@momrath, probably not. 
People donât care about Nungesser. He is a pawn.
People care about title 9 and the dear colleague letter and libertarianism.
Might have to look for a new pawn.
I do like parts of Megan McArdleâs link and the last Washington Times link.
(Iâm omitting the âand libertarianismâ as I think thatâs a different issue.
Actually, I think people would care a lot, if they understood the situation, but it seems to me that they are for the most part unaware that tribunals at private colleges are not bound by what we think of as constitutional rights. Title IX to most people means equal spending for girlsâ and womenâs sports, and more recently the guarantee of a safe and violence free college environment, all good things.
But when parents get gobsmacked by the results of a Title IX sexual assault hearing â as happened to the parents of Paul Nungesser, Joshua Strange, Drew Sterrett, Louis McLeod and many others â they learn the shocking truth that if their children (read: sons) attend a private college and are accused of sexual assault, they can be held responsible and expelled by a college committee made up of librarians and philosophy professors and often fellow students â without regard for niceties like the right to remain silent, the right to a hearing before an impartial person, representation by an attorney, calling witnesses on oneâs behalf, cross-examination of witnesses, a written decision with reasons based on evidence introduced, a transcript of the proceeding, and an opportunity to appeal the decision, clear and convincing evidence and everything else weâve learned about our due process rights from decades of watching TV courtroom dramas. And worse, thereâs not a darn thing they can do about it because the courts will say, too bad, but the colleges are forced to follow the Dear Colleague mandates.
https://www.youtube.com/watch?v=ewEwnliupZ8&feature=youtu.be
Could those in this thread who are doing legal analysis indicate whether or not they are lawyers? It would help greatly if people started with âas a lawyer, this is how I see the issuesâ or âI am not a lawyer, but this is how I see the issues.â It makes a big difference in credibility of assertions. I am not a lawyer and I feel I get misled by people boldly stating things as if they are.
Ok. In reverse-ish order
@pizzagirl I am a lawyer. I clerked for a Federal District Judge many years ago ad spent the next twenty odd years in private practice doing civil litigation in Federal and State courts across the country. I now work for the government, and I am here to help (always wanted to say that). I have dealt with the OCR (Office of Civil Rights) in employment cases. I have never tried a Title IX case.
@ dstark. I agree that Nungesser (and Sulkowicz for that matter) are pawns in the larger culture war. Not the first time this happened, wont be the last. I agree that the simple designation of someone as a rapist is not ipso facto harassment based on gender (women can be rapists too). But if the actions of the school are affected by the gender of the person claiming to be harassed, that is, in my opinion, enough. Also, see the forest for the trees. If Title IX does not impose a duty to protect Nungesser from the actions of Sulkowicz and the professor (donât forget him, or the campus group) in an allegation of sexual misconduct harassment (which this pretty clearly is) then in what circumstances would a college be compelled to affirmatively act? That is the real issue in the case for me.
@momrath. Remember that these are trial level decisions. Neither Yu nor Doe have any real precedential value (value as guidance in other cases) until and unless the Circuit Courts of Appeal deal with them. Also, there is a big difference between losing on summary judgment, where the court says the facts which have come to light through discovery do not allow for relief, and a dismissal on the pleadings, where the court says that even if everything in the complaint is true, you have no claim. Lots of cases get dumped on summary judgment. Very, very few go out on a motion to dismiss. And I think you were the one who asked if the ruling on the Motion to Dismiss in Doe can be appealed, and the answer is yes, every decision that disposes of a case at the District Court level has an appeal as of right to the Circuit Court of Appeals.
@âCardinal Fangâ I would caution not to read to much into a district court opinion on a motion to dismiss in a different case, especially when that opinion is written by a Judge who has only been on the bench a couple/three years. I will say that in my experience, most Judges would find that an allegation that Nussinger was treated differently because of his gender (of which there are ample here) would be sufficient, on its face, to survive a motion to dismiss. Apparently you believe that Judge Furman would disagree, although I havenât read the Doe complaint or his decision in full. I think that it is really hard to understand the minutiae of what is important in a case at that stage without having a fair grounding in federal procedure. Heck, yesterday I got a 53 page opinion from a district judge on a jurisdictional motion, and I have no idea what it says. This is really scary because the Judge was my Fed Jur professor in law school! I would also repeat my comments directed to @dstark. The interesting thing is what is the scope of Title IX? Does it extend to affirmatively stopping harassing behavior? Is harassment based on a sexual act ipso facto proof of gender based harassment? This is simply not set up as a case that deals with how the disciplinary process is structured, and I am not sure that those cases, particularly from courts at the same level (meaning trial level courts) are instructive.
@Ohiodad51, So I donât misunderstand you, If Columbia acted the way it did because of the gender of the person who was harassed thatâs enough.
I donât think I disagree.
