By: Cameron Miller
The Obama Administration’s revamp of Title IX enforcement—which began in 2011 with the now-infamous “Dear Colleague” Letter (DCL)—remains one of the more controversial shifts in discrimination policy in recent memory. The DCL and subsequent guidance issued by the Department of Education’s Office of Civil Rights (OCR) substantially re-interpreted Title IX’s application to campus disciplinary matters, essentially mandating that schools use the “preponderance of the evidence” standard when adjudicating sexual misconduct cases—or face loss of federal educational funding. Catherine E. Lhamon, the head of OCR at the time, emphasized that the threat of pulling funding was not an empty one, and that OCR would aggressively investigate any institution that failed to properly adjudicate misconduct issues. Lhamon also made clear that male-on-female misconduct was the primary focus of the new “guidance.” Pursuant to this policy overhaul, OCR would ultimately launch over 450 investigations against U.S. colleges and universities over their handling of sexual assault and harassment claims.
In response to the pressures exerted by the federal government, media, and their own students, many institutions revised their disciplinary policies to require allegations be proven only to the preponderance standard—a low burden of proof (commonly referred to as “50 percent plus a feather”). In response to these changes, and the disciplinary action stemming from them, dozens of accused students (overwhelmingly male) have filed lawsuits claiming their schools denied them due process and unlawfully discriminated against them in violation of Title IX (dozens of accused students have prevailed in these actions). Some of those cases involved college athletes, including prominent complaints from a Yale basketball player, UT-Chattanooga wrestler, and Colorado State University-Pueblo football player. Last week, Michigan State—which is already facing substantial Title IX issues—became the latest target of a due process suit filed by an athlete when former MSU football player Keith Mumphery sued the school in federal court.
Mumphery’s complaint, filed May 22, revolves around the claim that he never received any notice of the disciplinary proceedings against him after he was accused of sexual misconduct, as all the formal communications sent by the University were delivered to Mumphery’s university email account—which was full—and his personal account—which was unmonitored. Mumphery also alleges that the school mishandled the accuser’s appeal, which resulted in his expulsion from the University despite an initial review that found him not responsible. The complaint argues that the university official handling the case as it was on appeal acted as both the investigator and adjudicator, a dual role discouraged by Title IX guidance, and either ignored or misconstrued evidence in favor of the accuser and to Mumphery’s detriment. “Only an anti-male bias to find for the female complainant and against the male respondent can explain the purported findings,” the complaint reads. The underlying incident occurred in March 2015, but was not revealed until May 2017, when Mumphery was playing for the Houston Texans. He was released shortly thereafter and has not been employed in the NFL since.
On this basis, Mumphery advanced five causes of action:
Mumphery claims that Michigan State’s disciplinary procedures, which include no sworn testimony or cross-examination, no hearing where testimony is taken, and no access to certain evidence—including the investigator’s report—were such that even if he had been provided notice, he would not have been accorded due process. The complaint ties these procedural deficiencies to the actions of the Obama-era Department of Education, asserting that Michigan State was “pressured…into following the Title IX investigative and adjudicatory process mandated by the Dear Colleague Letter regardless of what otherwise would be due process considerations.” The school’s disciplinary process, influenced by the federal edicts, harmed his educational, professional, and personal interests, Mumphery argues.
The complaint also alleges that Michigan State’s bias against male students motivated the outcome and penalties in his case. For support, Mumphery outlines the alleged failures of the investigator/adjudicator, including a “failure to give any weight to the numerous inconsistencies in Roe’s statements throughout the investigative process” that resulted in an incorrect disciplinary finding. The complaint then postulates that the pattern of male respondents at Michigan State being “invariably found guilty” cannot be explained by anything other than “anti-male bias to find for the female complainant and against the male respondent.”
In a quasi-breach of contract claim, Mumphery asserts he relied on Michigan State’s promises, contained in documents such as the University’s Relationship Violence and Sexual Misconduct policy, that he would not be denied his rights in the event he was accused of a code of conduct violation. Because those promises were allegedly broken, the complaint holds Michigan State liable under an estoppel theory.
It should be noted that in many cases, it is contract claims that allow accused students to prevail in their lawsuits against their schools, owing to the fact that due process protections are far less robust in the administrative/school discipline setting than the criminal context.
Here, Michigan State is alleged to have improperly interfered with Mumphery’s employment with the Houston Texans when it “publicized the existence of the Title IX proceedings and the imposition of discipline against [Mumphery].” The complaint also states that Michigan State impermissibly disseminated information on Mumphery’s disciplinary status to “members of the press in the City where Plaintiff was employed,” which, at the time, was Houston. The disciplinary action taken against Mumphery was originally disclosed by the Detroit Free Press via an open records request.
As a result of various deficiencies both embedded in Michigan State’s disciplinary process and present in his particular case, the complaint asserts that Mumphrey’s common law right to basic fairness and a good faith adjudication of his case were violated.
Mumphery’s lawsuit is the next chapter in a long line of alleged Title IX failures at Michigan State that have involved MSU’s men’s basketball and football programs, as well as the litany of abuses committed by former athletic department physician Larry Nassar. But Mumphery’s case has been especially problematic, with the accuser filing a lawsuit of her own in November 2017 alleging that the school had not done enough to keep Mumphery away from her during the protracted investigation and adjudication, and then allowed him back on campus just days after the finding of responsibility.
Michigan State can defend Mumphery’s suit in several ways. On the Title IX claim, it could argue the complaint identifies no evidence of actual bias and instead relies on the court to infer bias from its allegedly unlawful actions. MSU could also argue that no contract existed between it and Mumphery since he was a “non-registered” student at the time of investigation and adjudication. Regarding the tortious interference claim, the University could claim that the information on Mumphery came to light as a result of its lawful compliance with an open records request; whether information on his disciplinary record should have released, however, is a different matter. Improper release of his records could violate Mumphery’s rights under the Family Educations Rights and Privacy Act (FERPA), although the complaint does not plead such a violation.
Cameron Miller is a 2016 graduate of Stanford University and earned a Master's in Sports Law & Business from Arizona State University in 2017. He is the Sports Lawyers Association's Research Assistant.
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