Plain language analysis:
The current version of ch. UWS 4 provides a disciplinary process for pursuing dismissal of faculty for just cause. The current version of ch. UWS 7 provides a disciplinary process for pursuing dismissal of faculty in special cases of serious criminal misconduct, including sexual assault. The U.S. Department of Education has issued guidance related to sexual assaults at higher education institutions and has reaffirmed that Title IX protects students from sexual harassment carried out by school employees. Some of the expectations of the U.S. Department of Education may require modifications to the provisions under the current ch. UWS 4 in order for them to be met. The modifications contemplated by this rulemaking would incorporate into law some of the published expectations of the U.S. Department of Education. In particular, the new provisions would reflect the evidentiary burden of proof and the role of a complainant in the process.
If modifications are not made to chs. UWS 4 and 7, UW institutions will continue to adhere to the provisions of chs. UWS 4 and 7 and the federal guidance, but only to the extent that a conflict does not arise. Further, following both policy guidance and the law may lead to confusion. Summary of, and comparisons with, existing or proposed federal regulation:
Title IX of the Education Amendments of 1972 provides that "[N]o person in the United
States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Currently, there are no federal regulations interpreting this law with respect to addressing allegations of sexual misconduct; however, the U.S. Department of Education has issued guidance through Dear Colleague Letters which establish the federal agency's expectations for institutions of higher education that receive federal funding. This guidance is being enforced by the U.S. Department of Education through the Office for Civil Rights.
Comparison with rules in adjacent states: N/A
Summary of factual data and analytical methodologies: N/A
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report:
This rule was posted for 14 days for economic impact comments and none were received.
Fiscal Estimate and Economic Impact Analysis:
The Fiscal Estimate and Economic Impact Analysis is attached.
Anticipated costs incurred by private sector:
There are no anticipated fiscal costs on the private sector.
Effect on small business:
The proposed rules do not have an economic impact on small businesses.
Agency contact person: (including email and telephone)
Jane Radue
Executive Director and Corporate Secretary
Board of Regents of University of Wisconsin System
1860 Van Hise Hall, 1220 Linden Drive, Madison, Wisconsin 53706;
Telephone 608-262-4808;
Place where comments are to be submitted and deadline for submission:
The “Notice of Public Comment Period on Economic Impact and Fiscal Estimate” for ch.UWS 11 was available on the UW System homepage: https://www.wisconsin.edu/ (Look under “News, Events, & Announcements”) and the Board of Regents page: https://www.wisconsin.edu/regents/. The notice remained open from April 17, 2015 to May 1, 2015. No comments were received during this period. Public comments may be submitted to the agency in one of the following locations: (1) on the web at https://www.wisconsin.edu/regents/public-comment-form/ or adminrules.wisconsin.gov; (2) by email to board@uwsa.edu; (3) at a public hearing scheduled from 10:00 a.m. to 1:00 p.m. on October 26, 2015 in the Overture Room, Gordon Dining and Event Center, 770 W. Dayton Street, Madison, Wisconsin; or (4) by mail to Jane Radue, Executive Director, Office of the Board of Regents, 1860 Van Hise Hall, 1220 Linden Drive, Madison, Wisconsin. The deadline for submission of comments is November 2, 2015. (See PDF for image)
TEXT OF RULE
Section 1. UWS 4.015 is created to read:
UWS 4.015 Definitions.
The following terms shall have the meaning given below:
(1) “Clear and convincing evidence” means information that would persuade a reasonable person to have a firm belief that a proposition is more likely true than not true. It is a higher standard of proof than “preponderance of the evidence.”
(2) “Complainant” means any individual who is reported to have been subjected to sexual harassment, sexual assault, dating violence, domestic violence or stalking as defined in subparagraphs (5), (6), (9), (10) and (11).
(3) “Complaint” means an allegation against a faculty member reported to an appropriate university official.
(4) “Consult” or “consulting” means thoroughly reviewing and discussing the relevant facts and discretionary issues.
(5) “Dating violence” means violence committed by an employee against another person with whom they are in a “dating relationship” as defined in s. 813.12(1)(ag), Stats. (6) “Domestic violence” means conduct defined as “domestic abuse” in ss. 813.12(1)(am) and 968.075, Stats. (7) “Preponderance of the evidence” means information that would persuade a reasonable person that a proposition is more probably true than not. It is a lower standard of proof than “clear and convincing evidence.”
(8) “Reporting Party” means one or more individuals or groups filing a complaint as defined in subparagraph (3). A reporting party may also be a complainant as defined in subparagraph (2).
(9) “Sexual harassment” means conduct defined in s. 111.32, Stats. (10) “Sexual assault” means conduct defined in s. 940.225, Stats. (11) “Stalking” means conduct defined in s. 940.32, Stats. Section 2. UWS 4.02(1) and (3) are amended to read:
(1) Whenever the chancellor of an institution within the University of Wisconsin system receives a complaint against a faculty member which he/ or she deems substantial and which, if true, might lead to dismissal under s. UWS 4.01, the chancellor, or designee, shall within a reasonable time initiate an investigation and shall, prior to reaching a decision on filing charges, offer to discuss the matter informally with the faculty member. For complaints of sexual harassment, sexual assault, dating violence, domestic violence or stalking, the chancellor, or designee, shall appoint the Title IX Coordinator, or designee, to initiate an investigation in accordance with applicable policies. The chancellor, or designee, shall also offer to discuss the matter informally with the complainant, and provide information regarding rights under this chapter. Both the faculty member and the complainant shall have the right to be accompanied by an advisor of their choice at any meeting or proceeding that is part of the institutional disciplinary process. A faculty member may be dismissed only after receipt of a written statement of specific charges from the chancellor as the chief administrative officer of the institution and, if a hearing is requested by the faculty member, in accordance with the provisions of this chapter. If the faculty member does not request a hearing, action shall proceed along normal administrative lines but the provisions of ss. UWS 4.02, 4.09, and 4.10 shall still apply. (3) The statement of charges shall be served personally or by certified mail, return receipt requested. If such service cannot be made within 20 days, service shall be accomplished by first class mail and by publication as if the statement of charges were a summons and the provisions of s. 801.11 (1) (c), Stats., were applicable. Such service by mailing and publication shall be effective as of the first insertion of the notice of statement of charges in the newspaper. If the statement of charges includes sexual harassment, sexual assault, dating violence, domestic violence, or stalking, the statement shall be provided to the complainant upon request, except as may be precluded by applicable state or federal law. Section 3. UWS 4.05(1) (d) and (e) are amended to read:
(d) A right to an advisor, counsel and/or other representatives, and to offer witnesses;
(e) A right to confront and cross-examine adverse witnesses. If the complaint involves sexual harassment, sexual assault, dating violence, domestic violence or stalking, the hearing committee may reasonably restrict the faculty member or the complainant from questioning each other;
Section 4. UWS 4.05(2) is created to read:
