Paul Nungesser refiles Title IX lawsuit against Columbia University over Emma Sulkowicz mattress project.

Paul Nungesser Sues Columbia Again, but His Strategy Is Likely to Fail

Paul Nungesser Sues Columbia Again, but His Strategy Is Likely to Fail

The XX Factor
What Women Really Think
April 27 2016 10:50 AM

Paul Nungesser Tries Again To Sue Columbia ... Using a Strategy That Has Never Worked Before

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Emma Sulkowicz performs "Carry That Weight" at Columbia University in New York City.

Andrew Burton/Getty Images

Last month, Paul Nungesser—the Columbia University graduate who Emma Sulkowicz accused of rape and made infamous in her “Carry that Weight (Mattress Performance)” art piece—argued in a lawsuit that his alma mater had violated his rights by allowing Sulkowicz to brand him a rapist. A New York judge shredded that argument on the grounds that Nungesser had fundamentally misunderstood Title IX—the federal statute that protects victims of sexual assault, and that Nungesser is trying to turn to his own use—but he left the door open for a second attempt. Now, Nungesser has tried again, borrowing a legal strategy from other male students accused of rape—one that’s growing in popularity despite that fact that it has yet to work. 

In the new suit, Nungesser once again claims that by permitting Sulkowicz to carry her mattress in public protest after Columbia had found him “not responsible” for the alleged assault, the school violated his rights under Title IX, which prohibits sex-based discrimination at schools that accept federal funds. Nungesser’s previous suit misinterpreted what it means for discrimination to be “sex-based,” according to U.S. District Judge Gregory Woods: “Implicit in Nungesser’s claim is the belief that sex-based discrimination, for the purposes of Title IX, means ‘based on the act of sex’ rather than ‘gender,’” Woods wrote in March. This, he said, is “wrong,” as is Nungesser’s assertion 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.”

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On Monday, Newsweek reported that Nungesser had filed a new, 100-page complaint. This time, he seems to have figured out the meaning of “sex-based.” Accordingly, he will be arguing that Columbia discriminated against him “as a male.” As Newsweek explains, the complaint

urges the judge to consider “the case at hand if the genders were reversed,” and then proposes a scenario involving people named Paula and Emmet, with details mirroring what happened between Nungesser and Sulkowicz.
The new complaint also alleges that Columbia’s policies and practices “perpetuate the stereotype of the sex-driven male,” which violates Title IX. For example, the complaint says, Columbia’s policies include no examples of sexual violence involving a male victim and a female perpetrator, only female victims and male perpetrators, or gender-neutral victims and perpetrators. Also, it says, all videos shown during a mandatory sexual respect program for students focused on “violence against women” and not gender-based violence more generally. Further, the complaint alleges, the school’s sexual violence policies focus only on penetration as opposed to someone being “made to penetrate.”

Of course, it’s a fair bet that Columbia focuses on cases involving “female victims and male perpetrators, or gender-neutral victims and perpetrators” because cisgender women and people on the trans spectrum are so much more likely than cis-men to be the victims of sexual violence. A recent survey by the Association of American Universities found that 27.2 percent of female college seniors had experienced unwanted sexual contact in their time at school, as opposed to 8.6 percent of male seniors. Other studies have found an even larger gap: The Rape, Abuse & Incest National Network (RAINN) suggests that one in six women will experience rape or attempted rape, as opposed to one in 33 men.

Nungesser is far from the first accused perpetrator to try to spin this age-old sexual power dynamic into an argument that colleges’ attempts to punish rapists are a form of discrimination against men. Last spring, Inside Higher Ed counted “at least 68 pending lawsuits alleging gender bias by accused students, many of them filed in the last two years.” One of the most widely reported-on cases of this nature was initiated by former Vassar student Peter Yu, who argued after his expulsion 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.”

But the fact that campus justice systems mete out far more discipline to male perpetrators of sexual violence does not mean that they are biased. “Nobody will argue with you that [Title IX] doesn’t cover maleness, or that men as a class can’t be harmed,” Wendy Murphy, an attorney who has filed suits under Title IX, has told Inside Higher Ed. But no male student who has made an argument like Nungesser’s has so far managed to prove that his school targeted him for reasons directly linked to his sex. Newsweek argues that male students’ discrimination suits “have gained traction in recent months,” pointing toward cases, for example against Washington and Lee University and Brown University, that have “survived motions to dismiss.” Still, as Tyler Kingkade has reported at the Huffington Postthis line of attack has failed 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. (Male students accused of sexual assault have had more success arguing that their universities violated their due process rights.)

Precedent suggests that Nungesser’s case is unlikely to prevail. To win, he would have to prove that Columbia would have responded differently, for reasons directly based on gender, to complaints that an “Emmet” made against a “Paula.” It’s not enough to show that, for reasons outside of its control, Columbia’s disciplinary system has considered many fewer “Paulas” than it has “Pauls.”