My questions are did Columbia act the way it did because Paul is a male? Because Paul is a male is proof enough Columbia acted the way it did because of Paulâs gender?
Are you saying because Emma is a female and Paul is a male, this is automatically a title 9 case?
The question does title 9 impose a duty implies you think this is a title 9 case.
You donât think Columbia is going to argue this isnât a title 9 case?
OK, I just read through Furmanâs opinion in Doe. It is a very aggressive interpretation of Rule 12, even in a Circuit that tends to read Rule 12 narrowly. I have never seen a Judge on a Motion to Dismiss say that he is compelled to disregard âconclusory allegationsâ in the Complaint. Since I am a defense lawyer, I would love it if they did since Motions to Dismiss are decided before discovery, what the heck else does the Plaintiff have except âconclusory allegationsâ? The fact that Judge Furman cites to cases stating that it is ok to disregard conclusory statements of law in a complaint âthe actions of the defendant deprived plaintiff of his due process rightsâ to argue that he must disregard conclusions of fact âthe plaintiff was not given adequate opportunity to introduce evidence on his behalfâ makes me wonder how hard he was trying to keep the Doe case off his desk. Essentially, Judge Furman applied a summary judgment standard to a motion to dismiss, and kicked the case out because the Plaintiff had no evidence to back up his âconclusory allegationsâ. This is a huge reach, which Judge Furman effectively acknowledges in the last couple paragraphs of his order saying that he doesnât mean to do what he has just done, and make it impossible to bring a private claim under Title IX, and if in fact a plaintiff does happen to have articulable evidence from some outside source (that is not conclusory) of direct discrimination, then maybe, kinda sort a, the case would survive. I still donât think it has any precedential value in this case, and I would be surprised if it is not at least modified and remanded by the 2nd Circuit when it gets uo there in a couple years, but if you just read it cold I think I see now why people would think the current complaint doesnât state a Title IX claim. I havenât been in the Southern District since Furman has been on the bench, but I would be surprised if there are many other judges who are willing to take as aggressive a position on Rule 12 as he did in Doe. We will see.
Now weâre getting somewhere, @Ohiodad51. You now agree that Furman did what I said he did, but you say it was an unusual interpretation of the law and the relevant cases. As I understand it, you donât expect other judges to follow this line of reasoning and dismiss similar cases.
So letâs say this case comes to trial. What evidence would Nungesser need to bring to show that his treatment was because of his gender? Do you agree with Furman that proving disparate impact is not enough to prove disparate treatment for Title IX cases?
1)No, proof of gender is not proof that the action was based on the personâs gender.
2)I donât think the fact that Paul is male and Emma is female makes it a Title IX case. I think that there has to be proof that at least suggests that if the situations were reversed, Columbia would have acted differently (punished a man for breaching confidentiality, disciplined a man for harassing a woman, something like that) before Title IX is triggered. I think the debate at present on this board is whether there has to be specific facts to that effect alleged in the complaint to survive a motion to dismiss. My contention is that in the majority of district courts, there do not and the allegation is sufficient to proceed to discovery. At summary judgment the plaintiff better have those facts though or he will be SOL (to use a legal term).
3)I think the complaint raises what lawyers call a colorable claim under Title IX. That means that given the right set of facts, the statute may be triggered or it might not. As I said up the thread, this is how the law usually develops. One case comes along with a certain set of facts and the courts say nope, not this time. Then another case comes along and some of the details are different and the courts say, okay, this case permits recovery. Rinse and repeat several dozen times, and patterns emerge as to which facts are important to trigger protection under the statute. We are in the very first stages of this phase of Title IX litigation. How far this litigation extends is anyoneâs guess, because we donât know if OCR will continue to be this aggressive, especially with a new administration coming in.
4)What I mean when I say that I assume Columbia will argue that it doesnât have a duty to protect Paul here is exactly that it is not a Title IX case.
I like your posts. They are helpful.
If it is successfully argued that Paulâs case is not a title 9 case, then what you wrote is not going to come into play, right?
How is it going to be determined what title 9 imposes if this turns out not to be a title 9 case?
I wonder what Paul filing this suit means re: Adam, the mysterious male accuser found by Jezebel? It seems like it wouldnât be the smartest thing for Paul and his lawyer to file suit against Columbia if he has a pending complaint with either the school or the OCR.
@âCardinal Fangâ I think Judge Furman was very aggressive. I would guess that he will get remanded if not outright reversed in the 2nd Circuit. I donât want to sound like a jerk, but I donât think his language is as broadly applicable as you seem to, and I donât think that it applies in this situation. It is difficult to broadly predict results on 12(b)(6) motions (the stage of the case in Doe) because they are of necessity fact, or at least assertion, driven. I think the conclusion you can draw from Doe is that until and unless it comes back to him, Judge Furman can be assumed to be hostile to Title IX cases alleging defects in the disciplinary process. Outside of that, as a lawyer I would have difficulty trying to draw lessons from that decision.
