I checked out paragraphs 141-143. They contain many assertions that Nungesser was the victim of gender-based discrimination in various bad acts committed by people associated with Columbia. But I saw nothing that showed that those bad acts were a result of gender discrimination, rather than incompetence or hatred of foreign students or any other reason. I read those statements as “conclusory;” they conclude that Nungesser was the victim of gender discrimination, but don’t allow the reader to understand the basis for that conclusion. The court has to accept alleged facts as true when initially evaluating a claim, but it does not have to accept conclusory statements as true.
If you follow Furman’s line of reasoning for these Title IX gender discrimination cases, then the initial complaint has to state a basis for believing the alleged bad acts are a result of gender discrimination rather than something else. Merely asserting gender discrimination is not enough. Otherwise, at least if your case appears before Judge Furman, the case will be thrown out for failing to state a claim.
I don’t want to sound like a jerk, but this is kinda complicated stuff. The OCR guidelines in and of themselves have no jural significance. It is the existence of Title IX which provides the vehicle for the suit. Title IX is the law which grants the rights that were allegedly violated. In the broad sense you are describing, all Title IX suits are similar, because they are all Title IX suits if that makes any sense. The devil is as always in the details.
I will agree with you in so far as the Doe case (depending on what the 2nd Circuit does with it) may be relevant in another Title IX case challenging the procedures used in a disciplinary hearing. If you will stay with me for a minute, the presumed argument in cases like that will be some variant of the following: the guidelines promulgated by OCR require colleges to conduct disciplinary hearings in a certain way, and the way these hearings are conducted does not provide sufficient due process protection. This due process failure has discriminatory effect, because there is a disproportionate impact on men vis women. Obviously Judge Furman did not feel that the complaint in the Doe case hung together in such an argument. We will see what the appellate court does, and then we will have a bit of law. My suspicion is that if there were actual specific allegations of selective enforcement, Furman may get reversed. But I learned long ago not to try and guess what an appellate court will do without at least seeing the briefing.
The current case is completely different. There is no allegation that the disciplinary process is flawed. There is no due process argument. There are allegations that Columbia participated/allowed harassment in the primary sense. The question then is what duty, if any, does Title IX impose on colleges to “protect” students from harassment based on gender. Determining what duty is imposed may also involve a question of whether Columbia has assumed a duty to protect women in such situations, but I am not really sure if that is required. The challenge in this case may be proving that the harassment was gender based, and proof that the college took steps when women were being harassed probably helps there, so it may be a distinction without a practical difference.
Nungesser alleges two things in paras 141-143: He alleges that Columbia failed to protect him from Sulkowicz’s gender-based harassment, and that Columbia itself engaged in gender-based discrimination.
But before we decide whether Title IX imposes a duty on Columbia to protect Nungesser from gender-based harassment, we must conclude that Sulkowicz harassed him because of his gender. And before we decide that Nungesser is entitled for relief under Title IX for gender-based discrimination by Columbia, we have to conclude that Columbia discriminated against Nungesser because of his gender. Nothing in that suit (taken by itself) makes me conclude that he was the victim of gender-based harassment or gender-based discrimination. Even if Columbia acted badly and Sulkowicz also acted badly, Title IX doesn’t come into play unless they acted badly because of his gender and not for some other reason. That’s what’s lacking in the complaint, as far as I see it.
One could say (and I think this might be alleged in another part of the complaint) that Columbia was in breach of contract for not defending Nungesser against harassment, whatever the motive of the harassment. That’s a different thing. But for the Title IX claims, he has to prove that the mistreatment was because of his gender, and I don’t see where he lays out the sketch of that argument.
According to the Times article (unless I missed it) Bollinger said:
He notes that the college has an obligation to accommodate Paul’s concerns, which they clearly did not. I would think that there may be cases at Columbia in which a victim reported being harassed by the accused or his friends and associates and the school stopped it (or at least tried). In this case, not only did they not stop it, they encouraged it. Emma may not have named him, but she gave plenty of identifying information.
Personally, I believe that colleges are not in any way equipped at this point to do what they are being asked to do by the OCR. Colleges simply do not have the ability nor the expertise to handle quasi criminal proceedings. Until they learn to do so, or the OCR backs off, we will continue to see situations like this, where at the end of the day two young people will be defined for the rest of their lives by something they did in college. That’s just tragic.
@dstark, if in fact Columbia tried to protect a woman from harassment, but chose not to do so in this case, what else could it be but discriminatory? At the very least, if those are the facts, the plaintiff should be entitled to a presumption.
But it was because of his gender in that he was accused as a male and he was subject to the confidentiality order and she was not. The school clearly looked the other way in allowing her to continue to harass him. CF may be correct that the evidence in the complaint does not show that Columbia treated women differently in similar situations, but that may come through discovery or other records review. And maybe it won’t be easy to prove, as one case does not make a pattern.
He’s stated the claim in the Complaint (that the school acted in violation of Title IX for one). You are confusing failure to state a claim with failure to PROVE the claim in the Complaint. He does not need to prove the claims in the Complaint. He doesn’t have to provide all the facts or any facts for that matter. The Complaint is just allegations. If the defendant(s) don’t want a trial, the Def. can file a motion for summary judgment, admit all the facts the plaintiff alleged in the complaint (is it a verified complaint?), through other affidavits, deposition citations, documents, the Columbia rules for Title IX hearing. I suspect the John Doe (former boyfriend of Emma who Paul talked to and Emma got the STD from) will have a lot to say as a witness at trial. More facts and testimony. Whatever. A complaint can allege all kinds of things that the plaintiff has to prove at trial. Many plaintiffs serve discovery motions with the complaint, starting the case off before the defendant(s) file an Answer.
The complaint is actually more specific than most with all the FB quotes, emails, texts. Most complaints don’t include many facts at all, no quotes, no affidavits. Paul and his team knew the complaint would be public and they wanted these texts put out to the public. If they saved all the texts for the Perry Mason moment at trial, the public might never get to see them and this way we have. Federal trial are off camera too, and often the exhibits are not available for public view. Paul and Company have made sure some are in full public view.
I’d have to agree with @cardinalfang’s reading of the John Doe v. Columbia case, and I think the same applied to the Peter Yu v. Vassar case. I believe that Nungesser’s case is a bit different since he suffered harassment in which the college both actively participated in and passively failed to prevent, even though the college found him not responsible for sexual assault.
I find the John Doe and Yu decisions discouraging because, other than the discrimination angle, there doesn’t seem to be any legal recourse to remedy what I view as violations of basic due process rights in these private college proceedings. (And I think many parents of college students and Americans in general would agree, were they aware of what’s going on.)
I accept that college Title IX proceedings are not criminal courts per se; however they do deal with felony crimes. Calling the trials hearings, the plaintiffs complainants, the defendants respondents, the verdicts decisions doesn’t change that. The investigations and hearings operate under the fuzzy directive of the OCR’s Dear Colleague Letter resulting in opaque, due-process-less trials and often severe life altering verdicts.
I’d like to see a legal challenge along the lines of what @ohiodad51 describes “claiming that the Title IX guidelines from the OCR and the procedures set up by the Universities are violative of the due process clause.” I’m not clear who could actually bring such a challenge, a college or a wrongly accused student. I imagine attorneys like Miltenberg et al would have thought of that if it were feasible. Perhaps that’s where these cases are heading.
This is a thoughtful article by Bloomberg’s Megan McCardle who feels that Nungesser will not be successful in holding Columbia responsible for Sulkowicz’s behavior. She goes on to discuss the double standard and bias baked into the Dear Colleague mandates.
I have another question: In the Peter Yu case Judge Ronnie Abrams decided in favor of Vassar. I understand that that decision can and will be appealed. The John Doe/Columbia case was dismissed by Judge Furman. Can a dismissal be appealed?
I suggest that you read the Furman dismissal of the Columbia John Doe case, where Furman discusses at great length what is required in a Title IX complaint in order for it not to be dismissed for failure to state a claim. Here’s his conclusion.
Just like Nungesser, John Doe asserted repeatedly that he was the victim of gender discrimination. But the Court didn’t buy it, absent factual allegations. Why would Nungesser’s complaint be treated any differently?
I don’t have strong feelings for the Nungesser case one way or another. I’m glad he was found not responsible and I think it’s unfair that his college experience has been so miserable.
I do feel strongly, however, that Peter Yu and John Doe should have prevailed not just because they were discriminated against, but because the proceedings – as mandated by the Dear Colleague letter – are, to me, biased, unjust and just plain wrong. If the several pending lawsuits making similar charges are similarly dismissed or decided in favor of the college, then the next wave of wrongfully accused will have to come up with another tactic.
I’d write to my senator, but don’t think I’d get far in New York.
