In response to the guidance issued by the U.S. Department of Education in the last few years, the University of Wisconsin System Administration provided written guidance to UW institutions to acknowledge the U. S. Department of Education's expectations for the manner in which institutions handle sexual misconduct on campus. This guidance, however, was developed with the acknowledgment that it does not supersede ch. UWS I 7. Consequently, some of the expectations of the U.S. Department of Education cannot be met because they would conflict with certain provisions under the current chapter, such as certain rights afforded only to an accused student. The modifications contemplated by this rulemaking would incorporate into law what now exists in the System's Guidance and thus reflect best practices as well as the expectations of the U.S. Department of Education. Further, the modifications would permit the University to incorporate those expectations which now are inconsistent with the existing rule. Institutions would adopt policies consistent with the new chapter.
The alternative would be to continue to operate with both ch. UWS 17 and the guidance. This, however, would be less effective and could lead to confusion. Instead of one single policy that is intended to be easily understood by students, the current framework includes ch. UWS 17, the internal guidance provided by the University of Wisconsin System Administration, and guidance provided by the U.S. Department of Education. Summary of, and comparisons with, existing or proposed regulations:
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:
There is no anticipated economic effect of the proposed rule.
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;
email address: jradue@uwsa.edu.
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 17 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. TEXT OF RULE
Section 1. UWS 17.02 (2)(m) is created to read:
(m) “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 s. UWS 17.09.
Section 2. UWS 17.02 (14)(m) is created to read:
(m) “Respondent” means any student who is accused of violating any provision of this chapter, and was registered for study in an institution for the academic period, or between academic periods for continuing students, when the misconduct occurred.
Section 3. UWS 17.05 is amended to read:
UWS 17.05 Designation of investigating officer. The chief administrative officer of each institution shall designate an investigating officer or officers for allegations of student nonacademic misconduct. The investigating officer shall investigate student nonacademic misconduct and initiate procedures for nonacademic misconduct under s. UWS 17.11. For allegations involving sexual assault, domestic violence, dating violence, stalking or sexual harassment, the chief administrative officer shall involve the Title IX Coordinator, or designee, in accordance with applicable institutional policies. Section 4. UWS 17.09 (17) is created to read:
(17) Dating violence. Violence committed by a student against another person with whom they are in a “dating relationship” as defined in s. 813.12(1)(ag) Stats. Section 5. UWS 17.09 (18) is created to read:
Section 6. UWS 17.09 (19) is created to read:
(19) Sexual Harassment. Conduct defined in s. 111.32(13) Stats or as defined in Board of Regent Policy that addresses sexual harassment. Section 7. UWS 17.11 (2) is amended to read:
(2) Conference with Student Respondent. When the investigating officer concludes that proceedings under this section are warranted, the investigating officer shall promptly contact the student respondent in person, by telephone, or by electronic mail to offer to discuss the matter with student. The purpose of this discussion is to permit the investigating officer to review with the student the basis for his or her belief that the student engaged in matter, review the investigating officer’s basis for believing that the respondent engaged in nonacademic misconduct, and to afford the student respondent an opportunity to respond. If the student does not respondent fails to respond to the investigating officer’s offer to discuss the matter, the investigating officer may proceed to make a determination on the basis of the available information. A complainant shall have all the rights provided to the respondent in this subsection.
Section 8. UWS 17.11 (3) is amended to read:
(3) Determination by the investigating officer that no disciplinary sanction is warranted. If, as a result of a discussion under sub. (2) or review of available information, the investigating officer determines that nonacademic misconduct did not in fact occur, or that no disciplinary sanction is warranted under the circumstances, the matter will be considered resolved without the necessity for further action. The investigating officer shall simultaneously notify the respondent and the complainant of this outcome and offer to discuss it separately with either one. If the investigating officer determines that nonacademic misconduct did not occur or that no disciplinary sanction is warranted, the complainant may appeal this decision in accordance with s. UWS 17.13. Section 9. UWS 17.11 (4)(a)2. and 4. are amended to read:
2. A description of all information available to the university regarding the alleged misconduct. Such information shall be available to the student complainant and the respondent, except as may be precluded by applicable state or federal law.
4. Notice of the student respondent’s right to a hearing.
Section 10. UWS 17.11 (4)(b) is amended to read:
(b) The written report shall be delivered simultaneously to the student respondent and complainant, excluding any information that may be precluded by applicable state or federal law.
