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Court Grants Columbia University Motion to Dismiss Title IX Lawsuit

As reported in the New York Daily News, Newsweek, New York Magazine and other media outlets, Judge Gregory Woods of the Southern District of New York issued an opinion granting Columbia University, President Lee Bollinger and Professor Jon Kessler's motion to dismiss the complaint filed by former Columbia University undergraduate Paul Nungesser.

Mr. Nungesser's lawsuit, filed in April 2015, arises from a series of events beginning with a rape accusation by fellow former undergraduate student Emma Sulkowicz. Following an investigation and hearing, the university found Mr. Nungesser not responsible for sexual assault. In response to this finding, Ms. Sulkowicz began a performance art project entitled "Mattress Performance (Carry that Weight)," in which she carried a mattress around campus throughout her senior year in protest of the university's handling of her case. The project received widespread media attention, and Ms. Sulkowicz became a well-known figure in the ongoing public discourse surrounding sexual assault on college campuses. In his lawsuit, Mr. Nungesser alleged that, by permitting Ms. Sulkowicz to carry out her art project and by awarding her academic credit for doing so, the university violated his rights under Title IX of the Education Amendments of 1972. Mr. Nungesser also asserted various state law claims, including breach of contract and intentional infliction of emotional distress.

The defendants' motion to dismiss argued that the conduct alleged in Mr. Nungesser's complaint did not state a Title IX violation, as Ms. Sulkowicz's art project and other public statements were directed at Mr. Nungesser's alleged conduct, rather than his status as a male, because the conduct alleged here (essentially Ms. Sulkowicz's art project) was far different than that alleged in other Title IX student-on-student harassment cases and did not deprive Mr. Nungesser of access to educational opportunities, and because the university was not "deliberately indifferent" to the alleged harassment. The defendants also argued that Mr. Nungesser had failed to state a claim for breach of contract or any of his other state law claims.

In his 26-page opinion, Judge Woods accepted the defendants' arguments and dismissed the complaint with leave to replead certain claims. With respect to the Title IX claim, Judge Woods found that the conduct in question did not constitute harassment based on Mr. Nungesser's gender, reasoning that to accept Mr. Nungesser's argument "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." The court also noted that it did "not suggest that Nungesser's senior year at Columbia was pleasant or easy," but held that Mr. Nungesser's allegations, including that his academic performance suffered and that he was prevented from attending recruiting events, were not sufficient to meet the "high bar" of deprivation of access to educational opportunities. Judge Woods also dismissed Mr. Nungesser's state law claims, but granted him leave to replead certain state law claims and his Title IX claim.

The Paul, Weiss team included litigation partners Roberta Kaplan and Michele Hirshman, counsel Darren Johnson and associates Caitlin Grusauskas, Jordana Haviv and Alex Hess.

March 11, 2016

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