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Nungesser v. Columbia University

United States District Court, S.D. New York

March 24, 2017

PAUL NUNGESSER, Plaintiff,
v.
COLUMBIA UNIVERSITY, TRUSTEES OF COLUMBIA UNIVERSITY, LEE C. BOLLINGER, JON KESSLER, THOMAS VU-DANIEL, and MARIANNE HIRSCH, Defendants.

          MEMORANDUM OPINION AND ORDER

          GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE

         In 2013, Paul Nungesser was accused of rape by fellow Columbia University (“Columbia”) student Emma Sulkowicz. Sulkowicz filed a complaint with Columbia's Office of Gender-Based Misconduct and, after an investigation and hearing, a panel convened by Columbia found Nungesser “not responsible.” Notwithstanding the outcome of Columbia's investigation, Sulkowicz maintained that Nungesser had raped her. Over the course of their final year at Columbia, she became well-known as an activist campaigning to raise awareness of sexual assault on college campuses, and her senior thesis project, known as the Mattress Project: Carry That Weight (the “Mattress Project”), received widespread media attention.

         In this lawsuit, Nungesser alleges that Columbia violated his rights under Title IX of the Education Amendments of 1972 (“Title IX”) by permitting Sulkowicz, among other things, to carry out the Mattress Project and receive academic credit for it; he also brings various related state-law claims against Columbia, Lee Bollinger (Columbia's President), Jon Kessler (Professor of Visual Arts), Thomas Vu-Daniel (Director of Printmaking and Artistic Director of the LeRoy Neiman Center for Print Studies at Columbia's School of the Arts), [1] and Marianne Hirsch (Director of Columbia's Institute for Research on Women, Gender, and Sexuality). On March 11, 2016, this Court granted Defendants' motion to dismiss the Amended and Supplemented Complaint, but gave Nungesser leave to replead certain of his claims. ECF No. 36. On April 25, 2016, Nungesser filed his Second Amended and Supplemented Complaint (“SAC”), ECF No. 43, which Defendants moved to dismiss on June 15 2016, ECF No. 53.[2]

         The Court's task here is not to weigh in on the social debate regarding sexual assault on college campuses, to comment on best practices, or to render generalized judgments about the fairness of conduct between the parties. Indeed, it is not even the Court's role here to determine the truth. Instead, the Court's role is limited to determining whether, viewed through the lens of the relevant pleading standards, Nungesser has stated a claim for relief within the meaning of the substantive law that he invokes based upon the facts that he pleads. See Doe v. Columbia Univ., 831 F.3d 46, 48 (2d Cir. 2016) (“[A] court at this stage of our proceeding is not engaged in an effort to determine the true facts. The issue is simply whether the facts the plaintiff alleges, if true, are plausibly sufficient to state a legal claim.”). Because Nungesser has not cured the deficiencies identified in the Court's March 11, 2016 opinion, the Court concludes that he has not adequately pleaded the claims that he has chosen to pursue here. Accordingly, Defendants' motion to dismiss is GRANTED.

         I. BACKGROUND[3]

         A. The Events at Issue

         Plaintiff Paul Nungesser, a German national, is a 2015 graduate of Columbia University. SAC ¶ 2. During his freshman year, Nungesser developed a close friendship with fellow student Emma Sulkowicz. SAC ¶ 13. Nungesser and Sulkowicz became “friends with benefits and had sex on three occasions, ” but Nungesser “did not want to pursue a romantic relationship with Sulkowicz.” Id. According to the SAC, Sulkowicz was “unable to accept his rejection” and “sought revenge.” SAC ¶¶ 14, 24.

         In April 2013, Sulkowicz filed a complaint with Columbia's Office of Gender-Based Misconduct alleging that Nungesser had sexually assaulted her. SAC ¶ 15. Nungesser maintains that Sulkowicz's accusation was false. Id. He alleges that Sulkowicz's goal, “which she stated repeatedly during the investigation, was to have [him] expelled from Columbia, knowing that it would also force [him] to leave New York and the United States.” Id. In furtherance of that goal, Sulkowicz “started spreading rumors in order to motivate others to join her campaign against” him. SAC ¶ 16. Shortly after filing her complaint with the Office of Gender-Based Misconduct, Sulkowicz “encouraged the President of ADP to notify its alumni board and several members that an alleged rapist was living at ADP.” SAC ¶ 16 n.6.[4] She also “instigated others” to file false accusations against him. SAC ¶ 15. Three other individuals (two women and one man) did so. SAC ¶ 15 n.5.

         In response to Sulkowicz's complaint, the Office of Gender-Based Misconduct conducted a seven-month investigation, including “countless interviews, hearings, written statements, meetings and several dozens of e-mails as part of the fact finding process.” SAC ¶ 11. On November 1, 2013, a Columbia Hearing Panel found Nungesser “not responsible” for the allegation of sexual assault and dismissed the charge against him. SAC ¶¶ 11-12. Sulkowicz unsuccessfully appealed the Panel's finding. SAC ¶ 17. Nungesser was also “fully exonerated” by Columbia from the accusations made by the other three students. SAC ¶ 15 n.5.

         As alleged in the SAC, Sulkowicz “claimed that her allegations were swept under the rug.” SAC ¶ 19. The Hearing Panel's conclusion that Nungesser was “not responsible” and the denial of Sulkowicz's appeal “only strengthened Sulkowicz's resolve to have [Nungesser] removed from campus, ” and she “sought other means” to do so. SAC ¶¶ 17, 24. Nungesser similarly alleges that “Sulkowicz had failed to get [him] expelled from Columbia with her false allegations, ” and that “[b]ecause [he] successfully participated in the investigation against him and proved his innocence as well as the baselessness of her allegations, Sulkowicz became furious.” SAC ¶ 41. Nungesser describes the events that followed as “an unprecedented harassment campaign.” SAC ¶ 18.

         Soon after Sulkowicz's appeal was denied, she contacted a reporter from The New York Post and identified Nungesser by providing his name, dorm address, and e-mail. SAC ¶ 25. On December 4, 2013, a reporter and photographer from The Post “ambushed” him at the entrance to his dorm and confronted him with Sulkowicz's accusations. Id. The same day, Nungesser's parents sent an email to Columbia President Bollinger, Provost Coatsworth, and Title IX Coordinator Melinda Rooker, reading:

Dear President Bollinger, dear Provost Coatsworth, dear Melissa Rooker, with utter bewilderment we have just learned that our son was ambushed outside his residence by two reporters from the New York Post who were informed about the accusations against our son. (…) This retaliatory action represents a blatant violation of the Confidentiality Agreement according to Columbia policy. (…) We feel that Columbia shares a significant responsibility for the escalation which now takes place: There was clear evidence from early on during the investigation that the complainant was defaming our son. Her repeated violations of the Confidentiality Agreement remained without consequences. Given the fact that our son - though innocent - has endured almost seven months of severe so called “interim measures, ” it is now high time that sanctions against those responsible for this public defamation be imposed. (…). Let us also know what actions are taken by Columbia to restore the good name of our son, especially, but not only, if an article should appear in the New York Post.

         SAC ¶ 25 n.19. Nungesser alleges that Columbia “failed to initiate an investigation” or to take any action in response to this email. SAC ¶ 26.

         Shortly thereafter, an article appeared in The Post entitled “Columbia drops ball on jock ‘rapist' probe: students.” SAC ¶ 25 n.17. The article “suggest[ed] that all three students that are part of the campaign initiated by Sulkowicz [had] spoken with” the reporter, but it did not contain Nungesser's name. Id. Sulkowicz also provided information to a student reporter, who subsequently published a two-part article on Columbia's student news blog, BWOG. SAC ¶ 28. While the article used pseudonyms, it “contained a plethora of details, making [Nungesser] easily identifiable to a large part of the Columbia community.” Id. Nungesser was “urged” by Columbia administrators not to comment when the BWOG reporter requested a comment from him before publishing the article. SAC ¶ 29.

         In early April 2014, Sulkowicz appeared publicly at a press conference with Senator Kristen Gillibrand on the Columbia campus. SAC ¶ 30. According to the SAC, “Sulkowicz presented herself as a survivor of sexual violence, thus making [Nungesser] clearly identifiable to her friends as the alleged perpetrator.” Id. In May 2014, Sulkowicz published an op-ed in Time Magazine entitled “My Rapist is Still on Campus.” SAC ¶ 33. The op-ed did not identify Nungesser by name. See Id. n.29.

