Should wide receiver Quintez Cephus be enrolled as a student at the University of Wisconsin—Madison, let alone play for the Badgers football team?
This question could soon become a legal matter for the university.
As reported late Friday by Kelly Meyerhofer of the Wisconsin State Journal, two women who accuse Cephus of sexual assault have retained prominent attorneyJohn Clune. Clune has represented a number of women who accuse high-profile men—from retired Los Angeles Lakers star Kobe Bryant, to Tampa Bay Buccaneers quarterback Jameis Winston, to Baylor football players, to U.S. Supreme Court Justice Brett Kavanaugh—of sexual assault. Here, Clune is tasked with attempting to force the university to explain why it re-admitted Cephus after expelling him last year and why it failed to consult with, and notify, his clients in advance of this decision.
If the university doesn’t comply with Clune’s demands, the two women could bring a Title IX and negligence lawsuit against the school. In a lawsuit, the women would argue that school officials unreasonably failed to comply with procedural requirements contained in Title IX and the Clery Act.
A brief primer on Cephus and the allegations against him
Cephus, 21, is a 6’1, 210-pound receiver for Paul Chryst’s team, which is currently ranked 17th in the nation. A native of Macon, Georgia, Cephus played well for the Badgers during the 2016 and 2017 seasons. He overcame a broken right leg, too. In 2017, he was third in the Big Ten in receiving yards per reception. Cephus was seemingly on the path to an NFL career.
Everything changed on the evening of Saturday, April 21 and early morning of Sunday, April 22 in 2018. While in his apartment, Cephus engaged in sexual acts with two female Wisconsin students. There is agreement by all parties that these sexual acts occurred. Their disagreement is whether the acts were consensual or non-consensual.
More specifically, the complainants contend that they were incapacitated from alcohol and thus not able to lawfully offer consent. Cephus is depicted as taking advantage of their inebriation. One of the complainants went to the hospital emergency room shortly after leaving the apartment to allege that she had been raped.
Later that Sunday, Madison Police executed a search warrant of Cephus’s apartment and secured relevant evidence. A few days later, Cephus was suspended from the football team. After hiring criminal defense attorneys, Cephus learned from the university’s Title IX compliance office that he was under university investigation. He also became aware the Dane County District Attorney’s Office was investigating him for possible sexual assault charges.
By the end of May, Cephus received a notice of charge from the university indicating that he was formally accused of violating the University of Wisconsin Administrative Code. The alleged violation stemmed from engaging in acts of sexual assault.
Cephus sues the University of Wisconsin in federal court
The simultaneous university investigation and criminal investigation, Cephus would argue in a federal lawsuit filed against the school on October 9, 2018, deprived him of a fair process.
He insisted that the university “knowingly and intentionally forced” him into the predicament of having to decide whether to waive his Fifth Amendment right against self-incrimination as a necessary means of participating in the university’s investigation.
Put more bluntly, if Cephus spoke with university investigators, any records stemming from those meetings, along with emails and other records that he shared, would be subject to subpoena by prosecutors. Alternatively, if he refused to speak with university investigators, the university could take his refusal as an inference of guilt and use it to justify expelling him.
To that point, the Fifth Amendment right against self-incrimination does not extend to civil matters, including university disciplinary proceedings. Cephus thus felt that the university had boxed him into a corner where he had to be a passive participant as the school considered whether to expel him.
Along those lines, the pending criminal investigation prevented Cephus from feeling comfortable enough to question the two complainants as well as other witnesses who offered their recollections of the evening. Cephus’s attorneys from the law firm Nesenoff & Miltenberg highlighted that Wisconsin is a public university and is thus obligated to adhere to Constitutional safeguards in its treatment of students. They claimed that the school had denied Cephus due process and equal protection under the Fourteenth Amendment. This allegedly occurred by the university refusing to postpone its investigation until after the criminal matter had concluded.
The attorneys also maintained that the university had discriminated against Cephus on the basis of his race. They noted that both of the complainants were white and that the father of one of them is a prominent attorney in Chicago. The father allegedly pressured the school to view Cephus with suspicion because he is African American. This racial dynamic, Cephus’s legal team contends, led the school to treat Cephus worse.
Meanwhile, Cephus’s criminal defense attorney, Stephen Meyer, informed school officials that law enforcement had obtained exculpatory evidence that refuted the complainants’ claims. The evidence, at least as detailed in Cephus’s lawsuit, contained “toxicology reports, security camera footage, a forensic examination of Plaintiff’s phone and the results of the execution of a search warrant of Plaintiff’s apartment.”
The exculpatory evidence did not sway the university. Cephus would be expelled for non-academic misconduct. The relevant standard for the university issuing a dismissal was a finding by a preponderance of the evidence—meaning more likely than not—that Cephus had engaged in unauthorized acts. Cephus dropped his lawsuit in March of this year.
A jury finds Cephus not guilty
Cephus’s attention soon turned to criminal charges. He faced two felony charges: one count of second-degree sexual assault of an intoxicated victim and one count of third-degree sexual assault. While Cephus, as a first-time offender, would not have been sentenced to maximum possible prison sentences, he would have likely been sentenced to multiple years in prison if he had been convicted.
Cephus went to trial this past July.
As reported by Lawrence Andrea of the Milwaukee Journal Sentinel, prosecutors and Cephus offered radically different accounts of what took place in his apartment. One of the complainants testified that the other was clearly incapacitated when Cephus had sex with her. Cephus was portrayed as knowingly taking advantage of a situation where he engaged in sexual acts with persons who lacked the capacity to consent.
Cephus, who chose to testify in his own defense, portrayed the two women as having flirted with him in a bar earlier in the evening and then asking him for a “sleepover.” Cephus insisted that after they entered his apartment, one of the women immediately went to his bedroom to disrobe and got into his bed. According to Cephus, neither said “no” or gave any indication to stop once sexual acts began.
The jury found Cephus not guilty of both counts. The fact that the university found Cephus guilty and a jury in a criminal trial found him not guilty does not mean one got it right and the other got it wrong. Each legal forum involved very different burdens of proof (i.e., more likely than not versus beyond a reasonable doubt), occurred at different points in time and relied on different evidence, testimony, procedural rules and adjudicators.
The decision to re-admit Cephus could trigger a lawsuit
The university re-admitted Cephus a few weeks after the jury verdict. The school then cleared him to play. Cephus played in the Badgers first game of the season last Saturday when they blew out South Florida, 49–0.
The decision to re-admit Cephus surprised many. In a statement, UW-Madison Chancellor Rebecca Blank explained that the school’s decision was “based on the availability of substantial new information that wasn't made available to us during the earlier process.” This statement could mean that the school reached a different conclusion about Cephus after monitoring the trial and hearing from him, in his own words, while on the witness stand.
It is unusual for a school to expel a student and then re-admit him or her. The Wisconsin State Journal reports that three expelled Wisconsin students (two for academic misconduct and the other for an undisclosed reason) sought readmission between 2014 and 2018. Each was denied.
Further, an expelled student often prefers to pursue their studies elsewhere and with a fresh start than attempt to re-join a school that kicked him or her out.
Cephus, however, is unlike most college students: he is an NFL prospect who wants to play on a high-profile college football team. Last year, Pro Football Focus ranked him as college football’s top receiver when targeted for passes. A skeptic might wonder if Wisconsin permitted Cephus to rejoin because he would bolster a top 25 football program. Under this theory, the jury verdict in favor of Cephus provides the school cover.
Clune told the Wisconsin State Journal that the university’s swift decision to re-admit Cephus may have broken the law. He claims the university was legally obligated to involve the two complainants in the decision-making process of enrolling a student whom the school previously found had violated school rules in a sexual assault matter. Clune also notes that, as a matter of their safety and public safety, the school was obligated to alert them of the pending re-admission.
Key legal arguments in potential lawsuit
Clune is a very skilled attorney at using civil actions to hold institutions responsible for employing or supervising persons who are accused of sexual assault. His threat to sue Wisconsin should thus be taken at face value: he is not bluffing.
If Clune sues on behalf of the two complainants, Title IX would be a key area of law in the lawsuit. Colleges that fail to remedy sexually hostile environments are vulnerable to adverse findings under Title IX. The complainants could argue that Wisconsin officials were deliberately indifferent to their victimization. The school, under this view, picked advancing the interests of the football program over the interests and safety of students.
A Title IX lawsuit would be strengthened if Clune could identify structural problems at Wisconsin in its handling of sexual assault allegations, particularly in the context of accused athletes. For instance, if football players are seldom disciplined or if the school makes it difficult for students to report sexual assaults, Title IX would more likely have been violated. Similarly, if the football program recruits players with histories of violence toward women, that too would help to build a legal argument.
A lawsuit would also likely invoke the Clery Act. The Clery Act is a federal law that requires universities to disclose to students and other community members information about sexual assault incidents and other criminal threats, as well as relevant policies for responding to such incidents and threats. Although the Clery Act lacks a private right of action and is enforced only by the government (U.S. Department of Education), its requirements can be cited in a negligence lawsuit.
To that end, the complainants could insist that Wisconsin had a duty to protect them from a fellow student (Cephus) and breached that duty through unreasonable conduct. Clune, on behalf of the complainants, would insist that the school failing to discuss the re-admission of Cephus was unreasonable under the Clery Act—particularly after the school had already found him at fault.
If sued, the university would push back. The school would deny that it violated any laws. It might also claim that its ability to disclose information was restricted by another federal law, the Family Educational Rights and Privacy Act (FERPA). FERPA governs the privacy of student records and is often invoked by universities when they decline to share records—including disciplinary records—of students.
Whether or not a lawsuit brought by Clune prevails, it would likely compel university officials to provide sworn testimony, as well as emails and other documentation, pertaining to the decision to re-admit Cephus. Such information may include statements by certain university employees, including Badgers coaches and athletic department officials, on the pros and cons of bringing Cephus back.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.