Last May, a former Columbia University student sued the university over the circumstances around Emma Sulkowicz’s widely publicized “Mattress Project,” in which Sulkowicz vowed to carry a mattress around campus so long as the plaintiff, a man named Paul Nungesser whom Sulkowicz had accused of sexual assault, remained on campus. Nungesser’s lawsuit was dismissed on Friday. In addition to the interesting tactical aspects of the case—most prominently Nungesser’s decision to sue Columbia, but not Sulkowicz, who if Nungesser is to be believed has been defaming him—the dismissal is an important result in the growing campus battles over efforts to try to enforce prohibitions against expression or restrict the ability to give offense. In that sense the dismissal is a welcome result.
Sulkowicz accused Nungesser in 2013 concerning an encounter in 2012. The matter was reported to the university disciplinary board, which found that Nungesser was “not responsible.” Sulkowicz then made her accusations public, and began what she called Mattress Performance/Carry That Weight—stating her intention to carry a twin-sized mattress around the Columbia campus her senior year until Nungesser was expelled (he was not). Despite admonitions to students not to carry "large objects," Sulkowicz carried the mattress onstage when she graduated last year.
Nungesser sued Columbia, however, not Sulkowicz. He alleged that Columbia’s support for the Mattress Performance deprived him of educational opportunities on the basis of gender, the core of what Title IX protects against. In effect, he argued that by allowing Sulkowicz to brand him a rapist with impunity and/by actively encouraging her by giving her course credit, his educational access was hampered.
Taking Nungesser’s version of events as true for the moment, it is not hard to imagine that he could have a point as matter of causation. That is, if innocent, the atmosphere in which he was vilified would make it hard for anyone to continue with his studies.
That does not make it actionable as a matter of law, however. The First Amendment affords strong protections to Sulkowicz in the first instance. Moreover, to state a claim under Title IX Nungesser would have had to link a disadvantage based on his own gender, not simply because his claims arose out of a situation in which gender dynamics are, to say the least, fraught.
This he did not do, the U.S. District Court held Friday:
Nungesser’s argument rests on a logical fallacy. He assumes 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. He is wrong. Taken to its logical extreme, Nungesser’s position would lead to the conclusion that those who commit, or are accused of committing, sexual assault are a protected class under Title IX. The statute does not permit that result.
Nungesser had tried to meet this standard by arguing that the public opprobrium was directed at him because he was male, thus making the discrimination gender based. The court disagreed.
To the extent that Sulkowicz’s activism was aimed at Nungesser it was because of his conduct toward her (whether because of his rejection of her, as he alleges, or because of the rape, as she claims) not because of his status as a male.
In other words:
In this case, Sulkowicz’s use of the word was based on a particular event involving a particular male; it was not used as a generic term to disparage men, or Nungesser as a man.
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To hold otherwise would, in essence, create a new right of action under which all students accused of sexual assault could bring a Title IX claim against their educational institutions—so long as they could plausibly plead that the accusations were known to the institution and that the institution failed to silence their accusers—simply because the misconduct they were accused of has a sexual element.
One can debate the artistic merits of Sulkowicz’s performance, but that is very much the point. Columbia did nothing to hamper her expressive conduct, which fosters just that: expression. Trying to turn a university in loco parentis as a censor to expression that is uncomfortable is a direction with no clear end point. You may not like the expression being curbed, but what happens when the unpopular expression is yours? It highlights the tension between making a forum like a university a safe place for expression and making it a place where students are safe from potentially offensive expression. In addition, Nungesser’s complaint, which was well written and made a game attempt to fit its allegations within a legal theory, stretched the bounds of pleading with prurient details about Sulkowicz’s supposed sexual history with both Nungesser and with other men, in ways that were unnecessary to his claim. For that reason as well, this lawsuit will not be missed, though the court did give him the opportunity to replead his Title IX claim if he can, so we shall see).
Here’s hoping that the Southern District bookends this sound dismissal with the same result in the poorly-conceived lawsuit against the City of New York and the Metropolitan Museum of Art that exhibiting Euro-centric depictions of Jesus violates the Establishment Clause of the First Amendment (spoiler alert: it doesn’t). The answer to speech you find distasteful is more speech, not less.
