The Gross Unfairness of Title IX Goes National

Male and female gender symbols in fire of love

Two national publications—the New York Times and the Atlantic—have recently reported on procedural abuses in the Title IX system. Both pieces are must-reads, and reminders of how the one-sided nature of campus Title IX tribunals, analyzed for years mostly by smaller media outlets like this one, has at last decisively permeated mainstream media.

Michael Powell’s New York Times article on Keith Mumphery and Michigan State is extraordinary, one of the best single items written on the issue since its emergence with the 2011 “Dear Colleague” letter to colleges from the Office of Civil Rights in President Obama’s Department of Education. The story that Powell relays is a deeply troubling one, even for the genre of Title IX cases: Mumphery was initially found not guilty by a Michigan State system that is heavily tilted structurally toward accusers. (The police also declined to file charges against him.)

But the case wasn’t over—his accuser, taking advantage of the “Dear Colleague” mandate that schools adhere to double-jeopardy principles in campus sex tribunals, appealed the not-guilty finding. By this point, Mumphery wasn’t even at MSU anymore; he was prepping for his NFL career. He never received notice of the appeal, which was sent to an inactive MSU e-mail account. (Michigan State refused to answer Powell’s question of whether the university had any reason to believe Mumphery ever knew of the appeal.) Michigan State’s appeals process, relying on the same evidence the university and police had previously deemed insufficient, found him guilty.

Moreover, the harm here was obvious: Mumphery lost all chance of an NFL career because of Michigan State’s handling of his case. The Houston Texans cut him after word of the granted appeal became public (through a Detroit Free Press article that didn’t mention the initial not-guilty finding), and it seems clear that without some sort of intervention from team owners, coaches, sportswriters or ordinary fair-minded people, he won’t be getting another NFL opportunity soon. He is suing Michigan State.

Caitlin Flanagan’s Atlantic column, meanwhile, examines a bizarre case at the University of Cincinnati, one of the few documented cases (and, as far as I know, the only due-process lawsuit) with a male accuser and a female accused student. Both students were very drunk; given the facts of the case, either each student sexually assaulted the other, or there was no offense. But as Flanagan pointed out, “The functionaries of the college sex panic have an obdurate habit of determining that the victim of a blearily remembered amorous encounter is the person who decides to report it, with all ties broken by the one who reports it first.” The whole episode, she added, “proceeds from the assumption that if two drunk college students make out, one of them—and only one of them—is a victim of the event.”

As with the Mumphery case, we don’t need to debate the harm: the accuser has a ROTC scholarship, which means she’ll likely lose her chance at a military career and have to repay her previous tuition unless Cincinnati’s decision is overturned.

The point isn’t that Michigan State and Cincinnati are factually typical cases—they’re not. Most cases don’t involve, as the MSU case did, interracial allegations (though nearly all interracial allegations that have come to light through lawsuits have featured accused students of color). And most cases don’t involve, as the Cincinnati case did, male accusers.

Procedurally, however, these cases are all too typical. Mumphery’s case is a classic example of procedural unfairness, in this instance, how the double-jeopardy provision can lead to unfair results; similar claims have been made in lawsuits against George Mason, James Madison, Michigan, Texas, and Coastal Carolina. And Cincinnati has been one of the most sued institutions in the country—facing allegations from a denial of any form of cross-examination to a case investigator having a romantic relationship with the accuser whose case he was handling.

The more attention that this sort of unfairness receives, the better for all concerned.

KC Johnson

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

10 thoughts on “The Gross Unfairness of Title IX Goes National

  1. Typo alert:

    You write:

    As with the Mumphery case, we don’t need to debate the harm: the accuser has a ROTC scholarship, which means she’ll likely lose her chance at a military career and have to repay her previous tuition unless Cincinnati’s decision is overturned.

    “Accuser” should be “accused.”

      1. The article makes it clear that the accuser was a man, the accused was a woman. Unless the article is wrong.

  2. Thank God.

    Though perhaps we should hesitate, knowing too well the persistence of these Bureaucratic Undead,

    Perhaps we should reserve our thanks until or unless something real & substantive actually occurs…. wait until the Title IX Sexual Assault Machine (like some “vast image out of spiritus mundi…a shape with lion body and head of man…its gaze blank and pitiless as the sun”) actually grinds to a shuddering halt in a Looney Tunes explosion of gears & smoke (exposing all the little Title IX Elmer Fudds inside, busily pushing all those ‘sexual assault’/sensitivity training buttons which have made their careers for the last decade or so … “PLEASE Don’t look behind the curtain!”).

