Lawyers: MSU not liable for distress caused by letting sex assault attacker back on campus

Michigan State University can't be held responsible for emotional distress suffered by a student sexually assaulted on campus or from the victim seeing the attacker again on university grounds, lawyers from MSU argue in recent court filings.

The lawyers also argue that the university taking a long time to discipline the attacker and not following its own rules for handling sexual assault accusations is not proof that the university was "deliberately indifferent" to Title IX requirements, which mandate that universities investigate all sexual violence and harassment allegations.

The dual arguments are part of MSU's attempt to get a federal judge to drop a lawsuit against it by a female student who says she was sexually assaulted by former MSU football player Keith Mumphery in 2015. The lawsuit alleges MSU's athletic department helped Mumphery come back to campus after he had been banned because of the assault. Mumphery, who never was charged in criminal court because prosecutors could not prove their case beyond a reasonable doubt, played for the Spartans in 2011-14. He was expelled in 2016 from his graduate studies program.

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In addition to this lawsuit, MSU is facing multiple lawsuits from victims of former MSU doctor Larry Nassar and at least one other federal lawsuit from other women over its handling of their sexual assault claims. In January, a judge sentenced Nassar to 40 to 175 years in prison as part of a plea deal on seven counts of first-degree criminal sexual conduct involving more than 156 girls and women over more than two decades. MSU has been accused of covering up Nassar's actions. The university denies it.

The lawsuit over the allegations involving Mumphery says the university only took proper action after the federal Office of Civil Rights forced it to re-evaluate cases and after Mumphery had used up his playing eligibility at the school. 

That delay in taking action doesn't mean MSU should be held legally liable because it ultimately did find Mumphery responsible, the court filings say. 

As for letting him back on campus? MSU can't be held responsible for any emotional distress the woman might have suffered, particularly because there's no evidence the woman ever actually ran into Mumphery on campus, lawyers argue. 

Indeed, MSU's lawyers write, the woman has no reason at all to sue MSU because schools "generally have no constitutional duty to protect students from harm caused by private third parties," like Mumphery.

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Not so fast, the woman's lawyers say.

They argue she "suffered from flashbacks, nightmares, hypervigilance, depression, that she was floundering, her grades were suffering, she could not sleep, and that she lived in fear of seeing not only her attacker but his friends as well, and thus became withdrawn.

"A school is deliberately indifferent to acts of student-on-student harassment where the school’s response to the harassment, or its lack thereof, is clearly unreasonable in light of known circumstances. 

"(MSU) allowed Plaintiff’s attacker to roam the campus at will and even invited him back to MSU and East Lansing after he completed his 5th year football season, further demonstrating clear, deliberate indifference to the sexual assault Plaintiff endured."

MSU initially cleared Mumphery, but went back and re-investigated after the federal Office of Civil Rights and Michigan State signed an agreement in late 2015 that mandated the university re-evaluate how it handled several sexual assault allegations, including this case.

According to the lawsuit, on Jan. 22, 2016, a review panel convened and determined  MSU's investigative office made both procedural errors and arbitrary and capricious findings when investigating the sexual assault complaint.

The investigative office was directed to reopen the investigation to clarify its findings and to remedy the procedural errors.

On March 21, 2016, a full year after the assault was reported, investigators found that the victim had not given “consent” as defined in MSU’s Policy on Relationship Violence and Sexual Misconduct and that Mumphery violated the policy by sexually assaulting the plaintiff. 

Mumphery played for the Spartans in 2010-14 and caught the final touchdown in their win over Baylor in the Cotton Bowl Classic on Jan. 1, 2015, his last game at MSU. He has played two seasons with the NFL's Houston Texans, but was waived before the start of this season.

The Free Press brought Mumphery's case to light after receiving documents via open records laws. His case was also included in reporting by the Free Press and ESPN on a number of sexual assault cases in the football program at MSU.

Contact David Jesse: 313-222-8851 or djesse@freepress.com. Follow him on Twitter: @reporterdavidj