Chapter UWS 11

UWS 11.12 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21; correction made under s. 35.17, Stats., Register May 2021 No. 785.

subch. III of ch. UWS 11 Subchapter III — Procedures for Academic Staff Dismissal and Discipline in Title IX Cases

UWS 11.13 UWS 11.13 Subchapter III definitions. In this subchapter:

UWS 11.13(1) (1) “Complainant” means any individual who is alleged to be the subject of Title IX misconduct, as defined in this section.

UWS 11.13(2) (2) “Education program or activity” means, for purposes of Title IX misconduct 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.

UWS 11.13(3) (3) “Formal Title IX complaint” means, for the purposes of Title IX misconduct 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 Title IX 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, by electronic mail, or any other method designated by the university. A formal Title IX complaint shall include a physical or digital signature of the complainant or the Title IX Coordinator.

UWS 11.13(4) (4) “Respondent” means an individual who has been reported to be the perpetrator of Title IX misconduct as defined in this section.

UWS 11.13(5) (5) “Sexual harassment” means conduct on the basis of sex that satisfies any of the following:

UWS 11.13(5)(a) (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.

UWS 11.13(5)(b) (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 the legal “reasonable person” standard, the conduct is so severe, pervasive, and objectionably offensive that it effectively denies the person equal access to the institution’s education program or activity.

UWS 11.13(6) (6) “Title IX misconduct” means sexual assault, stalking, dating violence, or domestic violence as defined in this chapter and sexual harassment as defined in sub. (5).

UWS 11.13 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (intro.) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.14 UWS 11.14 Dismissal for cause or lesser discipline for Title IX misconduct.

UWS 11.14(1) (1) An academic staff member may be dismissed for cause, or subject to lesser discipline, for Title IX misconduct as the term is defined in s. UWS 11.13.

UWS 11.14(2) (2) Title IX misconduct allegations against academic staff shall follow the disciplinary procedure in ss. UWS 11.13 to 11.26. An academic staff member may be dismissed only for just cause and may otherwise be disciplined only after due notice and hearing.

UWS 11.14(3) (3) The board’s policy is that members of the academic staff are entitled to enjoy and exercise all rights of United States citizens and to perform their duties in accordance with appropriate professional codes of ethics. This policy shall be observed in determining whether or not just cause for dismissal, or grounds for other discipline, exists. The burden of proof of the existence of just cause for a dismissal, or grounds for other discipline, is on the administration.

UWS 11.14(4) (4) The academic staff member is presumed to be not responsible for the alleged Title IX misconduct until a final decision regarding responsibility is made at the conclusion of the disciplinary process.

UWS 11.14 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.15 UWS 11.15 Application of Title IX misconduct disciplinary procedure. This disciplinary procedure for Title IX misconduct will be used only when all of the following requirements are met:

UWS 11.15(1) (1) There is a formal Title IX complaint alleging Title IX misconduct on the basis of sex.

UWS 11.15(2) (2) The conduct occurred in the United States.

UWS 11.15(3) (3) The conduct occurred within the university’s education programs or activities.

UWS 11.15(4) (4) The complainant must be participating in or attempting to participate in the education program or activity of the university at the time of filing the formal Title IX complaint.

UWS 11.15(5) (5) The complainant or Title IX Coordinator have submitted a written formal Title IX complaint.

UWS 11.15 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.16 UWS 11.16 Dismissal of formal Title IX complaint and related appeal.

UWS 11.16(1) (1) The university shall dismiss formal Title IX complaints consisting of allegations that meet any of the following conditions:

UWS 11.16(1)(a) (a) The alleged conduct would not constitute Title IX misconduct if proved.

UWS 11.16(1)(b) (b) The alleged conduct did not occur in a university education program or activity.

UWS 11.16(1)(c) (c) The alleged conduct did not involve actions against someone physically located in the United States.

UWS 11.16(2) (2) The university may dismiss formal Title IX complaints under any of the following conditions:

UWS 11.16(2)(a) (a) The complainant formally requests in writing to withdraw the formal Title IX complaint.

UWS 11.16(2)(b) (b) The academic staff member is no longer employed by the university.

UWS 11.16(2)(c) (c) Specific circumstances prevent the university from gathering evidence sufficient to reach a determination on the allegations contained in the formal Title IX complaint.

UWS 11.16(3) (3) The university generally shall decide whether to dismiss a formal Title IX complaint within 30 days of receipt of the formal complaint, but the university may extend that timeline as necessary. If a formal complaint is dismissed, the university shall provide notice of the dismissal and reasons therefore to the academic staff member and complainant in writing.

UWS 11.16(4) (4) Within 20 days of receipt of the notice of dismissal, the complainant or academic staff member may appeal the dismissal by filing a written appeal with the chancellor. The complainant or academic staff member may appeal on any of the following bases:

UWS 11.16(4)(a) (a) Procedural irregularity that affected the outcome of the matter.

UWS 11.16(4)(b) (b) New evidence that was not reasonably available at the time of the dismissal that could affect the outcome of the matter.