         In May 2014, while Nungesser was spending a semester studying abroad in Prague, his name was made public in connection with Sulkowicz's allegations for the first time. On May 14, 2014, Sulkowicz filed a police report “in order to have [Nungesser's] full name printed in the press.” SAC ¶ 34. Nungesser alleges that she “leaked the report immediately to George Joseph, Title IX activist at Columbia, ” who contacted Nungesser via email the following day about it. SAC ¶ 34 & n.32. On May 16, 2014, Columbia's student newspaper, the Columbia Spectator, and its student news blog, BWOG, published articles identifying Nungesser by his full name. SAC ¶ 34. Also in May 2014, a “rapist list” that identified Nungesser as a “serial rapist” appeared on campus in flyers and on graffiti. SAC ¶ 32. According to the SAC, Columbia administration “failed to investigate and sanction those responsible” and did not inform Nungesser about the distribution of the list. Id. Columbia issued the following statement to CNN in connection with a story about the “rapist list:”

The University is mindful of the multiple federal laws that govern these matters and provide important protections to survivors of sexual violence and to students engaged in our investigative process. These laws and our constitutional values do not permit us to silence debate on the difficult issues being discussed.

         SAC ¶ 32 n.27. Nungesser alleges that comments were posted on event listings on the BWOG and Columbia Spectator websites threatening violence, murder, and revenge rape for the people on the list, but the comments were subsequently removed from the sites. SAC ¶ 32 n.28.

         As Nungesser's return to the Columbia campus for his senior year approached, he and his parents “repeatedly reached out to Columbia administrators Monique Rinere and Jeri Henry as well as Defendant Bollinger, asking for Columbia's measure to ensure his safety and unhindered access to educational opportunities.” SAC ¶ 36. Nungesser alleges that, “[r]ather than searching for possible solutions involving protecting [him] on campus, they only came up with a single suggestion: to take a yearlong academic leave and return the year following Sulkowicz's graduation.” Id.

         Nungesser did not take academic leave. He returned to New York early, on August 11, 2014, to attend a voluntary interview with the New York County District Attorney's Office. SAC ¶ 38. Immediately after the interview, Nungesser's criminal lawyer was informed by one of the Assistant District Attorneys who had conducted the interview that no criminal charges would be brought.[5] Id.

         Even though Nungesser had been found “not responsible” for violation of Columbia's policies, and he had learned that he would not be subject to criminal charges, “Sulkowicz's efforts to vilify [him] had already considerably damaged [his] reputation on campus and beyond.” SAC ¶ 39. He alleges that he lost a cinematography job for a TV pilot in Berlin because the producers were afraid to lose financing if his name was linked to the project. Id. He also alleges that he had been asked to work on a feature film in New York, but that the director suddenly stopped all communication with him after his name was published in the media. Id.

         Beginning in August 2014 and extending throughout their senior year, Sulkowicz undertook the Mattress Project, a performance art piece that involved carrying her mattress around Columbia's campus with her at all times. SAC ¶ 40. The Mattress Project received widespread media attention both nationally and internationally, and much of the news coverage either linked to the Columbia Spectator article that contained Nungesser's name or mentioned his name directly.[6] SAC ¶ 52. Nungesser refers to this widespread coverage as a “defamatory media storm” and alleges that it “would never have occurred had Columbia early on stated publicly that the allegations were properly investigated and found not credible by the university hearing panel.” SAC ¶ 53. He describes the atmosphere on campus during this time as “openly hostile” and “dominated by . . . activists, ” alleging that “[s]ocial networks, including comments on campus media, were filled with threats against [him], ” and that “[p]rofessors and teachers who in private conversations expressed their support for [Nungesser] refrained from doing so publicly out of fear of endangering their future career at Columbia.” SAC ¶ 63.

         Sulkowicz publicly stated that the goal of the project was to “[g]et my rapist off campus” and stated: “I hope that when my attacker sees me doing this piece he will want to leave on his own.” SAC ¶ 43. She also vowed: “I will carry the mattress with me to all of my classes, every campus building, for as long as my rapist stays on the same campus with me.” Id.

         Near the beginning of the Mattress Project, Columbia issued the following comment to the New York Daily News:

The University respects the choice of any member of our community to peacefully express personal or political views on this and other issues. At the same time, the University is committed to protecting the privacy of students participating in gender-based misconduct proceedings. These matters are extremely sensitive, and we do not want to deter survivors from reporting them. The University therefore does not comment on these matters.

         SAC ¶ 40 n.39.

         Nungesser alleges that Defendant Kessler helped Sulkowicz design the Mattress Project; he also approved it as Sulkowicz's senior thesis project, for which she received course credit. SAC ¶ 47. Kessler also made public statements about the project. Specifically, he said that he had discussed endurance art with Sulkowicz and that he was struck by the fact that she was “making an enormous statement for change.” Id. n.48. He also stated: “Carrying around your university bed―which was also the site of your rape―is an amazingly significant and poignant and powerful symbol.” SAC ¶ 47 & n.49. In making the latter comment, Nungesser alleges, Kessler “publicly refer[red] to Sulkowicz's accusation as fact” and “publicly endorsed [Sulkowicz's] harassment and defamation of [Nungesser].” SAC ¶ 47.

         According to the SAC, “Defendant Kessler was not the only Columbia University employee that actively supported Sulkowicz's harassment campaign and represented her false accusation that [Nungesser] has committed rape as fact, directly defaming [him].” SAC ¶ 48. On September 10, 2014, Columbia's Institute for Research on Women, Gender, and Sexuality (“IRWGS”) announced on its website that the Institute would be closed for the day in support of “Carrying the Weight.” Id. The announcement also read: “Help Emma Carry the Weight . . . This is an open call to action for participation in our first collective carry.” Id. Nungesser alleges that, by closing the Institute and making this “call to action, ” IRWGS “publicized its support for Sulkowicz's harassment.” Id. Nungesser also alleges that an article published by IRWGS on a Columbia-owned website a few days later “presented it as a fact that [he] had raped Sulkowicz, ” because the article referred to Sulkowicz as a “survivor of sexual assault” and stated that Sulkowicz “has promised to carry a mattress to each of her classes so long as she attends school with same student who sexually assaulted her.” SAC ¶ 50 & n.51.

         In a September 21, 2014 cover story in New York Magazine, Bollinger stated: “This is a person who is one of my students, and I care about all of my students. And when one of them feels that she has been a victim of mistreatment, I am affected by that. This is all very painful.” SAC ¶ 51. Although Bollinger was referring to Sulkowicz in his statement, Nungesser alleges that “victim of mistreatment” and “painful” “more accurately describe [his] experience caused by the media fallout from Sulkowicz's harassment against [him] and Columbia's failure to protect him.” SAC ¶ 52.

         On October 2, 2014, Sulkowicz's parents published an op-ed in the Columbia Spectator styled as an open letter to Bollinger and Columbia's board of trustees. SAC ¶ 62 & n.69. The oped, which named Nungesser, argued that the investigation, hearing, and appeals process that Columbia had undertaken in response to Sulkowicz's complaint had been “painfully mishandled” and that Columbia had “violated standards of impartiality, fairness, and serious attention to the facts of the case.” See Id. n.69. It also listed six specific ways in which Sulkowicz's parents believed the hearing process had been “stacked against” Sulkowicz. Id. In addition, her parents noted in the oped that they had written to Bollinger in November 2013 about “the facts of the case, the existence of procedural errors, and the failure to abide by University policy in the scheduling and administration of the hearing, ” but that they “received no reply from [him].” Id.

         On October 29, 2014, a “National Day of Action” was held on the Columbia campus. SAC ¶ 54. Nungesser alleges that, on that day, activists brought their mattresses to a class that he attended, and that “[t]hroughout the class they stared at him and took his picture without his consent.” SAC ¶ 71 n.77. The day culminated with a group of activists, including Sulkowicz, delivering a mattress to Bollinger on which they had written a set of demands. SAC ¶ 56. Their demands were also read in public, published in writing, and posted at Bollinger's door. Id. The last demand on the list stated:

The investigation and adjudication process of the sexual assault report made by Emma Sulkowicz against Jean-Paul Nungesser was grossly mishandled. An alleged serial perpetrator remains on our campus and presents an ongoing threat to the community. Given these facts, we demand you re-open this case and evaluate it under the newly revised policy.

