Public Comments:
The Board of Regents will hold a public hearing on November 30, 2020 preceded by a public comment period related to the proposed rule. 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 compliance@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. ------------------------------------------------------------------------------------------------------------
TEXT OF RULE
Section 1. Subchapter I – General of Chapter UWS 4 [precedes UWS 4.01] is created to read: UWS 4
SUBCHAPTER I
GENERAL
Section 2. 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 3. 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 4.11, shall be governed by ss. UWS 4.11 to UWS 4.24. Section UWS 4.01(1) and (2) and ss. UWS 4.02 to 4.10 may not apply to faculty dismissal based on Title IX misconduct. Section 4. UWS 4.015(intro.), (2), (3), (4), (9), and (10) repealed and recreated to read:
UWS 4.015 Definitions. (intro.) In this chapter:
(2) “Complaint" means an allegation against a faculty member reported to an appropriate university official.
(3) “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 the definitions of sexual assault and sexual exploitation in this section. A person is unable to give consent if the person is incapacitated because of drugs, alcohol, physical or intellectual disability, or unconsciousness.
(4) “Consult" or “consulting" means thoroughly reviewing and discussing the relevant facts and discretionary issues.
(9) “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.
(10) “Sexual Exploitation” means when an individual attempts, takes or threatens to take, nonconsensual sexual advantage of another person. Examples include:
(a) Engaging in the following conduct without the knowledge and consent of all participants:
1. Observing, recording, or photographing private body parts or sexual activity of the complainant.
2. Allowing another person to observe, record, or photograph sexual activity or private body parts of the complainant,
3. Otherwise distributing recordings, photographs, or other images of the sexual activity or private body parts of the complainant.
(b) Masturbating, touching one’s genitals, or exposing one’s genitals in the complainant’s presence without the consent of the complainant, or inducing the complainant to do the same.
(c) Dishonesty or deception regarding the use of contraceptives or condoms during the course of sexual activity.
(d) Inducing incapacitation through deception for the purpose of making the complainant vulnerable to non-consensual sexual activity.
(e) Coercing the complainant to engage in sexual activity for money or anything of value.
(f) Threatening distribution of any of the following, to coerce someone into sexual activity or providing money or anything of value:
1. Photos, videos, or recordings depicting private body parts or sexual activity of the complainant.
2. Other information of a sexual nature involving the complainant, including sexual history or sexual orientation.
Section 5. UWS 4.015(5), (6), and (11) amended to read:
(5) “Dating violence" means violence committed by an employee against another person with whom they are in a “dating relationship” as defined in s. 813.12 (1) (ag), Stats. 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, the frequency of interaction between the persons involved in the relationship. (6) “Domestic violence" means conduct defined as “domestic abuse” in ss. 813.12 (1) (am) and 968.075, Stats. 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 as per ss. 813.12(1)(am) and 968.075, Stats. (11) “Stalking" means conduct defined in s. 940.32, Stats. 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 6. UWS 4.015(6m) created to read:
(6m) “Incapacitation” means the state of being unable to physically and/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 and/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.
Section 7. Subchapter II – Procedures for Faculty Dismissal in Non-Title IX Related Cases of Chapter UWS 4 [precedes UWS 4.016] is created to read: UWS 4
SUBCHAPTER II
PROCEDURES FOR FACULTY DISMISSAL IN NON-TITLE IX RELATED CASES
Section 8. UWS 4.016 is created to read:
UWS 4.016 Subchapter II Definitions. In this subchapter:
(1) “Complainant" means any individual who is alleged to be the subject of sexual harassment, sexual assault, dating violence, domestic violence, stalking, or sexual exploitation as defined in this section.
(2) “Sexual harassment" means conduct on the basis of sex that satisfies any of the following:
(a) Quid Pro Quo
1. 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; or
2. An employee of the institution either, explicitly or implicitly, conditions the provision of an academic, professional, or employment-related opportunity, aid, benefit, or service on an individual’s participation in unwelcome sexual conduct
(b) Hostile Environment
1. 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 the legal “reasonable person” standard 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. Unwelcome conduct of a sexual nature directed towards an individual that, when using the legal “reasonable person” standard is so severe or pervasive and objectively offensive that it has the purpose or effect of unreasonably interfering with an individual’s academic or work performance or participation in an university sponsored or supported activity.
Section 9. UWS 4.02(1) and (3) is amended to read:
(1) Whenever the chancellor of an institution within the University of Wisconsin system receives a complaint against a faculty member which he or she the chancellor deems substantial and which, if true, might lead to dismissal under s. UWS 4.01, the chancellor, or designee, shall within a reasonable time initiate an investigation and shall, prior to reaching a decision on filing charges, offer to discuss the matter informally with the faculty member. For complaints of sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the chancellor, or designee, shall appoint the Title IX Coordinator, or designee, to initiate an investigation in accordance with applicable policies. The chancellor, or designee, shall also offer to discuss the matter informally with the complainant, and provide information regarding rights under this chapter. Both the faculty member and the complainant shall have the right to be accompanied by an advisor of their choice at any meeting or proceeding that is part of the institutional disciplinary process. A faculty member may be dismissed only after receipt of a written statement of specific charges from the chancellor as the chief administrative officer of the institution and, if a hearing is requested by the faculty member, in accordance with the provisions of this chapter. If the faculty member does not request a hearing, action shall proceed along normal administrative lines but the provisions of ss. UWS 4.02, 4.09, and 4.10 shall still apply. (3) The statement of charges shall be served personally, by electronic means, or by certified mail, return receipt requested. If such service cannot be made within 20 days, service shall be accomplished by first class mail and by publication as if the statement of charges were a summons and the provisions of s. 801.11 (1) (c), Stats., were applicable. Such service by mailing and publication shall be effective as of the first insertion of the notice of statement of charges in the newspaper. If the statement of charges includes sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the statement shall be provided to the complainant upon request, except as may be precluded by applicable state or federal law. Section 10. UWS 4.05(1)(c), (1)(e), and (1)(g) are amended to read:
(c) A right to be heard in his/her the faculty member’s defense;
(e) A right to confront and cross-examine adverse witnesses. If the complaint involves sexual harassment, sexual assault, dating violence, domestic violence, or sexual exploitation, or stalking, the hearing committee may reasonably restrict the faculty member or the complainant from questioning each other;
Section 11. UWS 4.06(1)(am), (1)(d), and (1)(g) are amended to read:
(am) For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the standard of proof shall be a preponderance of the evidence;
(d) The faculty hearing committee may, on motion of either party, and, if the complaint involves sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, on the motion of the complainant, disqualify any one of its members for cause by a majority vote. If one or more of the faculty hearing committee members disqualify themselves or are disqualified, the remaining members may select a number of other members of the faculty equal to the number who have been disqualified to serve, except that alternative methods of replacement may be specified in the rules and procedures adopted by the faculty establishing the standing committee under s. UWS 4.03;