You are conflating disparate impact with disparate treatment. They are generally viewed as two paths to the same goal. One does not require the other. The reason Judge Furman talks about them together is because Doe brought claims under both prongs, not that they are both required. Judge Furman analogizes a Title VI case holding that Title VI does not permit recovery in disparate impact cases to Title IX, and uses that analogy to disregard the allegations in the Doe complaint of disparate impact. I donât know what the 2nd Circuitâs position on disparate impact is on Title IX cases. I know generally there is some debate whether Sandoval applies to Title IX cases across the board, just donât know where the 2nd comes down presently.
Let me answer your question about kind and quality of evidence this way, because I think I know where you are trying to go. It helps to think of civil litigation in waves. At the 12(b)(6) stage, are there allegations that, if true, satisfy every element of your claim? At the Rule 56 (summary judgment stage) could a reasonable person, looking at all the evidence produced in discovery, believe the plaintiff on each element of his claim? At trial, did the plaintiff prove each element by a preponderance of the evidence? Keeping that in mind, I think you would be hard pressed to find a competent lawyer who would argue that proof that Columbia took affirmative steps to stop, for example, a man who was facebook stalking a woman, let alone actually stalking her, was not sufficient evidence to show that Columbia treated Paul differently because he was a guy. Same with proof that Columbia had disciplined a guy for breaching confidentiality, making rude, sexually suggestive comments, etc. My guess is you would agree with that. I think our disagreement lies in how specific allegations of such events need to be to survive the first âwaveâ in these proceedings. My opinion is that the specificity of allegation rises at each of the three waves. An allegation that Columbia did not take steps to protect Paul because he is a guy is probably enough at the first stage, but not the second. What I am trying to make clear is that looking at pieces of Judge Furmanâs opinion dealing with a completely different kind of case and trying to apply them to this situation is problematic. Although Furmanâs language is certainly broad, the cases are just substantively different.
I have a hypothetical case for you, @Ohiodad51. Iâm trying to strip down the issue here.
Letâs say I get an F in a class at Columbia. I claim that I was discriminated against because I was a woman. (Letâs assume that this, if true, would be a Title IX violation; I think it would be. For the purposes of the hypothetical assume it is.) I bring my concerns to the administration, and they do nothing.
So I sue Columbia for a Title IX violation, for allowing this professor to fail me because I am a woman. My suit includes various allegations of the goodness of my work in the class and how deserving I was of good grades. I make a bare assertion that I was the victim of gender-based discrimination, that my professor discriminated against me because of my gender and that the administration discriminated against me because of my gender. Nothing in my complaint gives any reason for my belief that my bad grade was the result of gender discrimination instead of some other reason.
Columbia files a motion to dismiss, just like they did in the John Doe case. Do you say the judge is likely to allow the case to go through discovery, or would they do what Furman did and dismiss?
@dstark, OK, now I think I see what you are asking. Think of it this way. The first question is always does the statute cover the situation at hand. If a court decides that Title IX does not require a college to take affirmative steps to protect a student from harassing behavior from another student in this case, then that decision will inform other colleges when trying to decide if they are required to act in similar circumstances. Right now, there seems to be a belief that Title IX requires schools to broadly provide an environment that is âsafeâ and âfree from harassmentâ. If a court here says no, Title IX doesnât require that under these facts, thatâs going to effect how broad we think Title IX is in other situations. Make sense?
In the comments on the Bloomberg article linked above, someone asks if, under Title IX, Columbiaâs actions (or lack thereof) have to be gender-based, or if it is enough that Emmaâs are, and the university just defends/assists her or is otherwise complicit, however actively or passively?
An alleged lawyer responds that he thinks Paulâs complaint reads more like a hostile environment claim rather than a direct discrimination allegation, and that this offers the plaintiff more latitude?
I donât claim to understand all of this terminology, if anyone cares to chime in? Thanks.
CF: There is a difference in that the harassment of Paul was the direct result of him being accused, but found not responsible. Emma was unwilling to accept this and Columbia may have aided her in continuing to proclaim his guilt, even though he was found to be not guilty. This is not a dispute over grades and the reality is that his life at Columbia was impacted simply because he was accused of a crime that (based on the type of crime reported) can only be done by a male.
@Ohiodad51, donât we have two different possibilities here? The court could decide that Nungesser did not prove he was subject to gender-based harassment, and therefore Title IX doesnât apply (deciding on the facts), or they could decide that he was subject to gender-based harassment, but nevertheless Title IX does not require a college to deal with that particular kind of gender-based harassment (deciding on the law).
In previous posts you said the interesting question would be If they decide on the facts: this harassment wasnât gender-based, and therefore Title IX doesnât apply. But then Iâm not sure how that helps other colleges, because in a different situation, with different facts, the harassment might be proven to be gender-based.
I donât see why the alleged crime could only be done by a male. Not to get too graphic, but lesbians, fingers and sex toys exist. Suppose Sulkowicz had accused a woman, Columbia had found the woman not responsible, and Sulkowicz had done exactly what she did in the Nungesser case. Seems to me Nungesser wants us to believe that Columbia would have acted differently.
@âCardinal Fangâ I will try an d be as clear as I can and not ramble.
1)Assertions of the quality of your work, and your deservedness of a better grade do in fact give reason for your belief that your bad grade was based on gender. Not proof, that comes at the second wave, but but a rational basis for the belief. So yes, on that record, I believe that most Judges let the case go to discovery because they will decide you should be at least entitled to test your theory as to why you got the F in discovery.
2)Add in that there was a guy in the class who never showed up for class but got extra credit anyway and the professor talked about how everybody should be nice to the guy and you are farther down the path.
3)Most fundamentally, and keeping with your analogy, think of two cases. In case one, girl A gets an F in calculus even though she alleges she did great work, followed all the rules and went through the grade appeal process where the panel said you probably deserved at least a B, but this professor just thinks girls stink at math and academic freedom means we canât do anything about it. She alleges that she tried to get tutoring help from the math department but got shut down numerous times, even though the department handbook says tutoring is available to all students. She also alleges that there was a guy in her class who the professor always praised as a model student even though he never showed up for tests, didnât turn in his homework but still appears happy with his grade. In case two, girl B gets an F in calc, goes through the appeal process and the panel says nope, you deserved an F.
Girl A sues saying she met all the requirements of the class to pass, was told she did fine by the university grade appeal process but was given an F anyway. She thinks this is because she is a girl because of the slacker dude in her class and because she couldnât get tutoring services. Girl B sues and says hey, I think more girls lose their grade appeal in math classes than boys, because everybody knows that math teachers think girls suck at math and should stay home and bake cookies. Do you think that the way a court decides case 1 means anything in how it will decide case 2? That is kind of where you are at in trying to draw conclusions from Doe and apply them to this case. They are just different cases, alleging different things.
@bearpanther simply put, hostile environment means harassment in the sense that some one is picked on or made uncomfortable because of their gender. Discrimination is someone is treated differently under the same circumstances because of their gender. I would agree with the point that a harassment claim gives the plaintiff more latitude both at the pleading stage and summary judgment.
From a new Cathy Young article:
Comparing Emma with Landen Gambill, and why she thinks they are different:
"Drawing the line between legitimate speech and harassment in such cases can be difficult. Two years ago, University of North Carolina student Landen Gambill was disciplined for âdisruptive or intimidating behaviorâ for airing her grievance after a campus panel exonerated the ex-boyfriend she accused of abuse. The sanctions were later dropped; the Foundation for Individual Rights in Education, which often defends the accused in campus sexual-assault cases, supported Gambill on free speech grounds.
But regardless of the merits of that case, there are important differences. Unlike Gambill, Sulkowicz took deliberate action to publicize Nungesserâs name (despite Columbia policies that urge everyone involved in sexual misconduct cases to respect the partiesâ confidentiality). Whatâs more, her activism personally targeted Nungesser; she said she would carry the mattress as a symbol of her victimization until either she graduated or Nungesser left the school."
On the schools response to the mattress carrying:
"The suit claims that the university essentially endorsed Sulkowiczâs mattress protest in a number of ways: by allowing her to perform it as a visual art project for college credit; by letting her take the mattress into the library and other buildings against the rules; and by not charging two campus groups for cleanup after a protest that denounced Nungesser as a âserial rapist.â
The complaint also names Columbia professor Jon Kessler, who supervised Sulkowiczâs âartâ project, and university president Lee Bollinger. Bollinger has expressed sympathy for Sulkowicz, on one occasion saying it was âvery painfulâ that a Columbia student âfeels that she has been a victim of mistreatment.â Yet he has not expressed concern about another student who feels mistreated despite complying with the rules and going through a process that exonerated him. Nor, despite pleas from Nungesserâs parents, did Bollinger affirm the integrity of the universityâs disciplinary process and stand by its results."
That last sentences expresses a point that has been bothering me about this whole thing. The school made a decision regarding whether Paul violated the rules, and found he did not. They may not have liked the decision, but thatâs no excuse to inflict this roundabout punishment on him.
Iâm almost beginning to think he would have been better off getting quietly suspended for a semester or two than have this art piece that got so much publicity.
@ohiodad51, hmmmmm
Right. In Paulâs case, isnât Columbia going to argue title 9 doesnât cover the situation? If Columbia winsâŠ
Is the following going to be addressed?
Title 9 is about sex discriminationâŠif there is no sex discrimination, why would title 9 come into play?