Title IX

An MSU Student Said an Athlete Raped Her. Officials Found Him Innocent, Then Expelled Him—and He Had No Idea.

A Title IX case involving a black male athlete and a white female accuser raises serious due process concerns.


Cliff Welch/Icon Sportswire 357/Cliff Welch/Icon Sportswire/Newscom

A female student at Michigan State University accused a star athlete and graduate, Keith Mumphery, of sexual misconduct in 2015. Officials investigated the claim, and cleared Mumphery of wrongdoing—partly because of the numerous inconsistencies in the female student's story.

Months later, after the female student ("Jane Roe") appealed the decision, MSU changed its mind and expelled Mumphery. The university attempted to inform Mumphery of the appeal, second investigation, and subsequent expulsion, but his MSU inbox was full, and administrators' emails bounced back.

Mumphery earned a spot in the National Football League and played for the Houston Texans, at first blissfully unaware he had been found responsible for sexual misconduct and banned from MSU. His football career came to a sudden end, however, in June 2017, after The Detroit Free Press published an article revealing the expulsion. Mumphery was cut from the team two days after the article was published.

That's all according to Mumphery's lawsuit against MSU, which he filed last week. The former athlete is represented by Andrew Miltenberg, an attorney who has defended many students accused of sexual misconduct. (I've interviewed Miltenberg here.) Miltenberg also defended Grant Neal, who was wrongfully expelled from Colorado State University-Pueblo for sexually assaulting his girlfriend, even though she stated firmly that he had never raped her. Neal later won a settlement from CSUP.

Mumphery's situation resembles Neal's, and suggests a similarly egregious violation of not just due process but basic fairness. Mumphery, like Neal, was a black man—his alleged victim, like Neal's, was a white woman. I suspect that students of color are disproportionately punished for violating Title IX, the federal statute understood by college officials to compel sexual misconduct investigations, and my suspicions are shared by several writers and legal experts who cover this subject. (Atlantic contributing editor Emily Yoffe has written that students of color are "vastly overrepresented in the cases I've tracked," and this has been my experience as well.)

Here are the details of the sexual misconduct allegation against Mumphery, as recounted in the lawsuit.

Mumphery met Roe, a freshman student, on Tindr in November 2014. Mumphery had already graduated from the university, and was pursuing a master's degree in communications. They gradually lost touch with each other, and Mumphery moved to Florida in January 2015 to train for NFL scouting. He returned to campus on March 14, 2015, to participate in an NFL scouting opportunity. On March 17, Roe texted Mumphery, and invited him to come to her dorm room. She also sent him a topless photo of herself, according to the lawsuit.

Around 9:00 p.m., Mumphery ate dinner in his car outside Roe's apartment building. Roe would later claim he was dealing drugs out of his car—an "outlandish" falsehood, according to the lawsuit.

After finishing dinner, Mumphery entered Roe's dorm room. Roe was sober, according to the lawsuit. She changed clothes in front of him, and then they started kissing. This gradually progressed to sexual touching, and digital penetration once Roe had disrobed.

"There was never any pushing or other form of aggression," according to the lawsuit. "Rather, the entire encounter was consensual in nature."

The encounter came to a halt when Mumphery—still fully clothed—said that he would only have sex with Roe if he was wearing a condom. (Mumphery later told the investigators, "My sister got a baby and I don't have sex without a condom.") Roe allegedly became so distraught about this development that Mumphery phoned a friend to ask for advice. Roe spoke with the friend as well. She became angrier and angrier, according to the lawsuit, and Mumphery decided to leave before things escalated further.

The next day, Roe told the police that Mumphery had raped her. The prosecutor declined to pursue charges, however, in part because Roe did not respond to the prosecutor's request for a meeting.

The fact that law enforcement declined to pursue criminal charges did not deter the university from conducting its own investigation. Indeed, as readers of my previous coverage of other cases like this are well aware, the police process is totally independent from the Title IX process. And so MSU administrators with the Office for Institutional Equity (OIE) looked into the matter on their own.

Their conclusion, issued in September 2015, was that "the preponderance of the evidence did not support Roe's allegation of non-consensual sexual intercourse." The OIE investigator, Dr. Catherine Riley, noted that Roe made several statements undercutting her credibility.

This finding was emailed to Mumphery at his MSU email address. But Mumphery never saw it: His MSU inbox was full, and he had little reason to check it. He had been drafted by the Houston Texans the previous May, and wasn't living on campus.

On October 27, Roe appealed MSU's findings—an option available to her under university policy, and required by the Obama-era Education Department's Office for Civil Rights, which enforces Title IX. According to Mumphery's lawsuit, MSU manfestly violated Mumphery's due process rights by failing to notify him of this second investigation. Administrators eventually held a hearing on the matter of Roe's appeal—a hearing neither Roe nor Mumphery attended (the latter having no idea it was taking place).

On March 21, 2016, MSU reversed its initial finding and declared that Mumphery had committed both sexual assault and "sexual exploitation" for calling his friend to discuss the encounter. He was prohibited from enrolling in classes at MSU until 2019 and banned from campus.

A spokesperson for Miltenberg's office tells me that MSU never successfully informed Mumphery of this finding, since the emails bounced. He didn't find out until he came to MSU for a golf outing, at which point a football coach told him that he wasn't allowed on campus.

"Note—MSU clearly had the ability to contact him, since the MSU Football program invited him to the outing," Miltenberg's office told me. "So it's not like they were unable to track him down."

The Detroit Free Press article on his case came out a few months later. The revelation shocked many in the Houston sports world: Houston Press sports writer Sean Pendergast asked, "how in the hell are we just finding out about all of this now?"

But the Freep article was appallingly misleading. Notably, it failed to mention that MSU officials initially cleared Mumphery of wrong doing, and then revisited the matter without Mumphery's awareness or participation. That's a consequential omission, given that the article resulted in Mumphery's dismissal from the Houston Texans.

There are two sides to every sexual misconduct dispute, and it's of course possible Mumphery did something very wrong on March 14, 2015. But the investigator who actually spoke with both Mumphery and Roe—Catherine Riley—decided that a preponderance of the evidence favored Mumphery's account. Only the subsequent investigation, in which neither Roe nor Mumphery nor Riley participated, produced a finding of guilt. The former athlete presents a strong argument that MSU wronged him, and should make amends while guaranteeing that this never happens to another accused student.

In a statement, Miltenberg accused MSU of railroading Mumphery in order to distract from its mishandling of the Larry Nassar sexual abuse scandal.

"In order to arrive at their predetermined outcome of guilty, Michigan State conducted a sham investigation and blatantly ignored the due process rights of my client, who at the time had already graduated from Michigan State and was training in Florida," said Miltenberg. "The University repeatedly and systematically failing to give him notice of the appeal and the subsequent second investigation. Mr. Mumphery continues to suffer ongoing harm, including damages to his reputation and the permanent loss of employment and educational opportunities."