A defamation lawsuit seems like a far more promising avenue, given the exculpation of Nungesser on at least two occasions and Columbia’s idiotic decision to display Sulkcowicz’s prints identifying him by name.
While I can understand that the attorneys are looking to sue the university rather than Sulkcowicz, a defamation lawsuit doesn’t preclude that. In Hazelwood v. Kuhlmeier, the Supreme Court found that a difference exists between free speech in a school (letting students voice their opinions) and the promotion of that speech (publishing an article in the school newspaper). The former means leaving students be while they express an opinion, while the latter constitutes an endorsement of a student’s viewpoint.
In this case, one could argue that letting Sulkcowicz carry her mattress around does not constitute a violation of Nungesser’s rights, but sponsoring an exhibit portraying him as a rapist is an endorsement of her accusations by the university - this after Columbia’s own process led to a finding that Nungesser didn’t rape Sulkcowicz - is another matter. If the university is promoting accusations a university panel has found to be false, that’s defamation - and Columbia may well be liable for the consequences, including the job offer Nungesser lost and the potential damage to his reputation and job prospects. The latter element is hard to value, but given the job prospects of a Columbia grad, it could easily lead to a multimillion dollar award.
This exhibit exposes the university in a way the original complaint didn’t, and I’m not sure what the thought process was behind it - that is, if the people organizing the exhibit did any thinking at all.
It is interesting that the Court gave them thirty days to file an amended complaint. In my experience, that is a fairly unusual step unless there is a hyper technical reason to grant the motion to dismiss in the first instance, which does not appear to be the case here. Would be interesting to read the opinion on the Motion to Dismiss.
@NotVerySmart I agree with you - see my post #97. And especially so since what she alleged did not technically constitute rape under NY law (although I believe legislation is under way to change that definition.)
But one has to be very careful with alleging defamation in sexual assault cases and I am sure Miltenberg has looked at it. He does have one case pending at Brown where they did allege defamation - very different set of facts.
@klingon97 The case was dismissed, but Nungesser was given 30 days to amend his complaint to claim defamation rather than Title IX claims against Columbia. I think he has a good chance of success, and certainly hope he gets a pile of money.
@EarlVanDorn According to the NYT, he failed to file an amended complaint. Columbia, in the meantime, has apparently filed counter charges. He faces an uphill battle.
It was in Columbia Spectator. I’ll find it. Your view that he has a strong case seems to run counter to most legal opinion. Indeed, at Columbia and Barnard, many students were outraged that he was allowed to continue in residence.
I don’t think he missed the window yet, but the judge laid out what they cannot argue. While a setback it appears to me that those arguing that “men” are being discriminated against under IX, even if they are in my opinion, are not winning and they gave the University a wide-open barn door regarding confidentiality in my opinion. Probably best to stick with harassment and defamation of character. Hard not to admit he was harassed and defamed. Nungessor still has remedies both from the Sulkowicz family and potentially from the college with a reworked filing and the judge left that door wide open albeit with a 30 day window…a proverbial Plan B.
Paul Nungesser has indeed filed a new motion, this time alleging different types of Title IX violations, violations of human rights law, breach of contract and intentional infliction of emotional distress as per the link below.