    It is so easy to bemoan the injustice (especially when it is so painfully obvious). It is so easy to exclaim and flounce and jump about and say (as per Ms. Flanagan): “The system as it currently exists has burrowed itself so deeply into the private sexual behavior of adult students that it stands as a hovering third party to every intimate act, a monitoring, prurient, vengeful force.” But the truth is….we made it that way. We invited it in…gave it a home. Dressed it in the fashion of the 4th Wave Feminist as Victim (“We are women hear us whimper”). Gave it voice in “Dear Colleague”. Embraced it every time we (in the form of the White House & Congress & the media) endorsed the idiot myth that “1 out of 5” (sometimes “1 out of 4” depending upon how hyperbolic the reporter) college women are sexually assaulted during their college careers when the real rate is not 20%….not 5%….not even 1% …. but rather (per Clery, et al), .05%.

    But the truth flies in the face of the Myth. The reality runs counter to the Narrative. And when you define yourself by your membership in the Victim Class, then every non-member becomes an Oppressor, a Predator, a Patriarchal Privileged Male who refuses to listen to the silent voice of the Helpless Victim. And how do we know & recognize her victimhood? Our first duty, we’re told, is “to believe”: to believe most critically that the ‘truth’ of any given sexual interaction is defined and determined SOLELY by whichever individual first plays the victim card, “I didn’t really want to.” This is insane.

    And worse than insane for it runs so dreadfully counter to the efforts expended over the last half-century to grant to adults the freedom to actually BE adults, responsible for their bodies and their own, individual selves.

    But that was then and this is now….and now, here in Wonderland, having swallowed the Blue Pill, and snarfed down the cake (making us very small indeed), we are convinced that women are infants, incapable of deciding and acting in their own best interests… especially when confronted by the power of the male gaze and male persuasion because – here in Wonderland – we know all men are animals (rapists and rapists-in-waiting, ‘God Bless Us, Every One’).

    Maybe things are changing. Maybe people are waking-up. Maybe enough lawsuits have been filed by enough Title IX Roadkill, costing Universities enough money … that maybe all this garbage which is the Title IX Victim Infrastructure/Star Chamber/Kangaroo Kourt Nonsense… maybe all that will be tossed.

    But I’m not optimistic.

    We are talking, after all, about Big Bureaucracy (the Deep State/University Complex)….and Dean Bartleby, it seems (more often than not) “prefers no to”.

    1. I believe Betsy DeVos has revoked the Dear Colleague letters in question and specified a much fairer process that is to be followed by colleges for such sex assault cases, while a formal rulemaking proceeds. These seem to be older cases with the old star-chamber system.

      1. All that Secretary DeVos did was to remove the requirement that schools use the preponderance of evidence as the standard. To the best of my understanding she did not mandate using clear and convincing evidence. I am not aware that any other procedural deficiencies were addressed.

  3. It’s been over 10 years since institutions of higher education answered the question, “What lessons have we learned from Duke Lacrosse?” with “Change the rules so next time they’ll be guilty.” And for over 10 years the MSM ignored the threat. Now at last real justice is getting a fighting chance against its counterpart Orwellian perversion Social Justice.

    You were there right at the beginning of the war against Social Justice, when just a handful of us saw the brutal truth about it and the animals who enforce it. (It was you in fact who opened my eyes to the evil of Social Justice.)

    Thank you, and you have every right to feel personally vindicated. The war on Social Justice rages on, but we have allies now, powerful allies like Betsy DeVos; the GamerGaters; free speech movements including the “Intellectual Dark Web”, Sargon’s Liberalists, and FIRE; and a tiny handful of criminal defense attorneys on the Left who have read their history and hear with dread the phrase “McMartin Preschool”.

    But in the beginning when we were surrounded, outnumbered, and outspent by billion-dollar Social Justice advocacy foundations with nothing but the truth on our side it was just you, Ashe Schow, and a handful of blogs like Instapundit and Volokh who carried your message standing as the voice of reason against the Title IX witch hunts, Manju Rajendran style lynch mobs, and the Social Justice machinery that supported them.

    Remember Paul Nungesser! Remember Phi Kappa Psi! Remember the Duke Lacrosse Three! For real justice to prevail Social Justice must burn. Thank you for lighting the fire!

  4. These cases infuriate me, especially since a lot of them don’t involve sober people. How one drunk can be believed over another is beyond me, and 99% of the time the female participant is believed over the male. Just from what I remember from being in college, just because there is regret the next day on either part, that shouldn’t point to an assault. Parents should be educating their children before they leave for college to try to avoid these situations if at all possible. If I had college-age sons, I would be very scared to send them to college in this atmosphere.

  5. New York Times? The Same New York Times that wrote “Files From Duke Rape Case Give Details But No Answers?” THAT New York Times? The one that said “[A]n examination of the entire 1,850 pages of evidence gathered by the prosecution … shows that while there are big weaknesses in [District Attorney Mike] Nifong’s case, there is a body of evidence to support his decision to take the matter to a jury.” Really, THAT NEWSPAPER????

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