz and was struck by the fact that she was “making an enormous statement for change.” AC ¶ 72. Bollinger said that he cared “about all of [his] students” and “when one of them feels that she has been a victim of mistreatment” it affected him. AC ¶ 76. Columbia also partially paid for the clean-up costs associated with an October 2014 campus rally organized by Sulkowicz and other student activists entitled “Carry That Weight National Day of Action.” AC ¶ 92. The rally focused on a list of demands signed by the activists, including a demand that Columbia re-open its investigation into Sulkowicz's complaint against Nungesser, who the activists described as an “ongoing threat to the community.” AC ¶ 94. In response, Columbia published a statement that said “our hearts go out to any students who feel they have been mistreated,” and promised to strengthen its policies related to preventing and responding to gender-based misconduct. AC ¶ 95. Columbia did not, however, reopen its investigation into Sulkowicz's complaint.

In addition to the Mattress Project, prints created by Sulkowicz—depicting images of her alleged assault superimposed over two New York Times articles describing her claims against Nungesser—were displayed the week before graduation as part of the Columbia University Visual Arts Program/Undergraduate Thesis Show Reception. AC ¶¶ 115-117. Columbia faculty approved the display of the prints, facilitated their installation, and supervised the exhibition. AC ¶ 119. Nungesser was not notified by Columbia that the prints would be displayed. AC ¶ 120.

D. Nungesser's Experience at Columbia

As a result of the events described above, Nungesser's social and academic experience at Columbia suffered. He states that he was precluded from attending on-campus career recruiting events, and, consequently, was unable to obtain...