Id.[7] Columbia did not, however, re-open the investigation into Sulkowicz's complaint.

         Also on the date of the National Day of Action, Columbia published the following statement:

Student activism plays an important role in encouraging these efforts, and the University appreciates this attention to a significant issue affecting the lives of college and university students around the nation. We understand that reports about these cases in the media can be deeply distressing and our hearts go out to any students who feel they have been mistreated. Importantly, the University will not address reports about individual cases or experiences. This is so not only because of federal student privacy law but also―and most fundamentally―because of our commitment to help students feel as comfortable as possible accessing the many resources to support them on campus without concern that the University would ever comment publicly on them or their experiences. As a University we have made substantial new investments to further strengthen our personnel, physical resources, and policies dedicated to preventing and responding to gender-based misconduct.

         SAC ¶ 58 n.66. According to Nungesser, Columbia “decided to sponsor financially the defamation campaign against him” when it paid for some of the cost of cleanup after the Day of Action and made the above statement. SAC ¶ 58 & n.65. He alleges that Columbia's “sponsorship of the defamation campaign against [him] was also evidenced by” the following passage from an article written by Bollinger and Special Advisor on Sexual Assault Suzanne Goldberg and published in The New Republic on the same day as the Day of Action:

No person who comes to a university or college to learn and live should have to endure gender-based misconduct today, particularly the young women who most frequently sustain these violations and already are saddled with gender-based burdens in their lives and interactions with others that remain deeply embedded in society even as we make great progress on this front.

SAC ¶ 59 & n.67. According to the SAC, Bollinger and Goldberg “ignored that [Nungesser], on the receiving end of an extremely public gender-based harassment campaign and egregious intimate partner violence, was deserving of protection.” SAC ¶ 60.

         The New Republic article also explained Columbia's policy against commenting on individual students or their cases:

In addition to federal laws protecting student privacy, we understand that students in need are less likely to get help on campus if they worry that the university might one day comment on them. This is true even if some students speak publicly about their own experiences.
An absolute rule of never commenting can help lay the groundwork for students to feel comfortable confiding in the medical or rape crisis counseling professionals who can help them, or to engage the university disciplinary process. In an environment of substantial underreporting of sexual assault, whatever value could be gained from adding the University's perspective about any one student's case is far outweighed by the importance of protecting all students' access to resources.

See SAC ¶ 59 n.67.

         Starting in February 2015, a few students began to speak out in Nungesser's favor. SAC ¶ 69. Nungesser himself also decided to speak out publicly “against the expressed advice of Columbia administrators, ” including in an article published by the Daily Beast entitled “Columbia Student: I didn't rape her.” Id. & n.76. According to the SAC, “Columbia administrators refused to protect [him] from harassment, ” even after he spoke out publicly. SAC ¶ 70.

         On April 11, 2015, Nungesser alleges, activists projected “Rape happens here” and “Columbia protects rapists” in “huge letters over Low Library and held banners reading ‘Carry That Weight' and ‘Columbia Protects Rapists' over Low Library steps and ledges by Kent Hall.” SAC ¶ 72. Nungesser asserts that Columbia “did not stop the activists, even though it was clear that the projected slogans and banners referred to [him] specifically and were another attempt to shame him away.” Id.

         During the week before Sulkowicz's and Nungesser's graduation, three prints created by Sulkowicz were displayed in Columbia's Leroy Nieman Gallery as part of the University Visual Arts Program/Undergraduate Thesis Show. SAC ¶¶ 74-75. The prints were superimposed over New York Times articles describing Sulkowicz's claims against Nungesser, one of which identified Nungesser by his full name. SAC ¶ 74. One of them “depicted [Nungesser] choking and committing rape against her.”[8] SAC ¶ 75. A second print allegedly showed Nungesser alone and naked with an erect penis. Id. A third print depicted the mattress carried by Sulkowicz as her senior thesis. Id.

         The show was open to the public. SAC ¶ 76. Approximately forty people attended a reception that was held for the show, including Defendant Thomas Vu-Daniel, who was the artistic director of the LeRoy Nieman Center for Print Studies and a Columbia employee. SAC ¶ 75. Columbia faculty approved the display of the prints, facilitated their installation, and supervised the reception. SAC ¶ 76. Nungesser was not notified by Columbia that the prints would be displayed. SAC ¶ 77.

