Columbia University is one of the many schools to be accused of failing to protect the rights of sexual assault victims. This week, it became one of the first to be singled out for failing to protect the rights of the accused.
On Wednesday, Paul Nungesser, the male student who was the target of the now-famous “Carry That Weight” campaign filed a federal complaint against Columbia University, its board of trustees, and President Lee C. Bollinger.
He is suing the university for gender discrimination under Title IX—which is exactly what the federal government is investigating the university for violating in its response to sexual assault victims.
The federal complaint alleges that Columbia “intentionally discriminated against Paul on the basis of his male sex by condoning a hostile educational environment.”
The prestigious New York City university became the poster-child for campus sexual assault when student Emma Sulkowicz’s “Carry That Weight” garnered national attention.
At the start of the 2014 school year, Sulkowicz began hauling the 50-pound mattress she said she was raped on as a sophomore everywhere on campus as part of a senior thesis project.
She stated she would continue to do so until the student she said raped her left the university, spurring similar acts of performance art protests at campuses throughout the country.
Visual Arts Professor Jon Kessler, who instructed Sulkowicz on “Carry That Weight,” is also a defendant.
Since “Carry That Weight” began, Nungesser’s suit claims he has faced threats and ostracism without support from the university, even though he was fully cleared of the sexual assault allegation by the school.
“President Bollinger has basked in the spotlight that this display has brought,” said the suit, citing his public statements of empathy for Sulkowicz.
In contrast, Bolinger “showed no public regard for a student in Paul, who was being victimized by Emma’s campaign of false charges of criminal conduct,” the suit states. “Numerous report and complaints by Paul and his parents have been made to Columbia officials about the gender-based harassment and defamation of Paul, but Columbia has acted with at best deliberate indifference to and at time apparent approval.”
“President Bollinger thus displayed a contemptible moral cowardice in bowing down to the witch hunt against an innocent student instead of standing up for the truth and taking appropriate steps to protect Paul from gender based harassment.”
According to the suit, this harassment included physically violent threats posted publicly against Nungesser on Facebook, including one on Facebook stating Nungesser “needs to practice silence or suicide before he gets dealt with accordingly,” which was “liked” by Sulkowicz.
“University resources such as dorms, libraries, dining halls, and the gym are not reasonably available for Paul’s access,” the suit states. “Even attending classes has become problematic, as he has endured harassment and has had his photo taken against his will while in class,” the complaint states.
It also alleges that the campaign has hindered the ability of Nungesser, a German citizen, to find employment and, thus, remain in the U.S.
“The University does not comment on ongoing litigation,” said Victoria Benitez, Columbia University’s Director of Communication in a statement emailed to The Daily Beast.
Though Sulkowicz never actively named Nungesser, who started attending Columbia in 2011, it did not take long for the press to determine the identity of the student Sulkowicz referred to as a “serial rapist.”
The concerns brought up in Nungesser’s suit are nothing to diminish. While sexual assault advocates often retort that the pain of expulsion or unemployment is nothing compared to the pain of rape, that doesn’t seem to answer the question of whether someone accused of a crime received due process and fair treatment.
Nungesser is not the first to bring up these concerns. His lawyer, Andrew T. Miltenberg, has represented multiple male students.
According to an October 2014 profile on him in the New York Observer, he and his fellow attorney, Kimberly Lau, get “about 10 calls a week from parents whose sons have been accused, suspended, or expelled.”
Miltenberg did not respond for comment, although I spoke to Miltenberg and Lau in August of 2014 about a client expelled from the University of Massachusetts at Amherst after he was convicted by the school of sexual assault.
He sued the school for Title IV violations, claiming he was “deprived… on the basis of his sex, of his rights to due process and equal protection.”
These cases beg the question: will students accused of sexual assault be headed to court en masse?
Legal experts interviewed for this article say that may, in fact, be the next phase in national campus sexual assault reform—and they say the federal government is to blame.
“I think the next wave will be students suing the universities. I think there will be an escalating wave,” said Harvard Law Professor Elizabeth Bartholet.
She is one of the 28 faculty members of Harvard Law School who signed a letter published last fall in the Boston Globe denouncing the university’s campus sexual assault policies for, among other things, infringing on the rights of the accused to a fair trial.
Several faculty members at the University of Pennsylvania Law School have also signed a similar public letter in response to the school’s sexual assault policies.
The fears that campus reforms are violating due process for students accused are increasingly voiced and documented.
Under some policies—like Penn’s, according to the law faculty’s open letter (PDF)—accused students must have their questions pre-approved before tribunals and their lawyers are barred from cross-examining witnesses who testify against them.
The standard of proof needed to find a student guilty of sexual assault is also lower than what is necessitated in a criminal trial.
“When you get things like the federal government pressuring universities to create a sexual assault process that lacks adequate due process for those accused, you’re going to get students trying to protect themselves,” said Bartholet.
Under current campus policy, she believes “there’s the risk we will find a lot of people responsible for sexual assault when they shouldn’t be. That will lead to some of them fighting back with the help of lawyers against the university and the government. I think that’s a good and healthy thing because what the federal government has done is outrageous,” she said.
Harvey Silverglate, an attorney specializing in defense and civil liberties, agreed that federal pressures to create one-sided campus sexual assault policies will potentially spur lawsuits.
“I think that’s what happening is that the pendulum has swung so far over to the side of unfair campus proceedings that lawyers for some of the accused students are trying everything they can to get a fair hearing,” he said.
Silverglate also predicts that the recent spate of Title IX cases filed against universities is just the beginning. “There’s an explosion of cases going to court, and I expect it will grow,” he said.
He also sees the legislation as a response to campuses unfit fairly and adequately respond to sexual assault. “Their [universities’] system is highly bureaucratized and not very rational and they’re run by people who don’t know what they’re doing,” said Silverglate.
As a result, he said, lawyers for accused students are scrambling to find paths for recourse. “Lawyers for some of the accused students are trying everything they can to get their clients a fair hearing,” he said. “ We’re in an atmosphere of panic.”
Silverglate believes Nungesser has a strong shot in court, but he thinks he is the exception to the rule. “He’s got a particularly strong case [because] he was exonerated in a campus system that is usually skewed against the male. He’s got at least a very strong argument that he’s factually innocent,” said Silverglate, but added “It’s not easy to win these cases in federal court.”
Bartholet would not comment specifically on the Columbia case, nor predict its success. However, she said she hoped these suits filed by the accused, as well as the complaints voiced by university faculty, will reach Washington D.C.
“I am hopeful the federal government will respond to the pushback that we’ve seen already. There’s a high-level, very educated pushback saying that what the federal government is doing is fundamentally wrong,” she said.
“This isn’t from just right-wing, conservatives. It’s coming from feminists who believe in the empowerment of women, who think what the federal government is doing is the opposite of policy that would empower women.”