Chapter UWS 11

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:

UWS 11.22(1)(a) (a) The burden of proof of the existence of just cause to support dismissal, or of grounds to support other discipline, is on the university administration.

UWS 11.22(1)(b) (b) The standard of proof shall be a preponderance of the evidence.

UWS 11.22(1)(c) (c) No academic staff member who participated in the investigation of allegations leading to the filing of a statement of charges, or who participated in the filing of a statement of charges, or who is a material witness, shall be qualified to sit on the hearing committee in that case.

UWS 11.22(1)(d) (d) No university employee or other person who participated in the investigation of allegations leading to the filing of a statement of charges, or who participated in the filing of a statement of charges, or who is a material witness, shall be qualified to serve as the hearing examiner in that case.

UWS 11.22(1)(e) (e) The hearing shall be closed unless the academic staff member requests an open hearing, in which case it shall be open.

UWS 11.22 Note Note: This right was intended to be given to the complainant as well. This will be corrected in future rulemaking.

UWS 11.22 Note Note: See subch. V of ch. 19, Stats., Open Meetings of Governmental Bodies.

UWS 11.22(1)(f) (f) The hearing committee may, on motion of the complainant or the academic staff member, disqualify any one of its members for cause by a majority vote. If one or more of the hearing committee members disqualify themselves or are disqualified, the remaining members may select a number of other members of the academic staff 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 academic staff establishing the standing committee under this rule.

UWS 11.22(1)(g) (g) The hearing committee or the hearing examiner may not be bound by common law or statutory rules of evidence and may admit evidence having reasonable probative value but shall exclude immaterial, irrelevant, or unduly repetitious testimony, and shall give effect to recognized legal privileges unless the person holding the privilege has waived it. The hearing committee or the hearing examiner shall follow the evidentiary rules in s. UWS 11.21 (1) (h).

UWS 11.22(1)(h) (h) If the hearing committee requests, the chancellor shall provide legal counsel after consulting with the hearing committee concerning its wishes in this regard. The function of legal counsel shall be to advise the hearing committee, consult with them on legal matters, and such other responsibilities as shall be determined by the hearing committee within the provisions of the rules and procedures adopted by the academic staff of the institution in establishing the standing academic staff committee under this policy.

UWS 11.22(1)(i) (i) Nothing in this section shall prevent the settlement of cases by mutual agreement between the university administration, the complainant, and the academic staff member.

UWS 11.22(1)(j) (j) Delay or adjournment of the hearing for good cause may be granted. Good cause includes any of the following:

UWS 11.22(1)(j)1. 1. The need to investigate evidence as to which a valid claim of surprise is made.

UWS 11.22(1)(j)2. 2. To ensure the presence of the academic staff member or the complainant, an advisor, or a witness.

UWS 11.22(1)(j)3. 3. To provide language assistance or accommodation of disabilities.

UWS 11.22(1)(j)4. 4. To accommodate concurrent law enforcement activity.