UWS 11.16(4)(c) (c) The university employee making the dismissal decision had a conflict of interest or bias for the academic staff member or against the complainant, or against complainants generally, that affected the dismissal decision.

UWS 11.16(5) (5) The chancellor shall provide the academic staff member and complainant the opportunity to provide a written statement supporting or challenging the dismissal. The chancellor shall simultaneously issue a decision to the complainant and the academic staff member within 30 days of receipt of a written appeal. The chancellor’s decision on the appeal of a dismissal shall be final.

UWS 11.16(6) (6) The dismissal of a formal Title IX complaint does not preclude the university from otherwise pursuing discipline against the academic staff member under other administrative rules or university policies.

UWS 11.16 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.17 UWS 11.17 Investigation of Title IX misconduct allegations.

UWS 11.17(1) (1) Unless the university dismisses a formal complaint, the university shall appoint an investigator to conduct an investigation of the allegations in the formal complaint.

UWS 11.17(2) (2) The investigator shall provide the academic staff member and the complainant with a notice of investigation. The notice shall include all of the following:

UWS 11.17(2)(a) (a) The grievance process, including informal resolution options.

UWS 11.17(2)(b) (b) The allegations of Title IX misconduct with sufficient detail for the academic staff member to prepare a response to the allegations, including the identity of the complainant as well as the date and location of the incident if available.

UWS 11.17(2)(c) (c) A statement affirming the academic staff member is presumed not responsible for the alleged violation until the disciplinary process finds otherwise.

UWS 11.17(2)(d) (d) The academic staff member and complainant have the right to an advisor of their choice.

UWS 11.17(2)(e) (e) The academic staff member and complainant have the right to inspect and review the evidence.

UWS 11.17(2)(f) (f) Information about any code of conduct rules which prohibit the academic staff member or the complainant from knowingly making false statements or submitting false information during the disciplinary process.

UWS 11.17(3) (3) The parties shall receive an amended notice of investigation any time additional charges are added during the course of an investigation. Formal Title IX complaints involving more than one complainant or respondent may be consolidated if they arise out of the same facts or circumstances.

UWS 11.17(4) (4) The university’s investigator shall do all of the following:

UWS 11.17(4)(a) (a) Provide both the academic staff member and the complainant an equal opportunity to provide witnesses, including fact and expert witnesses, who may be interviewed by the investigators and other inculpatory and exculpatory evidence.

UWS 11.17(4)(b) (b) Not restrict the ability of either the academic staff member or complainant to discuss the allegations under investigation or to gather and present relevant evidence.

UWS 11.17(4)(c) (c) Provide the academic staff member and complainant the same opportunity to be accompanied by an advisor of their choice during meetings relating to the investigation but may limit the participation by the advisor so long as those limits are applied equally.

UWS 11.17(4)(d) (d) Provide both the academic staff member and the complainant an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including evidence upon which the university does not intend to rely in reaching a determination regarding responsibility, and inculpatory or exculpatory evidence whether obtained from an academic staff member, complainant, or other source, so that the academic staff member and complainant can meaningfully respond to the evidence prior to conclusion of the investigation.

UWS 11.17(5) (5) As part of its investigation and disciplinary process, the university may not access, consider, disclose, or otherwise use an academic staff member’s or complainant’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the academic staff member or complainant, unless the university obtains the academic staff member’s or complainant’s voluntary, written consent to do so in relation to the investigation and disciplinary process.

UWS 11.17(6) (6) The university’s investigator generally shall complete the investigation and issue a final investigative report within 90 days of the investigator’s appointment. However, the investigator may extend the investigation’s time frame where circumstances warrant.

UWS 11.17 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (2) (b), (4) (c) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.18 UWS 11.18 Review of evidence.

UWS 11.18(1) (1) Prior to completion of the final investigative report, the investigator shall send to the academic staff member and complainant and their respective advisors, if any, the evidence gathered during the investigation for inspection and review by the academic staff member and the complainant. The evidence may be provided in an electronic format or a hard copy. The evidence provided includes evidence upon which the university does not intend to rely in reaching a determination regarding responsibility, and inculpatory or exculpatory evidence, whether obtained from the academic staff member, complainant or other source to permit the academic staff member and complainant to meaningfully respond to the evidence prior to conclusion of the investigation.

UWS 11.18(2) (2) The academic staff member and the complainant shall have at least 10 days to submit a written response to the evidence. The investigator shall consider any written responses prior to completion of the final investigative report.

UWS 11.18 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.19 UWS 11.19 Final investigative report. The investigator shall create a final investigative report that fairly summarizes relevant evidence and send the report to the academic staff member, the complainant, and their advisors, if any, for their review and response at least 10 days prior to a hearing. The written report shall be delivered simultaneously to the academic staff member and complainant at least 10 days prior to a hearing. The university shall, upon receipt of the final investigative report, proceed to schedule a live hearing on the matter. A hearing shall be conducted unless the academic staff member and the complainant both waive, in writing, the right to such a hearing.

UWS 11.19 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.20 UWS 11.20 Standing academic staff committee and hearing examiner.

