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Courtesy of Teo Armus

Columbia has filed a motion to dismiss a lawsuit from Paul Nungesser, CC ’15.

Columbia has filed a motion to dismiss a lawsuit from Paul Nungesser, CC '15, saying that the University did nothing wrong in allowing Emma Sulkowicz, CC '15, to carry her mattress around campus as part of her senior thesis project.

Nungesser is suing the University and visual arts professor Jon Kessler for allegedly supporting Sulkowicz in committing an act of gender-based harassment against him through her thesis, "Carry That Weight," and allowing her to break confidentiality agreements about the case.

Filed in court on August 28, the motion disputes Nungesser's claim that Columbia violated Title IX, arguing that his allegations do not constitute a violation of the federal law, which prohibits discrimination in higher education on the basis of gender.

"Nowhere does he [Nungesser] allege that her [Sulkowicz's] protests constituted 'sexual harassment,' that such harassment was so 'severe' and pervasive' that it effectively excluded him from access to education opportunities, and that Columbia demonstrated 'deliberate indifference,'" the motion says.

From the first day of classes last September through her graduation, Sulkowicz carried a twin-size mattress for her senior visual arts thesis, saying she would do so until Nungesser was expelled, graduated, or otherwise left campus.

Columbia can only be liable of a Title IX violation if the harassment is gender-based and if the response to the harassment is "deliberately indifferent."

The motion argues that because Sulkowicz's actions concerned Nungesser's conduct and not his status as a male, his claims do not qualify as a violation. In addition, it adds that the University's response cannot be seen as indifferent because administrators twice asked Sulkowicz not to carry her mattress at Columbia College's Class Day.

Furthermore, the University's motion disputes Nungesser's claim that Columbia allowed Sulkowicz to break confidentiality agreements, saying that its past two gender-based misconduct policies do not restrict a complainant from "discussing the conduct that underlies" their complaint.

While Nungesser argues that Columbia should have prevented Sulkowicz from engaging in her mattress project, the University's lawyer, Roberta Kaplan, Law '91, argues that this claim insinuates that the University should curb free speech.

"Content-based restrictions on academic pursuits are antithetical to the free expression of ideas to which Columbia—and every other great university—is committed," the motion said. "Academic work is not rejected at the University because it deals with uncomfortable topics or takes unpopular positions."

In June, Kaplan filed a joint letter with Nungesser's lawyer, Philip A. Byler, in which the University expressed its interest in dismissing the motion, and Byler added additional allegations to Nungesser's case.

Both parties said in the joint letter that they would be open to a settlement agreement. If a settlement were reached, the damages alleged by Nungesser, according to the letter, "are not subject to a precise calculation."

Dismissal of Nungesser's case would entirely avoid the need for a settlement—and subsequently, for Columbia to pay Nungesser as part of a deal to keep the case out of court and out of the public eye.

Byler, Kaplan, Kessler, and Sulkowicz did not immediately respond to requests for comment.

Erin Mizraki contributed reporting.

teo.armus@columbiaspectator.com | @teoarmus

Paul Nungesser emma sulkowicz lawsuit Roberta Kaplan
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