The statement of scope was approved by the governor on July 7, 2014.
Rule No.
Relating to
Nonacademic student misconduct.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A
2. Detailed Description of the Objective of the Proposed Rule
The Board of Regents of the University of Wisconsin System (“Board") seeks to modify ch.
UWS 17 regarding Student Nonacademic Misconduct to recognize the guidance that the U.S. Department of Education has published in regard to the manner in which higher education institutions should address and respond to sexual misconduct allegations involving a student, including sexual assault. Specifically, the Board seeks to amend ch.
UWS 17 by creating a new section that would provide a process under which such allegations would be handled by University of Wisconsin System institutions.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
The current version of ch.
UWS 17 provides a student disciplinary process under which allegations of a violation of those rules, including allegations of sexual misconduct, is handled. This process has been fair and effective since it was first published in 1996. In 2009, the Chapter was amended through the administrative rule-making process to update the Chapter and modify certain provisions to underscore the educational emphasis of the nonacademic student disciplinary process. The Chapter authorizes each institution of the University of Wisconsin System to adopt consistent policies and procedures.
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 17. 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 Chapter
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.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Wis. Stat. s.
36.35: “The board shall promulgate rules under ch.
227 governing student conduct and procedures for the administration of violations."
5. Estimate the Amount of Time that State Employees Will Spend Developing the Rule and Other Resources Necessary to Develop the Rule
50 hours.
6. List with description of all entities that may be affected by the proposed rule
All 13 four-year University of Wisconsin System institutions, all 13 UW Colleges and the students thereof.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
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.
8 Anticipated Economic Impact of Implementing the Rule (Note if The Rule is Likely to Have a Significant Economic Impact on Small Businesses)
There is no anticipated economic impact of the proposed rule.
Contact Person
Tomas Stafford, General Counsel, 608-262-2995.
University of Wisconsin System
The statement of scope was approved by the governor on July 7, 2014.
Rule No.
Chapters
UWS 4 and
7 (revise).
Relating to
Procedures for dismissal of faculty/dismissal of faculty in special cases.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A
2. Detailed Description of the Objective of the Proposed Rule
The Board of Regents of the University of Wisconsin System (“Board") seeks to modify ch.
UWS 4, Procedures for Dismissal of Faculty, and ch.
UWS 7, Dismissal of Faculty in Special Cases, to recognize published guidance from the U.S. Department of Education. In the guidance, the Department of Education has addressed expectations for higher education institutions to respond to sexual misconduct allegations involving school employees, including allegations of sexual assault.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
The current version of ch.
UWS 4 provides a disciplinary process for pursuing dismissal of faculty for just cause. The current version of ch.
UWS 7 provides a disciplinary process for pursuing dismissal of faculty in special cases of serious criminal misconduct, including sexual assault.
The U.S. Department of Education has issued guidance related to sexual assaults at higher education institutions and has reaffirmed that Title IX protects students from sexual harassment carried out by school employees. Some of the expectations of the U.S. Department of Education may require modifications to the provisions under the current chs. USW 4 and
7 in order for them to be met.
The modifications contemplated by this rulemaking would incorporate into law some of the published expectations of the U.S. Department of Education. In particular, the new provisions would reflect the evidentiary burden of proof and the role of a complainant in the process.
If modifications are not made to chs.
UWS 4 and
7, UW institutions will continue to adhere to the provisions of chs.
UWS 4 and
UWS 7 and the federal guidance, but only to the extent that a conflict does not arise. Further, following both policy guidance and the law may lead to confusion.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Wis. Stat. s.
36.13 (3): “Rules. The board and its several faculties after consultation with appropriate students shall promulgate rules for tenure and probationary appointments, for the review of faculty performance and for the non-retention and dismissal of faculty members. Such rules shall be promulgated under ch.
227."
Wis. Stat. s.
36.13 (5): “Procedural Guarantees. Any person having tenure may be dismissed only for just cause and only after due notice and hearing. Any person having a probationary appointment may be dismissed prior to the end of the person's contract term only for just cause and only after due notice and hearing. The action and decision of the board in such matters shall be final, subject to judicial review under ch.
227. The board and its several faculties shall develop procedures for the notice and hearing which shall be promulgated by rule under ch.
227."
5. Estimate the Amount of Time that State Employees Will Spend Developing the Rule and Other Resources Necessary to Develop the Rule
50 hours
6. List with Description of all Entities that may be Affected by the Proposed Rule
All 13 four-year University of Wisconsin System institutions, all 13 UW Colleges and the University of Wisconsin Extension.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
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.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to Have a Significant Economic Impact on Small Businesses)
There is no anticipated economic impact of the proposed rule.
Contact Person
Tomas Stafford, General Counsel, 608-262-2995