Section 11. UWS 17.11 (4)(c)(intro) is amended to read:
(c) A student respondent who receives a written report under this section has the right to a hearing under s. UWS 17.12 to contest the determination that nonacademic misconduct occurred, the choice of disciplinary sanctions, or both. Section 12. UWS 17.11 (4)(c)1 and 2 is amended to read:
1. Where the disciplinary sanction sought is one of those listed in s. UWS 17.10 (1) (a) to (g), and if the student respondent desires a hearing, the student respondent shall file a written request with the student affairs officer within 10 days of the date the written report is delivered to the respondent. If the student respondent does not request a hearing within this period, the determination of nonacademic misconduct shall be regarded as final, and the disciplinary sanction sought shall be imposed. 2. Where the disciplinary sanction sought is one of those listed in s. UWS 17.10 (1) (h) to (j), the investigating officer shall forward a copy of the written report under par. (b) to the student affairs officer. The student affairs officer shall, upon receipt of the written report, proceed under s. UWS 17.12 to schedule a hearing on the matter. A hearing shall be conducted unless the student respondent waives, in writing, the right to such a hearing. Section 13. UWS 17.12 (1), (2), and (3) are amended to read:
(1) A student respondent who requests a hearing, or for whom a hearing is scheduled under s. UWS 17.11 (4) (c) 2., shall have the right to decide whether the matter will be heard by a hearing examiner or a hearing committee. In cases of sexual assault, dating violence, domestic violence, stalking or sexual harassment the university shall have the right to decide whether the matter will be heard by a hearing examiner or a hearing committee. (2) If a student respondent requests a hearing under s. UWS 17.11 (4) (c) 1., or a hearing is required to be scheduled under s. UWS 17.11 (4) (c) 2., the student affairs officer shall take the necessary steps to convene the hearing and shall schedule it within 15 days of receipt of the request or written report. The hearing shall be conducted within 45 days of receipt of the request or written report, unless a different time period is mutually agreed upon by the student respondent and investigating officer, or is ordered or permitted by the hearing examiner or committee. (3) No less than 5 days in advance of the hearing, the hearing examiner or committee shall obtain from the investigating officer, in writing, a full explanation of the facts upon which the determination of misconduct was based, and shall provide the student respondent and the complainant with access to or copies of the investigating officer's explanation, together with any other materials provided to the hearing examiner or committee by the investigating officer, including any additional available information of the type described in s. UWS 17.11 (4) (a) 2.
Section 14. UWS 17.12 (4)(b) is amended to read:
(b) The student respondent shall have the right to question adverse witnesses, the right to present information and witnesses, the right to be heard on his or her own behalf, and the right to be accompanied by an advisor of the student respondent’s choice. The advisor may be a lawyer. In cases where the recommended disciplinary sanction is identified in s. UWS 17.10 (1) (a) to (h), the advisor may counsel the student respondent but may not directly question adverse witnesses, present information or witnesses, or speak on behalf of the student respondent except at the discretion of the hearing examiner or committee. In cases where the recommended disciplinary sanction is identified in s. UWS 17.10 (1) (i) or (j), or where the student respondent has been charged with a crime in connection with the same conduct for which the disciplinary sanction is sought, the advisor may question adverse witnesses, present information and witnesses, and speak on behalf of the student respondent. In accordance with the educational purposes of the hearing, the student respondent is expected to respond on his or her own behalf to questions asked of him or her during the hearing. The complainant shall have all the rights provided to the respondent in this subsection.
Section 15. UWS 17.12(4)(c)3. is amended to read:
3. May take reasonable steps to maintain order, and to adopt procedures for the questioning of a witness appropriate to the circumstances of that witness's testimony, provided, however, whatever procedure is adopted, the student is complainant and respondent are allowed to effectively question the witness.
Section 16. UWS 17.12 (4)(d) is amended to read:
(d) The hearing examiner or committee shall make a record of the hearing. The record shall include a verbatim record of the testimony, which may be a sound recording, and a file of the exhibits offered at the hearing. The respondent and the complainant may access the record, except as may be precluded by applicable state or federal law.
Section 17. UWS 17.12 (4)(f)3. is amended to read:
3. A preponderance of the evidence, regardless of the sanction to be imposed, in all cases of sexual harassment and, sexual assault, dating violence, domestic violence or stalking.
Section 18. UWS 17.12(4)(h), (i), (j), and (k) are amended to read:
