Warshaw Burstein Prevails Over Columbia University in High-Profile Title IX Action01/11/2021
Warshaw Burstein, LLP, a full-service law firm in New York City, today announced that Kimberly C. Lau, partner and head of the firm’s Title IX/College Discipline practice with the assistance of counsel, James Figliozzi, won a Motion to Dismiss and recently achieved a successful settlement for her client in a high-profile Title IX case with Columbia University.
“Columbia University discriminated against my client, Ben Feibleman, on the basis of his gender, in violation of Title IX,” Ms. Lau said. “This settlement, which includes the reinstatement of Mr. Feibleman’s diploma, including all associated rights and privileges as an alumnus in good standing, Columbia’s agreement to issue a statement in response to inquiries about Mr. Feibleman’s educational record and a significant award of financial damages, affirms our position, but does not change the affect this proceeding had on his life and future career.”
While Columbia’s statement asserts that “the findings remain unchanged,” I think any reasonable person viewing the totality of circumstances will see through it. Pursuant to the settlement, Mr. Feibleman has been awarded his diploma and paid a significant monetary sum. It should be noted that Columbia has previously stated in a publicly filed letter in this lawsuit that "to award him his diploma  is tantamount to vacating the underlying disciplinary finding." Thus, there is only one logical takeaway here.
“Columbia University grievously mishandled this case. Mr. Feibleman did not violate Columbia’s Gender Based Misconduct policies, as they charged. Hon. Valerie E. Caproni sustained our allegations in the complaint and we prevailed at the motion to dismiss stage. Any reasonable interpretation of the parties’ settlement at this stage of the lawsuit signals an acknowledgement of Columbia’s mishandling of this matter,” Ms. Lau continued. “We hope that this outcome inspires a conversation on gender and consent and shines a light on the fact that many universities are handling Title IX cases in an erratic and unfair manner, with devasting results for both parties involved. All of which is particularly pertinent as President-elect Biden’s Department of Education soon will take the helm on these issues.”
"The system is both unfair to complainants, who can be misled, ill-advised, and abandoned by the institution, and to respondents who are often deceived into thinking they are being led towards the truth, rather than an outcome,” Mr. Feibleman said. “I can’t know if those reading this have children, but if you think that this won’t happen to your child because you ‘raised them better,’ you’re wrong. It can happen, and it will happen, if it is in the interest of the institution entrusted with their care, and it can and does cost the lives of young people to suicide, when schools fail in their obligations to provide a safe and fair Title IX process."
Feibelman v. Columbia
Two Columbia School of Journalism students met at a school-sponsored reception on October 4, 2016. Finding each other intriguing, both decided to leave the event and continue the night with friends. While the complainant had wine at the reception, she had stopped drinking for the evening by the time they got to their next destination. More than 700 photographs, videos, and one audio recording captured the parties’ mutual flirtation that evening. But more importantly, the images captured the complainant’s capacity marked by her incredible acrobatics off a 30-foot water tower on the roof. No sexual intercourse occurred that evening, although other sexual intimacy did occur and was consensual.
As the audio recording showed, the complainant begged Mr. Feibleman to have sex with her no less than 29 times, and each time he said no. The complainant refused to allow Mr. Feibleman to leave her room and sexually assaulted him on one of his attempts to leave by grabbing the lower half of his body, forcibly undressing him and attempting to perform oral sex. The next day, Mr. Feibleman’s journalism peer accused of him of “raping” her by reason of her “incapacitation.” When hearing Mr. Feibleman’s allegations of the complainant’s offending conduct that evening, Columbia charged her with mere “sexual harassment.”
Despite the overwhelming mountain of evidence exonerating Mr. Feibleman, Columbia embarked on a results-oriented investigation against him. Spanning 257 days, the investigation concluded Mr. Feibleman was “responsible” of sexually assaulting the complainant, and the complainant “not responsible” of “sexually harassing” him. Columbia expelled Mr. Feibleman and refused to issue his diploma bearing Columbia’s name.
The evidence clearly supported Mr. Feibleman’s innocence, so, on May 13, 2019, he filed a lawsuit in the Southern District of New York to clear his name and alleged seven claims for violations of Title IX (erroneous outcome and selective enforcement), breach of contract, promissory estoppel and violations of the New York City Human Rights Law.
On July 15, 2019, Columbia moved to dismiss five out of seven claims stated in the Complaint. On February 24, 2020, Judge Valerie Caproni sustained the allegations in the Complaint, allowing Mr. Feibleman’s claims for violations of Title IX (erroneous outcome), breach of contract and promissory estoppel to move forward into discovery. . Columbia did not move to dismiss Mr. Feibleman’s Title IX (selective enforcement) and New York City Human Rights Law claims, so those claims continued into discovery as well. Judge Caproni poignantly wrote, “if one concluded that what happened on the roof was consistent with a daredevil personality and that [the Complainant] was not incapacitated at that time, then it would be highly unlikely that she would have been incapacitated almost three hours later in her room, given no further alcohol consumption.”
Following Mr. Feibleman’s success at the motion to dismiss stage, the parties continued to the discovery phase. The parties then engaged in settlement discussions following Mr. Feibleman’s repeated requests for dates to schedule the depositions of nine Columbia University administrators. Before any depositions took place, the parties reached a settlement agreement. The settlement agreement included the reinstatement of Mr. Feibleman’s diploma, including all associated rights and privileges as an alumnus in good standing, Columbia’s agreement to issue a statement in response to inquiries about Mr. Feibleman’s educational record and a significant award of financial damages. This settlement provides Mr. Feibleman with the redress he deserves and the closure he needs to move on with his life.