169 F. Supp. 3d 353
S.D.N.Y.2016Background
- In 2013 Emma Sulkowicz accused Paul Nungesser of rape to Columbia’s Office of Gender-Based Misconduct; Columbia investigated and found Nungesser “not responsible.”
- Sulkowicz then engaged in public activism (notably the "Mattress Project") and published statements and art about her allegation; some campus publications and bathroom “rapist lists” identified Nungesser by name in 2014.
- Columbia faculty approved Sulkowicz’s Mattress Project as a senior thesis for credit; university leadership commented publicly and Columbia partially funded cleanup for a rally related to the activism.
- Nungesser alleges reputational, academic, and career harm (e.g., inability to attend on-campus recruiting, return to Germany after graduation), and claims Columbia failed to prevent or remedy gender-based harassment.
- Nungesser sued under Title IX and parallel New York Human Rights Law counts and asserted state-law claims (breach of contract, promissory estoppel, GBL §349, negligence, intentional infliction of emotional distress, covenant of good faith).
- The district court dismissed all claims (some with prejudice, some without), holding Nungesser failed to plausibly plead gender-based discrimination or deprivation of access to educational opportunities under Title IX.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Columbia’s alleged tolerance of Sulkowicz’s activism and crediting her thesis constituted discrimination "on the basis of sex" under Title IX | Nungesser: being publicly labeled a "rapist" arising from sexual allegations is inherently gender-based discrimination against him as a male | Columbia: Title IX protects status-based sex discrimination; accusations arising from sexual conduct are not per se sex-based discrimination | Court: Dismissed — allegations do not plausibly show discrimination because conduct was motivated by a particular event/personal animus, not male status |
| Whether Columbia was deliberately indifferent such that Nungesser was deprived of access to educational opportunities under Davis standard | Nungesser: activism and publicity caused concrete harms (career recruitment exclusion, safety fears, academic impact) | Columbia: facts are conclusory and insufficient to show severe, pervasive, objectively offensive harassment depriving access | Court: Dismissed — alleged harms insufficiently pleaded; no deprivation of educational opportunities |
| Whether Columbia breached its contractual and policy promises (gender-based misconduct, confidentiality, anti-retaliation) | Nungesser: Columbia breached specific policies by not disciplining Sulkowicz, failing to notify him, and changing privacy protections | Columbia: policies contain general statements and discretion; no specific contractual promise was pled to have been breached | Court: Breach of contract dismissed without prejudice — plaintiff failed to identify specific, enforceable promises |
| Viability of other state-law claims (promissory estoppel, GBL §349, negligence, IIED, covenant) | Nungesser: policies and university actions gave rise to these claims and caused injury | Columbia: claims are duplicative of contract or fail as a matter of law (no consumer-oriented conduct, no duty under NY law, no extreme/outrageous conduct) | Court: Promissory estoppel and negligence dismissed with prejudice; covenant of good faith dismissed with prejudice; GBL §349, IIED dismissed (some with leave to replead) |
Key Cases Cited
- Cannon v. University of Chicago, 441 U.S. 677 (recognizing an implied private right of action under Title IX)
- Davis v. Monroe County Board of Education, 526 U.S. 629 (Title IX deliberate-indifference standard for peer harassment requiring deprivation of educational opportunities)
- Gebser v. Lago Vista Independent School District, 524 U.S. 274 (limitations on school liability under Title IX for teacher-student harassment)
- Yusuf v. Vassar College, 35 F.3d 709 (2d Cir.) (applying Title VI/VII analogies to Title IX analysis)
- Jackson v. Birmingham Board of Education, 544 U.S. 167 (Title IX interpreted as protection against discrimination "on the basis of sex")
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: factual allegations must plausibly state a claim)
- Bell Atlantic v. Twombly, 550 U.S. 544 (plausibility pleading standard)
- Oncale v. Sundowner Offshore Services, 523 U.S. 75 (harassment is actionable under anti-discrimination laws only when it supports inference of discrimination on the basis of sex)