By Sarah Thuswaldner (eQuality Project Student)
Laws like Title IX in the United States are meant to protect students from sexual assault and discrimination – but that didn’t stop an alleged sexual assailant from trying to claim that same protection in a lawsuit against his university.
Columbia University art student Emma Sulkowicz drew international headlines with her senior thesis: “Mattress Performance (Carry that Weight).” She carried a twin-size mattress everywhere she went on the Manhattan campus, saying it was a symbol of her rape and the university’s failure to respond to it.
The alleged assault took place in 2012 – contact that the alleged assailant, German international student Paul Nungesser, claims was consensual and Sulkowitz insists was not. In 2013, a university inquiry found Nungesser “not responsible,” and in 2014, Sulkowitz began carrying the mattress and speaking openly about her experience.
Nungesser complained that Sulkowitz had branded him as a “serial rapist” and sued the school, but on March 12, a judge confirmed that “rapist” was not a gendered term, and Nungesser had not experienced sex-based discrimination within the meaning of Title IX, nor had he been deprived of education as a result of the art project.
While Nungesser’s lawsuit has been dismissed, the court gave him the option to refile an amended claim. Further, the fact that a Title IX suit was even open to the possibility of use by an alleged sexual assailant speaks to a systemic problem in the application of a law meant to protect students from sexual misconduct and discrimination.
In fact, the American Association of University Professors (AAUP) released a report on March 23 that claims Title IX has prompted universities to take steps to reduce federal investigations – but not to deal with sexual violence and harassment. It suggests that universities dodge liability, without actually making campuses safer.
Schools have paid more attention to sexual violence and harassment on campus in recent years, but that hasn’t necessarily translated into safer environments. There are currently over 200 Title IX federal investigations taking place on university and college campuses, and AAUP alleges that schools’ efforts to avoid federal attention and internal lawsuits have actually made conditions worse for students seeking protection from harassment and violence. The report states that schools have focused on policy reform rather than education and culture change, which would be more likely to prevent harassment and assaults in the first place.
The AAUP also states that a “hostile environment” as set out in Title IX is being treated too broadly, and speech that students find hurtful or offensive can still be protected by academic freedom.
Sulkowicz herself expressed her shock that her art project, which she characterized as part of her healing process, was interpreted by Nungesser as “bullying”.
The AAUP claims (check out the full report here) that too broad an interpretation of Title IX claims can open the door for the law to be used to attack those it was initially designed to protect. For example, it has been used as an excuse to sanction professors who discuss sex and sexuality in their classes or their writing.
Rather than the interpretation of laws like Title IX, perhaps the broader issue is empowered groups’ attempts to use and misuse legal provisions intended to protect more vulnerable groups in ways that are contrary to the foundational principle of equality underlying the laws in question.