Violation of Title IX
Gender harassment in violation of New York human rights law
Violation of New York civil rights law
Breach of contract
Violating a covenant of good faith and fair dealing
Unfair and deceptive trade practices
Estoppel and reliance (more about breach of contract)
Intentional inflicition of emotional distress
Negligence
Many of these rely on the claim of gender based discrimination. If he can’t prove gender based discrimination, he’ll have a tough time winning the case.
(The complaint as linked earlier in the thread is missing pages 53-55.)
The Title IX claim does not, as I understand it, require proof of disparate impact as would be the case in a straight discrimination case. Neither does the breach of contract, intentional infliction or negligence claims, although most of those claims appear to me to be filler frankly.
I would agree that the plaintiff will likely try and establish disparate treatment, that the school did not seek to protect him from the efforts of Sulkowicz because he was a man, but I don’t think it is required under the way that people currently talk about Title IX. It may be required for the state claims, I don’t know. But to me the interesting part of the case is the title IX claim.
The complaint says that Nungesser and his family repeatedly complained to Columbia’s administration. I wonder if it matters that Nungesser does not appear to have registered a formal Title IX complaint.
I could be wrong, but I don’t think the failure to file a claim with OCR is a bar to a civil suit. I’ve really only dealt with OCR on employment cases though
In the Columbia John Doe case, Doe alleged Title IX discrimination. Furman threw out the lawsuit: “Specifically, ignoring the complaint’s conclusory (and sometimes overwrought) assertions of ‘anti-male bias’—as the court must—there is no factual allegations in the complaint that plausibly suggest Columbia acted because of, rather than in spite of, plaintiff’s sex,” he said.
Nungesser is also alleging Title IX discrimination. I read the Furman ruling as saying that Nungesser, too, must not only prove that Columbia did bad things to him; for a Title IX complaint to prevail he has to prove that Columbia did bad things to him because he’s a man, and not for some other reason.
That’s where Twiqbal comes in. Iqbal, a Pakistani-American, was arrested and thrown into a high-security prison after 9/11, and then eventually pled guilty to some trivial offense. He alleged that he was targeted because he was a Muslim. The Supreme Court said it wasn’t enough to prove that Muslims were more affected by the post-9/11 sweeps; Iqbal had to prove that they were more affected because they were Muslims, and not for some other reason, and he failed to do that.
I think it is important to remember the difference between disparate Impact and disparate treatment. I imagine that the case discussed in the NYLJ article got dumped because while the plaintiff likely alleged that Columbia’s sexual harassment/assault policies discriminated against him/deprived him of due process, whatever, he could not credibly allege that this occurred because of his gender, rather than because of, for example, an institutional bias in favor of alleged victims regardless of gender. I think the current case however directly alleges that Columbia has applied its rules differently based on his gender. Like I said, interesting.
And Iqbal was substantively an immunity case that is important because it affected the federal pleading rules. The discrimination allegations didn’t really break any new ground. Again though, my experience here is limited pretty much to employment cases although I can’t imagine there is much difference
@Ohiodad51 so then Nungesser cannot prevail unless he produces some concrete examples where Columbia has stepped in and prevented a male from protesting or otherwise publicly stating his negative opinion about a woman?
That’s what he alleges, but what facts in the complaint, if true, would prove that Columbia applied the rules differently based on his gender? My understanding of the John Doe case was that the judge threw it out because Doe didn’t even allege any facts that would prove his case.
@dstark and @harvestmoon1, as a pure guess, I would assume that the plaintiff will try and produce evidence either that women who were subjected to harassment received some relief from the university, or that men who violated the rules were sanctioned. Proof of either may permit an inference that a decision to act in one way in one instance and another in this instance is based on gender. To me though the interesting thing is if Columbia defends by saying that Title IX does not require the university to take affirmative steps to protect a student from harassing behavior. I think a decision on those grounds, particularly from the appellate level, I think changes how we talk about title IX requirements.
@“Cardinal Fang” , I think that proof that the university punished men who harassed women probably gets him there the easiest. But let’s not conflate pleading standards with proof at trial. I don’t think anyone knows what kind of evidence comes out if the complaint survives a motion to dismiss.
Is that alleged in his complaint? My point is, in the complaint-- not at trial, but right in the complaint-- he has to allege facts that, if true, would prove that he was discriminated against because he was a guy. Otherwise the complaint doesn’t survive to trial.
I guess this is typical of such documents, but that document is jam-packed full of irrelevancies. He goes on and on about the texts, but Columbia found for him in the hearing, so what relevance do the texts now have? And he talks about how fine and upstanding he is, but non-fine, non-upstanding students are also entitled to fair treatment. I guess it’s standard to write those complaints that way.
Yep. Everything right now is an assumption, because all we have is the complaint. That’s why I said if. This case is potentially interesting because some things we assume to be facts might lead to a set of circumstances where some law gets made. There are certainly a cluster of cases headed to appellate courts now that deal with various aspects of how the OCR is requiring that Title IX be interpreted. This may be another one.
The complaint against me was amazing. I read the complaint and I couldn’t believe it. There was made up stuff.
The bottom line…I was accused of being God and not acting. When I finished reading the complaint, I was shocked. I thought only my parents thought I was God.
Now I know. My parents and some guy I don’t know think I am God.
If I was God, there would not have been a complaint.
I don’t see anything in Paul’s complaint that shows he was discriminated against because he was a male.
The complaint alleges causes of action. It doesn’t have to include all the facts or ways those allegations will be proven at trial. If Columbia doesn’t feel the facts are there, it can file a motion for summary judgment. This complaint probably includes many more facts than most.
@twoinanddone, you mentioned facts in the complaint. Show me a fact in the complaint that Paul was discriminated against because he was male.
Of course @Ohiodad is allowed to speculate, We do a lot of speculating on CC. I am speculating more on these rape cases during the last several months than I speculated on everything else over the last 11 years on here.
I like Ohiodad’s speculations. I don’t think that Columbia speculation about harassment is going to occur. That is my speculation.
