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: (2) “Complainant" means any individual who is alleged to be the subject of sexual misconduct, as defined in s. UWS 4.12. (5) “Dating violence" means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant; and where the existence of such a relationship shall be determined based on a consideration of the following factors: the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
(6) “Domestic violence" means felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the complainant, by a person with whom the complainant shares a child in common, by a person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner, by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of Wisconsin, or by any other person against an adult or youth complainant who is protected from that person’s acts under the domestic or family violence laws of Wisconsin.
(9) “Sexual harassment" means conduct on the basis of sex that satisfies one or more of the following:
(a)
An employee of the institution conditions the provision of an aid, benefit, or service of the institution directly or indirectly on an individual’s participation in unwelcome sexual conduct. (b)
Unwelcome conduct of a sexual nature directed towards a student, an employee, or a person participating in a program or activity of the university that, when using any of the following legal “reasonable person” standards: 1.
The conduct is so severe, pervasive, and objectively offensive that it effectively denies the person equal access to the institution’s education program or activity; or 2.
The conduct is so severe, pervasive, or objectively offensive that it has the purpose or effect of unreasonably interfering with an individual’s academic or work performance or participation in an institution’s education program or activity, or creates an intimidating, hostile, or offensive academic, working, or program or activity related environment.(10) “Sexual assault" means an offense that meets any of the following definitions found in 20 U.S.C. 1092(f)(6)(A)(v), 34 CFR 668.46(a): (a)
“Rape” means the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of the complainant, without the consent of the complainant. (b)
“Fondling” means the touching of the private body parts of the complainant for the purpose of sexual gratification, without the consent of the complainant, including instances where the complainant is incapable of giving consent because of their age or because of their temporary or permanent mental incapacity. (c)
“Incest” means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law as provided in s. 944.06, Stats. (d)
“Statutory Rape” means sexual intercourse with a complainant who is under the statutory age of consent as provided in s. 944.06, Stats.
(11) “Stalking" means engaging in a course of conduct directed at the complainant that would cause a reasonable person to fear for their safety or the safety of others; or suffer substantial emotional distress.
Section 4. UWS 4.015(3m) and (6m) and (8m) are created to read:
(3m) “Consent” means words or overt actions by a person who is competent to give informed consent, indicating a freely given agreement to engage in sexual activity or other activity referenced in this section and s. UWS 4.12. A person is unable to give consent if the person is incapacitated because of drugs, alcohol, physical or intellectual disability, or unconsciousness. (6m) “Incapacitation” means the state of being unable to physically or mentally make informed rational judgments and effectively communicate, and may include unconsciousness, sleep, or blackouts, and may result from the use of alcohol or other drugs. Where alcohol or other drugs are involved, evaluation of incapacitation requires an assessment of how the consumption of alcohol or drugs affects a person’s decision-making ability; awareness of consequences; ability to make informed, rational judgments; capacity to appreciate the nature and quality of the act; or level of consciousness. The assessment is based on objectively and reasonably apparent indications of incapacitation when viewed from the perspective of a sober, reasonable person.
