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 email@example.com; (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.
TEXT OF RULE
Section 1. UWS 17.02(1), (2m), (10), 11, 12, (13m), and (15) are amended to read:
(1) “Chief administrative officer" means the chancellor of an institution or dean of a campus or their designees.
(2m) “Complainant" means any individual who is reported to have been subjected to sexual harassment, sexual assault, dating violence, domestic violence, or stalking alleged to be the subject of sexual misconduct, as defined in s. UWS 17.09 UWS 17.16.
(10) “Institution" means any university, or an organizational equivalent designated by the board., and the University of Wisconsin colleges.
(11) “Investigating officer" means an individual, or his or her their designee, appointed by the chief administrative officer of each institution, to conduct investigations of nonacademic misconduct under this chapter.
(12) “Nonacademic misconduct hearing committee" or “committee" means the committee appointed pursuant to s. UWS 17.07 to conduct hearings under s. UWS 17.12 or UWS 17.18. (13m) “Respondent," for conduct defined in s. UWS 17.09 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 and has been reported to have violated s. UWS 17.09 or UWS 17.16.
(15) “Student affairs officer" means the dean of students or student affairs officer or other personnel designated by the chief administrative officer to coordinate disciplinary hearings and carry out duties described in this chapter.
Section 2. UWS 17.02(2g) and (7m) and (8m) and (9m) and (12m) are created to read:
(2g) “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 conduct defined in s. UWS 17.16. A person is unable to give consent if the person is incapacitated because of drugs, alcohol, physical or intellectual disability, or unconsciousness.
(7m) “Education program or activity” includes, for purposes of a Title IX Complaint only, locations, events, or circumstances over which the university exercised substantial control over both the respondent and the context in which the relevant misconduct occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the university.
(8m) “Formal complaint” is, for the purposes of a Title IX complaint only, a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment, sexual assault, dating violence, domestic violence, or stalking against an academic staff member and requesting that the institution investigate the allegations. At the time of filing of the formal complaint, the complainant must be participating in or attempting to participate in an educational program or activity. A formal complaint may be filed in person, by mail, or electronic mail, or any other method designated by the university. A formal complaint shall include a physical or digital signature of the complainant or the Title IX Coordinator.
(9m) “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.
(12m) “Party” refers to a respondent or complainant involved in a disciplinary procedure under 17.12 or 17.18.
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 ss. UWS 17.11 and UWS 17.17. For allegations involving sexual assault, domestic violence, dating violence, stalking, or sexual harassment sexual misconduct, as defined in s. UWS 17.16, the chief administrative officer shall involve the Title IX Coordinator, or designee shall serve as the investigating officer., in accordance with applicable institutional policies.
Section 4. UWS 17.06(2) is amended to read:
(2) A hearing examiner shall be selected by the chief administrative officer from the faculty and staff of the institution, pursuant to the policies adopted under sub. (1).
Section 5. UWS 17.07(2) is amended to read:
(2) A student nonacademic misconduct hearing committee shall consist of at least three persons, including at least one student, except that no such committee shall be constituted with a majority of members who are students. The presiding officer, who may be the hearing examiner designated pursuant to s. UWS 17.06, shall be appointed by the chief administrative officer. The presiding officer and at least one other member shall constitute a quorum at any hearing held pursuant to due notice.
Section 6. UWS 17.08(1) and (2) is amended to read:
UWS 17.08 Nonacademic misconduct occurring on or outside of university lands.
(1) Misconduct on university lands. Except as provided in s. UWS 17.08 (2), the provisions contained in this chapter shall apply to the student conduct described in ss. UWS 17.09 and UWS 17.16 that occurs on university lands or at university-sponsored events. (2) Misconduct outside of university lands. The provisions contained in this chapter may apply to the student conduct described in ss. UWS 17.09 and UWS 17.16 that occurs outside of university lands only when, in the judgment of the investigating officer, the conduct adversely affects a substantial university interest. In determining whether the conduct adversely affects a substantial university interest, the investigating officer shall consider whether the conduct meets one or more of the following conditions:
(a) The conduct constitutes or would constitute a serious criminal offense, regardless of the existence of any criminal proceedings.
(b) The conduct indicates that the student presented or may present a danger or threat to the health or safety of himself, herself themselves or others.
(c) The conduct demonstrates a pattern of behavior that seriously impairs the university's ability to fulfill its teaching, research, or public service missions.
Section 7. UWS 17.09(intro.) amended to read:
UWS 17.09 Conduct subject to disciplinary action (intro.). In accordance with s. UWS 17.08, the university may discipline a student for engaging in, attempting to engage in, or assisting others to engage in any of the following types of nonacademic misconduct. Conduct defined in s. UWS 17.09 shall use the disciplinary procedure, hearing, appeal, and settlement processes detailed in ss. UWS 17.11 to 17.15. However, at the university’s discretion, conduct defined in s. UWS 17.09, when arising out of the same facts and circumstances as sexual misconduct defined in s. 17.16, may be consolidated with such charges and addressed with the disciplinary procedure, hearing, appeal, and settlement processes detailed in ss. UWS 17.17 to 17.21.
Section 8. UWS 17.09(2) and (3) and (17) and (18) are repealed.
Section 9. UWS 17.09 (4) to (16) are renumbered UWS (2) to (14).
Section 10. UWS 17.09(15) is created to read:
(15) Retaliation. Intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured in ss. UWS 17.17 to 17.21, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under ss. UWS 17.17 to 17.21.
Section 11. UWS 17.10(1) is amended to read:
(1) The disciplinary sanctions that may be imposed for nonacademic misconduct, in accordance with the procedures of ss. UWS 17.11 to 17.13, and ss. 17.17 to 17.19, are any of the following:
Section 12. UWS 17.11 is amended to read:
UWS 17.11 Disciplinary procedure.
(1) Process. The investigating officer may proceed in accordance with this section to impose, subject to hearing and appeal rights, one or more of the disciplinary sanctions listed in s. UWS 17.10 (1) for conduct defined in s. UWS 17.09.
(2) Conference with Respondent. When the investigating officer concludes that proceedings under this section are warranted, the investigating officer shall promptly contact the respondent in person, by telephone, or by electronic mail to offer to discuss the matter, review the investigating officer's basis for believing that the respondent engaged in nonacademic misconduct, and to afford the respondent an opportunity to respond. If the respondent fails to respond to the investigating officer, the investigating officer may proceed to decide on the basis of the available information. A complainant shall have all the rights provided to the respondent in this subsection.
(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.
(4) Process following determination by the investigating officer that nonacademic misconduct occurred.
(a) If, as a result of a discussion under sub. (2) or review of available information, the investigating officer determines that nonacademic misconduct did occur and that one or more of the disciplinary sanctions listed under s. UWS 17.10 (1) should be recommended, the investigating officer shall prepare a written report which shall contain all of the following:
1. A description of the alleged misconduct.
2. A description of all information available to the university regarding the alleged misconduct. Such information shall be available to the complainant and the respondent, except as may be precluded by applicable state or federal law.
3. Specification of the sanction sought.
4. Notice of the respondent's right to a hearing.
5. A copy of this chapter and of the institutional procedures adopted to implement this section.
(b) The written report shall be delivered simultaneously to the respondent and complainant, excluding any information that may be precluded by applicable state or federal law.
(c) A 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.
1. Where the disciplinary sanction sought is one of those listed in s. UWS 17.10 (1) (a) to (g), and if the respondent desires a hearing, the 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 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.