A former Columbia University student who is suing his alma mater for failing to stop his accuser from publicly harassing him has lost in court a second time.
For the second time, a judge has dismissed Paul Nungesser’s lawsuit against his university. This time the complaint was dismissed “with prejudice,” meaning the former Columbia student can’t make any more appeals.
Nungesser and his attorneys filed their original complaint in April 2015 but amended it in July of that year following his graduation. Manhattan federal judge Gregory Woods issued the ruling March 24.
Nungesser’s saga began in August 2012, when he engaged in sexual activity with fellow Columbia student Emma Sulkowicz. About seven months later, Sulkowicz accused Nungesser of raping her during that encounter. After Columbia found Nungesser “not responsible” for rape, Sulkowicz began talking to the school paper and would eventually engage in an art project in which she carried a mattress around campus to protest the school’s decision.
She called Nungesser her “rapist” in glowing media articles about her project, and spoke at campus rallies about sexual assault. The media continued to write about Sulkowicz’s art project well into 2015, repeating her claims of rape uncritically.
In February 2015, Nungesser told Newsweek contributor Cathy Young his side of the story, which he further detailed in his lawsuit.
Nungesser was able to produce Facebook messages from Sulkowicz from the days and weeks following the alleged rape. Sulkowicz claimed the two were having consensual sex, as they had done previously, when Nungesser allegedly turned violent and punched her, choked her and anally raped her as she asked him to stop. No photos exist showing her injuries, and no one has come forward to say she had bruises following the encounter.
Two days after this alleged violent rape, Sulkowicz responded to a party invite from Nungesser. She wrote, “I feel like we need to have some real time where we can talk about life and thingz” and “we still haven’t really had a paul-emma sesh since summmerrrr.”
A week later she invited Nungesser to hang out with her, and a month after that she wrote, “I love you Paul. Where are you?!?!?!?!” after Nungesser wished her a happy birthday.
Victims of sexual assault or domestic violence do not always react in ways outsiders would consider normal, but the messages do give an indication to Sulkowicz’s mindset following her encounter with Nungesser. Nungesser claimed in his lawsuit that he stopped interacting with Sulkowicz and believed the rejection may have led to her accusation.
Sulkowicz made the accusation after talking to several of her friends, who were part of the same friend group as Nungesser. One of these friends, an ex-girlfriend of Nungesser, claimed he was a bad boyfriend. Another claimed he kissed her without her consent at a party. The three all decided to make accusations against Nungesser. He was found “responsible” in the non-consensual kiss, but the decision was overturned on appeal.
After Sulkowicz became famous for her mattress project, a fourth accuser, this time a male, claimed Nungesser groped him. This fourth student, identified as “Adam,” claimed he spoke to Nungesser’s then-girlfriend (the one who would also accuse him) about the encounter right after it happened, but later said he didn’t know when he spoke to her and said he realized he didn’t say anything to her until months later. He said he avoided Nungesser after this alleged assault, but that the German native contacted him on Facebook to complain about Adam talking to his girlfriend.
Nungesser’s explanation was that he confided in Adam about his relationship problems, but never groped him, and was then upset to learn Adam told Nungesser’s girlfriend what they had talked about. When Adam turned over his Facebook messages to campus investigators, they backed up Nungesser’s version of events.
Despite being found “not responsible” numerous times, Nungesser was treated as guilty in the media, which continued to fawn over Sulkowicz’s art project. When the two graduated in May 2015, Sulkowicz was told she could not carry her mattress on stage, but she wasn’t stopped from doing so anyway. The school had previously sent out an email banning large objects at graduation. It seemed at the time like allowing Sulkowicz to bring her mattress on stage would help Nungesser’s lawsuit, but it didn’t.
Nungesser sued Columbia for allowing her to publicly harass him through her art project. During the senior art exhibition, Sulkowicz not only displayed her mattress, but also drawings she had made of her alleged rape, including drawings of Nungesser’s genitals.
In his first dismissal of Nungesser’s lawsuit, Judge Woods claimed the gender-based discrimination claim rested 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,” Woods wrote. “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.”
But Woods’ description would also affect accusers of sexual assault. Title IX has been used as a gender discrimination claim in sexual assaults because women are the primary accusers; therefore, not responding to their claims is somehow discriminating against them as part of a class.
Nungesser’s lawsuit was more complex than other Title IX lawsuits brought by male accused students. He was arguing that Sulkowicz’s art project — and the school and professor that sanctioned that art project — was harassment, since his name was leaked to the media and he was humiliated on campus. Nungesser returned to his native Germany after graduation, believing he couldn’t get hired in the U.S. after the negative media attention.
Judge Woods didn’t buy the harassment argument, and in a 46-page decision, wrote Columbia couldn’t have perceived that he was being harassed based on his gender, rather than his relationship with Sulkowicz.
One of Nungesser’s attorneys, Philip Arwood Byler of Nesenoff & Miltenberg, told the New York Post that he was determined to continue fighting the case.
“I’ve scanned the opinion and my view is that it’s mistaken,” Byler said. “We think we have a good appeal. We’re going to have to go to the 2nd Circuit [Court of Appeals] and get it done right.”
The 2nd Circuit has been more favorable to accused students than Obama-appointed judges.
In another lawsuit involving Columbia, a male-accused student sued after being found responsible for sexual assault, which he denied happened. Judge Jesse Furman dismissed the case, but the 2nd U.S. Circuit Court of Appeals reversed the decision. In that case, as in Nungesser’s, the lawsuit argued gender discrimination but district court judges refused to accept.
Judge Furman argued that Columbia was likely showing a bias against accused students, not men. The court found differently.
“A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex,” the court ruled.
Nungesser’s attorney, Byler, was the one who argued and won that 2nd Circuit reversal. Andrew Miltenberg, a partner at the firm where Byler works, expressed disappointment in Judge Woods’ decision, and echoed Byler’s assertion that he expects to win in the 2nd Circuit.
“From the outset of this case, Judge Woods has been decidedly closed-minded to Paul Nungesser’s claims,” Miltenberg told Watchdog. “Based upon that, we are not surprised with Judge Woods’ decision dismissing the second amended complaint. Still, we are exceptionally disappointed; Paul is a real victim, and the 100 page complaint is very detailed and clearly sets forth substantial claims including violations of Title IX, basic principles of equity and beyond.”
He added: “It’s quite telling that well before this case started, the public commentary has been virtually unanimous in its outrage at Columbia University’s treatment of Paul. We have every intention of appealing the decision and expect that the second amended complaint will be reinstated and the case with proceed.”
Nungesser will not comment at this time, but his parents, Karin and Andreas Nungesser, released their own statement regarding the decision: “We are disappointed but we are looking forward to bringing the case to the U.S. Court of Appeals for the Second Circuit. If Judge Woods’ decision stands, an acquittal at a university hearing is utterly pointless, since it would allow university sponsored defamation and public harassment of innocent students.”
Ashe Schow is the Campus Culture reporter for Watchdog.org. Contact [email protected] and @AsheSchow