Opinions Editor

Jim Dey is a staff writer for The News-Gazette. His email is jdey@news-gazette.com.

Listen to this article

A Dane County, Wis., jury recently needed less than 45 minutes to deliberate before returning not-guilty verdicts in a sexual-assault case involving a University of Wisconsin football player.

Two women told police they were too intoxicated to consent to having sexual relations with Quintez Cephus. But evidence presented to the jury included surveillance-camera video that showed the two women walking — not stumbling or falling — under their own power from a bar to the football player’s apartment building.

“For 12 months, I thought about this case, and I kept asking myself, what if there wasn’t a video? What if these videos didn’t exist? Would he be standing here now (acquitted)?” said Stephen Meyer, one of Cephus’ lawyers.

Jurors in the criminal case may have found the defense evidence compelling. But it was a different story at the university, where Cephus was found guilty of sexual assault, suspended from the football team and expelled.

Despite Cephus’ Aug. 2 acquittal, the university has not re-admitted him to school. While officials say they are reviewing the matter, his lawyer has lambasted the school for its “continued failure” to “do the right thing.”

What do universities owe accusers and the accused in student disciplinary cases? That’s a question that has raised a variety of issues, particularly as disputes between students run the gamut from relatively minor to extremely serious.

Believe it or not, the issue may someday be presented in a legal case heard by the U.S. Supreme Court.

As a consequence of an Aug. 6 decision, two federal appeals courts — the 1st and 6th districts — now are at odds about the extent to which the accused should be afforded an opportunity to defend themselves in a disciplinary hearing.

Further, a federal appeals court in July blasted Purdue University’s disciplinary process, describing it as a sham that discriminated against men accused of wrongdoing.

Finally, Urbana-based U.S. Judge Colin Bruce publicly warned the University of Illinois that its disciplinary process is treading on thin constitutional ice by refusing to allow those accused a “meaningful opportunity to be heard.”

The universities have brought a big part of this problem on themselves, partly as a result of pressure from the federal government, because of their predisposition to take up allegations previously addressed by law enforcement.

If a student is accused of a crime by a fellow student — like sexual assault — police may or may not be called. But universities also may inject themselves into the dispute, conducting investigations and holding what amounts to trials.

Critics, however, suggest that universities frequently mishandle these disputes because staffers have no criminal investigative skills and little familiarity with requirements for conducting impartial hearings that protect the rights of all concerned.

The result has been a blizzard of litigation filed by those who feel abused by what they claim is the absence of due process.

Quoting a researcher, the Detroit News recently reported that colleges and universities have been named in nearly 300 lawsuits and that another 72 lawsuits were settled out of court.

The UI was recently sued for denying a diploma to a graduate student after graduation because a university panel found him responsible for a sex-related offense. The UI settled the suit by awarding the student his degree.

There is no dispute that federal courts are holding universities to their duty to allow accused students an opportunity to defend themselves. But the devil is in the details.

The Cincinnati-based 6th Circuit held that an accused or the accused’s lawyer has a right to cross-examine witnesses.

“Due process requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented’ for uncovering the truth. Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’ story to test her memory, intelligence or potential ulterior motives,” Justice Amul Thapar wrote.

But in a similar case, the Boston-based 1st federal district appeals court did not go that far, holding that the accused does not have a right to personally conduct a cross-examination even though there must be cross-examination.

“... due process in the university-disciplinary system requires ‘some opportunity for real-time cross-examination,’ even if only through a hearing panel,” wrote Justice William Kayatta Jr. in a case involving the University of Massachusetts at Amherst.

That case illustrates the dilemma that universities confront when they involve themselves in disputes that embrace alcohol, sex and sometimes stormy relationships between male and female students.

It involved a male and female student who had a close romantic relationship that included heavy drinking and physical confrontations. Further, when ordered to have no contact, each immediately flouted the no-contact rule because of their mutual attraction.

The male student was subsequently suspended without receiving a hearing. Later, he received a hearing but argued that neither he nor his lawyer were allowed to question his accuser personally and that the hearing panel did not conduct an adequate review.

The appeals court found that the student was wrongfully suspended without a hearing but was properly denied the right to confront his accuser personally at a subsequent hearing.

Jim Dey, a member of The News-Gazette staff, can be reached at jdey@news-gazette.com or 217-351-5369.

Jim Dey is a staff writer for The News-Gazette. His email is jdey@news-gazette.com.