         Sulkowicz's Mattress Project culminated on May 19, 2015, when she carried the mattress at Columbia's graduation ceremony. SAC ¶ 79. She did so despite the fact that Columbia administrators had emailed graduating students and asked that they not bring “large objects” to the ceremony, and administrators had spoken to her both before and during the ceremony, asking that she not carry the mattress. SAC ¶¶ 81, 84. The appearance of the mattress at the graduation ceremony generated a renewed round of media attention, with hundreds of articles published nationally and internationally. SAC ¶ 88. Many of those articles included Nungesser's full name. Id. In addition, a Columbia student took photographs of Nungesser during the ceremony and posted them on his Twitter feed. SAC ¶ 89. One of the photographs was published in several news outlets. “On some occasions, the word ‘Rapist' was pasted over the photo and then published further.” Id. Nungesser alleges that, by allowing the student to take and publish his picture, “Defendants assisted in furthering a defamatory and systematic attack on [him].” Id.

         B. The Effect of the Events on Nungesser's Experience at Columbia

         As a result of the events described above, Nungesser's social and academic experience at Columbia suffered. He began to fear for his safety as a result of several comments posted on Sulkowicz's Facebook page in late 2014, as well as on other social media sources. SAC ¶¶ 137-146. During a series of at least twenty “collective carry” events held between September 2014 and April 2015, during which “Sulkowicz carried her mattress across campus and was supported by her followers, ” Nungesser “completely avoided being on campus unless he absolutely had to.” SAC ¶ 147. He alleges that he was “fearful to access the campus resources of the dining hall, athletic center, libraries as well as the center for career education, and he only did so when he absolutely had to.” SAC ¶ 148.

         On March 26, 2015, Nungesser requested a public safety escort in order to attend a sexual respect workshop that was mandatory for all Columbia students, but his request was denied. SAC ¶¶ 71, 149. Administrators provided him with the option of writing an essay in lieu of attending the workshop, but he declined. SAC ¶ 149. Because his participation in the program was a requirement for graduation, he ultimately decided to attend the workshop. Id. After the workshop, he discovered an e-mail, sent to him by Columbia administrators “just minutes before the start of the workshop, ” recommending that he not attend. SAC ¶ 71. Nungesser requested a public safety escort again during the second National Day of Action held on April 13, 2015 because he “felt unsafe to walk around campus” and “was anticipating extended media presence, ” but his requested was denied. SAC ¶ 73.

         The SAC also describes a small number of uncomfortable encounters that Nungesser experienced during his classes. On the National Day of Action, several “activists” brought mattresses and pillows to one of his classes and stared at him “throughout the class.” SAC ¶ 151. “[S]upporters of Sulkowicz” also took his picture. Id. On another occasion, a student from the same class blogged about Sulkowicz's allegations and about being in class with Nungesser. SAC ¶ 152. Nungesser asserts that this made him fearful to participate in class discussion. Id. He ultimately elected to take the class on a Pass/Fail basis to avoid having his “poor performance” affect his GPA. Id.

         During the summer of 2014, Nungesser took a course that involved travel through several foreign countries. During the first stop on the trip, two Barnard students expressed to the professor that Nungesser “should leave the course, since they felt that the prestige of the course had been lowered due to his ‘bad public reputation.'” SAC ¶ 154. Nungesser also alleges that he was “interrogated in detail” by two other students regarding Sulkowicz's allegations. SAC ¶ 155. He expressed concern to the professor of the course, who “dismissed his concerns, telling him that the people who were most upset with his presence were physically inferior to [him] and thus posed no threat to him.” SAC ¶ 156. When he complained again, the professor “recommended” that he drop out of the course, stating that “it would make everything easier for everyone else in the class.” SAC ¶ 157. After Nungesser's parents complained to Bollinger about the professor's response to his complaints, Columbia's Office of the President sent them an email stating that “the administrators on Paul's study abroad program acted appropriately.” SAC ¶ 158.

         Notwithstanding the above events, Nungesser chose to complete the course. SAC ¶ 159. Due to the emotional distress that those events caused him, however, he “had problems concentrating on discussions during the trip and ...


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