UWS 11.20(1) (1) The chancellor of each university, in consultation with academic staff representatives, shall adopt policies providing for the designation of a Title IX misconduct hearing examiner. The chancellor shall select hearing examiners pursuant to these policies to hear academic staff dismissal and discipline cases. Additionally, the academic staff of each university shall provide a standing hearing committee charged with hearing academic staff dismissal and discipline cases. The chancellor shall appoint the presiding member of the hearing committee, who may be a hearing examiner. The academic staff member shall have the right to decide whether a hearing examiner or a hearing committee will hear the matter.

UWS 11.20 Note Note: The last sentence of sub. (1) should read “the university”, not “the academic staff member.” The intent was for the university to make this decision. This will be corrected in future rulemaking.

UWS 11.20(2) (2) The hearing committee or the hearing examiner shall conduct the hearing, make a verbatim record of the hearing, and transmit such record along with factual findings and decision to the chancellor. The hearing shall be held no later than 45 days after completion of the final investigative report except that this time limit may be extended by the hearing committee or the hearing examiner.

UWS 11.20 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.21 UWS 11.21 Adequate due process.

UWS 11.21(1) (1) A fair hearing for an academic staff member against whom dismissal or other discipline is sought shall include all of the following:

UWS 11.21(1)(a) (a) Service of written notice of a live hearing on the allegations in the formal complaint at least 10 days prior to the hearing.

UWS 11.21(1)(b) (b) A right to the names of witnesses and of access to documentary and other evidence which serve as the basis for seeking dismissal or other discipline.

UWS 11.21(1)(c) (c) A right for the complainant and academic staff member to be heard on their own behalf.

UWS 11.21(1)(d) (d) A right to an advisor, counsel, or other representatives, and to offer witnesses. The academic staff member’s or complainant’s advisor or counsel may ask all witnesses relevant questions and follow-up questions, including those challenging credibility. Credibility determinations, however, may not be made based on a person’s status as a complainant, respondent, or witness. If the academic staff member does not have an advisor, the university shall provide the academic staff member, without charge, an advisor of the university’s choice to conduct cross-examination on behalf of the academic staff member. The advisor may be an attorney.

UWS 11.21(1)(e) (e) A right to confront and cross-examine adverse witnesses. The academic staff member’s or complainant’s advisor shall conduct cross examination directly, orally, and in real time. The academic staff member and the complainant may not personally conduct cross examination. If the academic staff member, the complainant, or a witness does not submit to cross-examination at the hearing, the hearing committee or the hearing examiner may not rely on any statement of the academic staff member, complainant, or witness in reaching its findings and recommendations. However, the hearing committee or hearing examiner may not draw a negative inference in reaching its findings and recommendations based solely on the absence of an academic staff member, complainant, or witness from the hearing or refusal to answer cross-examination or other questions.

UWS 11.21(1)(f) (f) A verbatim record of all hearings, which might be a sound recording, made available at no cost for inspection and review.

UWS 11.21(1)(g) (g) Written findings of fact supporting the decision based on the hearing record. The written findings of fact and decision shall include all of the following:

UWS 11.21(1)(g)1. 1. Identification of the allegations potentially constituting Title IX misconduct.

UWS 11.21(1)(g)2. 2. A description of the procedural steps taken from the receipt of the formal complaint through the hearing committee’s or hearing examiner’s decision, including any notifications to the academic staff member and the complainant, interviews with the academic staff member, the complainant, and witnesses, site visits, methods used to gather evidence, and hearings held.

UWS 11.21(1)(g)3. 3. Conclusions regarding the application of the university’s conduct rules and policies to the facts including the following: a determination regarding responsibility for each allegation and the rationale behind each decision, any disciplinary sanction recommended to be imposed, any remedies recommended to restore or preserve equal access to the university’s educational program or activity, and the university’s procedures and permissible bases for complainant and academic staff member to appeal.

UWS 11.21(1)(h) (h) Admissibility of evidence is governed by s. 227.45 (1) to (4), Stats. Only relevant questions may be asked of the academic staff member, the complainant, and any witnesses. The hearing committee or hearing examiner shall determine whether a question is relevant and explain the decision to exclude a question as not relevant. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions or evidence are offered to prove that someone other than the academic staff member committed the conduct alleged by the complainant, or unless the questions or evidence concern specific incidents of the complainant’s prior sexual behavior with the academic staff member and are offered to prove consent.

UWS 11.21(1)(i) (i) Upon the academic staff member’s request, the university shall provide for the hearing to occur with academic staff member and complainant located in separate rooms with technology enabling the hearing committee or hearing examiner, the academic staff member, and the complainant to simultaneously see and hear witnesses answering questions.

UWS 11.21(2) (2) The complainant shall have all the rights provided to the academic staff member in sub. (1) (a) to (i).

UWS 11.21 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (1) (h) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.22 UWS 11.22 Procedural guarantees.

UWS 11.22(1) (1) Any hearing held shall comply with the requirements set forth in UWS 11.21. All of the following requirements shall also be observed: