German Students Confront the New Rules for Sex on American Campuses under Title IX

[deutscher Text]

In July Columbia University settled a lawsuit with a German student, Paul Nungesser, who had come to the United States to attend college. While at Columbia, a fellow female student accused him of rape. He claimed they had engaged in consensual sex. What eventually resulted was a lawsuit under 20 U.S.C. §§ 1681–1688, also called Title IX because it is Title IX of the Education Amendments of 1972.

The ensuing litigation is a sign of the times in American law and education. In 2011, the Office of Civil Rights of the United States Department of Education gave new emphasis to Title IX by writing to American colleges and universities and urging action to end “sexual harassment of students, including sexual violence.” Complaints to the Office of Civil Rights also increased from as few as 9 in 2009 to over 250 in 2016. The office responded by increasing its investigations of colleges and universities.

D. Chodowiecki, Die auf Rosen schlummernde Unschuld

D. Chodowiecki, Die auf Rosen schlummernde Unschuld

Universities and colleges responded by hiring new legal officers, enacting new policies, and forming special tribunals that investigate and pass judgment on allegations of sexual misconduct among students.

Predictably, another result was an explosion of litigation. Nungesser’s lawsuit against Columbia is just one example. The Office of Civil Rights encouraged universities not only to permit accused students to appeal decisions against them but also to permit accusers to appeal decisions they find too lenient. Activists and social movements have arrayed themselves on all sides of the issue. Should a student remain unhappy with a decision made by a university tribunal, he or she can also sue the university in federal court. See Hayut v. State Univ. of New York, 352 F.3d 733, 749 (2d Cir.2003)

Nungesser’s case is odd because he sued Columbia after being found “non-responsible” —the equivalent of non-guilty in a criminal proceeding in a state or federal prosecution.

The finding of “non-responsible” resulted from Columbia’s own, formal internal investigation. A New York prosecutor who investigated Nungesser also declined to bring a criminal case against him. At that point, the stage seemed set for Nungesser to exit with his name cleared.

But this did not end of the matter.

His accuser began a public campaign against Nungesser. She carried the mattress around campus on which she claimed to have been raped. She received university credit for this as an art project (called “Carry That Weight”) and claimed she was raising awareness of sexual assault on campus. Nungesser, for his part, experienced this as harassment.

He eventually sued Columbia, alleging that by condoning and encouraging his accuser, the University had violated Title IX by discriminating against him on the basis of sex. He also sued on various theories for breach of contract. His complaint was twice dismissed in the Federal District Court for the Southern District of New York, which found that his complaint pleaded no facts, even if all were taken as true, that could entitle him to legal relief. Nungesser v. Columbia University, 169 F.Supp.3d 353 (S.D.N.Y. Mar. 11, 2016); 2017 WL 1135647 (S.D.N.Y. Mar. 24, 2017).

Although Nungesser lost in court, Columbia settled with him shortly after he appealed.