In a new court filing, Quintez Cephus, a student-athlete at the University of Wisconsin-Madison, alleges that the university violated his Fifth and Fourteenth Amendment rights to due process. According to the complaint, by conducting a Title IX investigation into allegations of sexual misconduct while Cephus was simultaneously subject to criminal proceedings, the university:
[K]nowingly and intentionally forced [Cephus] into the predicament of having to either waive his Fifth Amendment right against self-incrimination by choosing to participate in the University process despite the potential harm to his criminal defense, or decline to participate in the University’s process thus leading to the inevitable finding of responsibility and severe sanctions.
The allegations against Cephus stem from an April 2018 encounter between Cephus and two female students at UW-Madison. Cephus received a “Notice of Charge” letter from the UW-Madison’s Title IX Coordinator, Lauren Hasselbacher, alleging that Cephus had “engaged in sexual activity with [the complainants] on May 22, 2018 while they were incapacitated from alcohol and unable to provide consent.” Furthermore, the notice of charge letter indicated that Cephus had engaged in “Sexual Assault in the Second Degree, Sexual Assault in the Third Degree, a violation of Criminal Law . . .” Cephus maintains that the encounters with the two female students were consensual.
Interestingly, the complaint shows that the Title IX Coordinator alleged that Cephus had violated state criminal law (it is unclear if the “Notice of Charge” also included violations of UW-Madison policy). The fact that a Title IX complaint flatly alleged that a student had violated state criminal law (rather than simply university policy) is a stark reminder of a point that campus due process advocates routinely make: Very often, Title IX investigations are not merely about violations of campus codes of conduct, but actually serve as parallel, less regulated, and less capable investigations into violations of criminal law.
The complaint makes interesting arguments and highlights issues FIRE often sees regarding campus Title IX investigations running concurrently with criminal investigations and prosecutions.
First of all, Cephus and his attorney declined to participate in the university procedures because participation could prejudice his criminal case. Students in Title IX proceedings are not legally guaranteed the right to remain silent, which means that universities are free to find ways to punish them if they do refuse to testify or even to incriminate themselves. Nevertheless, statements made in a student conduct case can be admitted as evidence in a criminal proceeding. In a 2015 article called “Making Title IX Work,” journalist Jake New noted that one student’s testimony in another University of Wisconsin Title IX investigation was used to secure a criminal conviction:
The accused student denied the charges when interviewed by police, [Susan] Riseling [a University of Wisconsin campus police officer and university administrator] said. In his disciplinary hearing, however, he changed his story in an apparent attempt to receive a lesser punishment by admitting he regretted what had occurred. That version of events was “in direct conflict with what he told police,” Riseling said. Police subpoenaed the Title IX records of the hearing and were able to use that as evidence against the student.
“It’s Title IX, not Miranda,” Riseling said. “Use what you can.”
This is a stunning admission from a campus administrator; the state (in the employee of a university) used an end-run around Miranda to assist local law enforcement (another state agency) to obtain a conviction of a student.
Because this exact scenario is likely to be replicated across the country, it is completely reasonable for a defense attorney to urge her client to not participate in a university investigation that would undermine an imminent criminal defense strategy, or might criminally implicate the student. Students should not have to choose between defending themselves on campus and permanently waiving their Fifth Amendment rights. (Once you answer a question, you can’t later refuse to answer it.)
Another way that universities could better protect a student’s right against self-incrimination is to allow counsel to actively participate in campus disciplinary proceedings, a right that is all too often denied to students on either side in a campus proceeding.
Finally, courts have at their disposal several tools not currently in use in many university disciplinary proceedings. Discovery, subpoena power, rules of evidence, and requiring that people testify under oath on penalty of perjury help ensure that as much relevant evidence as possible is admitted and considered by the court. None of those processes exist in a university Title IX investigation. As the complaint states:
As significant, critical, and potentially exculpatory evidence would become available over the next few months in the criminal proceeding, counsel advised Defendant Hasselbacher that the collection of such evidence would likewise be critical to the Title IX proceeding, further warranting a stay of the University’s process until the criminal matter was resolved.
The UW-Madison investigation and disciplinary process will almost certainly have less access to relevant evidence, both exculpatory and inculpatory, and is therefore less informed on the factual basis for the complaints against Cephus than the criminal court.
This case will be certainly interesting to follow, and we’ll update our readers as it progresses.