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 rules apply 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 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).
