s. 36.11 (1)(a), Stats.: “The board may promulgate rules under ch. 227 to protect the lives, health and safety of persons on property under its jurisdiction and to protect such property and to prevent obstruction of the functions of the system.” Related statute or rule: N/A
Plain language analysis:
Title IX Sexual Misconduct and Non-Title IX Sexual Misconduct
The current rule treats all allegations of sexual misconduct the same. The new federal regulations narrow the scope of conduct to which Title IX protections apply. However, the federal regulations specify that schools are not prohibited from addressing a broader scope of conduct under institutional codes of conduct. Under the new rule, allegations of sexual misconduct that do not fall within the scope of Title IX will continue to be addressed using student and employee conduct codes.
Definitions
The current rule defines sexual misconduct, such as sexual harassment and sexual assault, under the corresponding statutory definitions in the Wisconsin Statutes. The new federal regulations require adoption of definitions for sexual assault, dating violence, domestic violence, and stalking from the federal Clery and Violence Against Women Acts. Additionally, the new federal regulations define sexual harassment for Title IX purposes to include quid pro quo and “unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectionably offensive.”
The current rule allows University of Wisconsin System institutions to address allegations of sexual misconduct when the conduct occurs on university property, at university-sponsored events, or the conduct affects a substantial university interest. The new federal regulations narrow that definition to the following elements: (1) the school has actual knowledge of sexual harassment; (2) that occurred within the school’s education program or activity; (3) against a person in the United States. The regulations go on to define “education program or activity” to include situations over which the school exercised substantial control as well as buildings owned or controlled by student organizations officially recognized by a university, such as many fraternity and sorority houses. The new rule specifies the procedures University of Wisconsin System institutions should use in addressing sexual misconduct that meets the new definition and scope of the new federal regulations, as well as the procedures to be used in addressing sexual misconduct that falls outside of the scope of the regulations.
The current rule contains no definition for “sexual exploitation.” The new rule adds a definition of “sexual exploitation” to the list of sexual misconduct that University of Wisconsin System institutions address.
Title IX Sexual Misconduct Procedures
Notice
The current rule mentions several instances in which students and employees involved in an investigation of sexual misconduct must receive notice. The new federal regulations require notice to parties of formal Title IX complaints in more instances and in greater detail than the current rule provides. The new rule will update notice requirements to comply with the new federal regulations.
Mandatory Dismissal and Discretionary Dismissal
The current rule states that University of Wisconsin System institutions may or must dismiss complaints of sexual misconduct under certain circumstances. The new federal regulations define certain instances in which universities must or may dismiss complaints of sexual misconduct. For example, universities must dismiss allegations that do not meet the definitions of sexual misconduct under Title IX and may dismiss allegations of a complainant wishes to withdraw the complaint. A university may still address these dismissed complaints under other code of conduct provisions or state law. The new regulations also grant the parties the right to appeal the university’s dismissal of allegations. The new rule incorporates changes to comply with these requirements under the federal regulations.
Investigation
Under the current rule, University of Wisconsin System institutions investigate allegations of sexual misconduct through formal investigations, the investigator provides the opportunity for both parties to meet with the investigator to discuss the allegations, the investigator recommends sanctions against the respondent, and a governing body within the university confirms or amends these sanctions, which it may do without a hearing under certain circumstances. Under the federal regulations, universities must conduct investigation of formal Title IX complaints via an assigned investigator and must allow the parties an opportunity to present witnesses and evidence as well as review the evidence provided. Investigators must not make official findings of responsibility but may make recommended findings. The new rules incorporate changes to comply with these requirements under the federal regulations.
Hearing
The current rule allows University of Wisconsin System institutions to hold hearings related to allegations of sexual misconduct, but the rule does not always require them. The federal regulations require universities conduct live hearings with cross-examination conducted directly, orally, and in real time for all Title IX cases. At a live hearing, the institution must provide, without fee or charge, an advisor of the school’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party. The parties’ advisors must perform cross-examination. A hearing officer must preside over the hearing and determine the relevance of each question and explain any decision to exclude a question. The new rule incorporates changes to comply with these requirements under the federal regulations.
Summary of, and comparison 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." The U.S. Department of Education has issued guidance through Dear Colleague Letters over the years which established the federal agency's expectations for institutions of higher education that receive federal funding. The new federal regulations are the first to interpret this law with respect to addressing allegations of sexual misconduct and override any guidance provided in the previous Dear Colleague Letters. Please see the Plain Language Analysis for further information related to the specific provisions under the new federal regulations.
Comparison with rules in adjacent states:
The new federal regulations require all universities that receive federal funding to comply with the regulations or risk losing the federal funding. All universities that receive federal funding are required to revise policies and procedures to comply with federal regulations.
Summary of factual data and analytical methodologies:
N/A
Analysis and supporting documents used to determine effect on small business:
N/A
Fiscal Estimate:
The new rule requires University of Wisconsin System institutions to hold live hearings in response to formal Title IX complaints and to provide parties with advisors, free of charge or fee, for the purposes of cross-examination during these hearings. We anticipate potential costs associated with the requirement to hold hearings and provide advisors.
Effect on small business:
The new rule will not have an economic impact on small businesses. The new rule applies specifically to University of Wisconsin System institutions only.
Agency contact person:
Jess Lathrop
Executive Director and Corporate Secretary
Board of Regents of University of Wisconsin System
1860 Van Hise Hall, 1220 Linden Drive, Madison, Wisconsin 53706;
Telephone 608-262-2326;
Public Comments:
The Board of Regents held a public hearing on July 16, 2020 preceded by a public comment period related to the scope statement. The Board of Regents also held a public comment period on the drafts of the proposed rule, which concluded on July 31, 2020. During the comment periods, comments could be submitted to the agency in any of the following ways: (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 the public hearing; or (4) by mail to Jess Lathrop, Executive Director, Office of the Board of Regents, 1860 Van Hise Hall, 1220 Linden Drive, Madison, Wisconsin. The Board of Regents intends to hold a public hearing on the concurrent emergency and permanent rules at a future date and time to be determined.
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TEXT OF RULE
Section 1. UWS 4.01(1) is amended to read:
UWS 4.01 Dismissal for cause.
(1) Any faculty member having tenure may be dismissed only by the board and only for just cause and only after due notice and hearing. Any faculty member having a probationary appointment may be dismissed prior to the end his/her the faculty member’s term of appointment only by the board and only for just cause and only after due notice and hearing. A decision not to renew a probationary appointment or not to grant tenure does not constitute a dismissal.
Section 2. UWS 4.01(3) is created to read:
(3) Faculty dismissal for cause and lesser discipline based on allegations of Title IX misconduct, as defined in s. UWS 4.12, shall be governed by ss. UWS 4.11 to UWS 4.24. Sections UWS 4.01 to UWS 4.10 may not apply to faculty dismissal based on Title IX misconduct. Section 3. UWS 4.015(intro.), (2), (5), (6), (9), (10), and (11) repealed and recreated to read:
UWS 4.015 Definitions. (intro.) The following terms shall have the meaning given below and shall apply to ss. UWS 4.01 to UWS 4.10:
