Chapter UWS 4

UWS 4.05(1)(g) (g) Written findings of fact and decision based on the hearing record;

UWS 4.05(1)(h) (h) Admissibility of evidence governed by s. 227.45 (1) to (4), Stats.

UWS 4.05(2) (2) If the complaint involves sexual harassment, sexual assault, dating violence, domestic violence, or stalking, the complainant shall have all the rights provided to the faculty member in sub. (1) (a) to (h), except as may be precluded by applicable state or federal law.

UWS 4.05 History History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; correction in (1) (h) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; correction in (1) (h) made under s. 13.93 (2m) (b) 7., Stats., Register May 2007 No. 617; CR 15-061: am. (1) (d), (e), cr. (2) Register June 2016 No. 726, eff. 7-1-16; correction in (2) under 35.17, Stats., Register June 2016 No. 726; CR 20-059: am. (1) (c), (e) Register May 2021 No. 785, eff. 6-1-21.

UWS 4.06 UWS 4.06 Procedural guarantees.

UWS 4.06(1) (1) Any hearing held shall comply with the requirements set forth in s. UWS 4.05. The following requirements shall also be observed:

UWS 4.06(1)(a) (a) The burden of proof of the existence of just cause is on the administration or its representatives;

UWS 4.06(1)(am) (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;

UWS 4.06(1)(b) (b) No faculty member who participated in the investigation of allegations leading to the filing of a statement of charges, or in the filing of a statement of charges, or who is a material witness shall be qualified to sit on the committee in that case;

UWS 4.06(1)(c) (c) The hearing shall be closed unless the faculty member under charges requests an open hearing, in which case it shall be open (see subch. V of ch. 19, Stats., Open Meetings of Governmental Bodies);

UWS 4.06(1)(d) (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;

UWS 4.06(1)(e) (e) The faculty hearing committee shall 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;

UWS 4.06(1)(f) (f) If the faculty hearing committee requests, the chancellor shall provide legal counsel after consulting with the committee concerning its wishes in this regard. The function of legal counsel shall be to advise the committee, consult with them on legal matters, and such other responsibilities as shall be determined by the committee within the provisions of the rules and procedures adopted by the faculty of the institution in establishing the standing faculty committee under s. UWS 4.03;

UWS 4.06(1)(g) (g) If a proceeding on charges against a faculty member not holding tenure is not concluded before the faculty member’s appointment would expire, the faculty member may elect that such proceeding be carried to a final decision. Unless the faculty member so elects in writing, the proceeding shall be discontinued at the expiration of the appointment;

UWS 4.06(1)(h) (h) If a faculty member whose dismissal is sought has requested a hearing, discontinuance of the proceeding by the institution is deemed a withdrawal of charges and a finding that the charges were without merit;

UWS 4.06(1)(i) (i) Nothing in this section shall prevent the settlement of cases by mutual agreement between the administration and the faculty member, with board approval, at any time prior to a final decision by the board;

UWS 4.06(1)(j) (j) Adjournment shall be granted to enable the parties, including the complainant, to investigate evidence as to which a valid claim of surprise is made.

UWS 4.06 History History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; correction in (1) (c) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2001, No. 544; CR 15-061: cr. (1) (am), am. (1) (d), (i), (j) Register June 2016 No. 726, eff. 7-1-16; CR 20-059: am. (1) (am), (c), (d), (g) Register May 2021 No. 785, eff. 6-1-21.

UWS 4.07 UWS 4.07 Recommendations to the chancellor and the regents.

UWS 4.07(1) (1) The faculty hearing committee shall send to the chancellor and to the faculty member concerned, as soon as practicable after conclusion of the hearing, a verbatim record of the testimony and a copy of its report, findings, and recommendations. The committee may determine that while adequate cause for discipline exists, some sanction less severe than dismissal is more appropriate. Within 20 days after receipt of this material the chancellor shall review it and afford the faculty member an opportunity to discuss it. The chancellor shall prepare a written recommendation within 20 days following the meeting with the faculty member, unless the chancellor’s proposed recommendation differs substantially from that of the committee. If the chancellor’s proposed recommendations differ substantially from those of the faculty hearing committee, the chancellor shall promptly consult the faculty hearing committee and provide the committee with a reasonable opportunity for a written response prior to forwarding the recommendation. If the recommendation is for dismissal, the recommendation shall be submitted through the president of the system to the board. A copy of the faculty hearing committee’s report and recommendations shall be forwarded through the president of the system to the board along with the chancellor’s recommendation. A copy of the chancellor’s recommendation shall also be sent to the faculty member concerned and to the faculty committee. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall have all rights provided to the faculty member in this paragraph, including the right to receive a copy of the chancellor’s recommendation, except as may be precluded by applicable state or federal law.

UWS 4.07(2) (2) Disciplinary action other than dismissal may be taken by the chancellor, after affording the faculty member an opportunity to be heard on the record, except that, upon written request by the faculty member, such action shall be submitted as a recommendation through the president to the board together with a copy of the faculty hearing committee’s report and recommendation. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall have all the rights provided to the faculty member in this paragraph.

UWS 4.07 History History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; CR 15-061: am. Register June 2016 No. 726, eff. 7-1-16; CR 20-059: am. Register May 2021 No. 785, eff. 6-1-21; correction in (title) made under s. 13.92 (4) (b) 2., Stats., Register May 2021 No. 785.

UWS 4.08 UWS 4.08 Board review.

UWS 4.08(1) (1) If the chancellor recommends dismissal, the board shall review the record before the faculty hearing committee and provide an opportunity for filing exceptions to the recommendations of the hearing committee or chancellor, and for oral arguments, unless the board decides to drop the charges against the faculty member without a hearing or the faculty member elects to waive a hearing. This hearing shall be closed unless the faculty member requests an open hearing (see subch. V of ch. 19, Stats., Open Meetings of Governmental Bodies). For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall have the same opportunity for filing exceptions to the recommendations of the hearing committee or chancellor, and for oral arguments, as the faculty member.

UWS 4.08(2) (2) If, after the hearing, the board decides to take action different from the recommendation of the faculty hearing committee and/or the chancellor, then before taking final action the board shall consult with the faculty hearing committee and/or the chancellor, as appropriate.

UWS 4.08(3) (3) If a faculty member whose dismissal is sought does not request a hearing pursuant to s. UWS 4.04 the board shall take appropriate action upon receipt of the statement of charges and the recommendation of the chancellor.

UWS 4.08(4) (4) For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the faculty member and complainant shall be simultaneously notified of the board’s final decision.

UWS 4.08 History History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2001, No. 544; CR 15-061: am. (1), cr. (4) Register June 2016 No. 726, eff. 7-1-16; CR 20-059: am. (1), (4) Register May 2021 No. 785, eff. 6-1-21.

UWS 4.09 UWS 4.09 Suspension from duties. Pending the final decision as to dismissal, the faculty member shall not normally be relieved of duties; but if, after consultation with appropriate faculty committees the chancellor finds that substantial harm to the institution may result if the faculty member is continued in the faculty member’s position, the faculty member may be relieved immediately of the faculty member’s duties, but the faculty member’s pay shall continue until the board makes its decision as to dismissal, unless the chancellor also makes the determinations set forth in s. UWS 7.06 (1) in which case the suspension from duties may be without pay and the procedures set forth in s. UWS 7.06 shall apply.

UWS 4.09 History History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; CR 06-078: am. Register May 2007 No. 617, eff. 7-1-07; CR 20-059: am. Register May 2021 No. 785, eff. 6-1-21.

UWS 4.10 UWS 4.10 Date of dismissal. A decision by the board ordering dismissal shall specify the effective date of the dismissal.

UWS 4.10 History History: Cr. Register, January, 1975, No. 229, eff. 2-1-75.

subch. III of ch. UWS 4 Subchapter III — Procedures for Faculty Dismissal and Discipline in Title IX Cases

UWS 4.11 UWS 4.11 Subchapter III definitions. In this subchapter:

UWS 4.11(1) (1) “Complainant” means any individual who is alleged to be the subject of Title IX misconduct, as defined in this section.

UWS 4.11(2) (2) “Education program or activity” means, for purposes of Title IX misconduct only, locations, events, or circumstances at which the university exercised substantial control over both the faculty member and the context in which the sexual harassment occurred, and also includes any building owned or controlled by a student organization that is officially recognized by the university.

UWS 4.11(3) (3) “Formal Title IX complaint” means, for the purposes of a 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 a faculty member and requesting that the university 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 Title IX complaint may be filed in person, by mail, or 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 4.11(4) (4) “Respondent” means an individual who has been reported to be the perpetrator of Title IX misconduct as defined in this section.

UWS 4.11(5) (5) “Sexual harassment” means conduct on the basis of sex that satisfies one or more of the following:

UWS 4.11(5)(a) (a) An employee of the institution conditions the provisions of an aid, benefit, or service of the institution directly or indirectly on an individual’s participation in unwelcome sexual conduct.

UWS 4.11(5)(b) (b) Unwelcome conduct of a sexual nature directed toward 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 objectively offensive that it effectively denies the person equal access to the institution’s education program or activity.

UWS 4.11(6) (6) “Title IX misconduct” means sexual assault, stalking, dating violence, or domestic violence, as defined in s. UWS 4.015 and sexual harassment, as defined in sub. (5).

UWS 4.11 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21; corrections in (6) made under ss. 13.92 (4) (b) 7. and 35.17, Stats., and correction in (3) made under s. 13.92 (4) (b) 12., Stats., Register May 2021 No. 785.

UWS 4.12 UWS 4.12 Dismissal for cause or lesser discipline for Title IX misconduct.

UWS 4.12(1) (1) The board may dismiss a faculty member for cause, or impose lesser discipline on a faculty member, for Title IX misconduct as defined in s. UWS 4.11.

UWS 4.12(2) (2) Title IX misconduct allegations against faculty shall follow the disciplinary procedure in ss. UWS 4.11 to 4.24. The board may dismiss a faculty member having tenure only for just cause and may otherwise discipline a faculty member having tenure only after due notice and hearing. The board may dismiss a faculty member having a probationary appointment prior to the end of the faculty member’s term of appointment only for just cause and may otherwise discipline the faculty member only after due notice and hearing.

UWS 4.12(3) (3) A faculty member is entitled to enjoy and exercise all the rights and privileges of a United States citizen, and the rights and privileges of academic freedom as they are generally understood in the academic community. These rights and privileges shall be observed in determining whether or not just cause for dismissal, or grounds for other discipline, exists.

UWS 4.12(4) (4) The faculty 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. The burden of proof of the existence of just cause for a dismissal, or of grounds for other discipline, is on the university administration.

UWS 4.12 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 4.13 UWS 4.13 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 4.13(1) (1) There is a formal Title IX complaint alleging Title IX misconduct on the basis of sex.

UWS 4.13(2) (2) The conduct occurred in the United States.

UWS 4.13(3) (3) The conduct occurred within a university’s education program or activity.

UWS 4.13(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 complaint.

UWS 4.13(5) (5) The complainant or Title IX coordinator has submitted a formal Title IX complaint.

UWS 4.13 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 4.14 UWS 4.14 Dismissal of formal Title IX complaint and related appeal.

UWS 4.14(1) (1) The university shall dismiss a formal Title IX complaint consisting of allegations that meet any of the following conditions:

UWS 4.14(1)(a) (a) The alleged conduct would not constitute Title IX misconduct if proved.

UWS 4.14(1)(b) (b) The alleged conduct did not occur in a university program or activity.

UWS 4.14(1)(c) (c) The alleged conduct did not involve actions against someone physically located in the United States.

UWS 4.14(2) (2) The university may dismiss a formal Title IX complaint when any of the following applies:

UWS 4.14(2)(a) (a) The complainant formally requests in writing to withdraw the formal Title IX complaint.

UWS 4.14(2)(b) (b) The faculty member is no longer employed by the university.

UWS 4.14(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 4.14(3) (3) The university generally shall decide whether to dismiss a formal Title IX complaint within 30 days of receipt of the formal Title IX complaint, but the university may extend that timeline as necessary. If a formal Title IX complaint is dismissed, then the university shall provide notice of the dismissal and reasons therefore to the faculty member and complainant in writing.

UWS 4.14(4) (4) Within 20 days of receipt of the notice of dismissal, the complainant may appeal the dismissal by filing a written appeal with the chancellor. The complainant may appeal on any of the following bases:

UWS 4.14(4)(a) (a) Procedural irregularity that affected the outcome of the matter.

UWS 4.14(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 4.14(4)(c) (c) The university employee making the dismissal decision had a conflict of interest or bias for the faculty member or against the complainant, or against complainants generally, that affected the dismissal decision.

UWS 4.14(5) (5) The chancellor shall provide the faculty 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 faculty member within 30 days of receipt of a written appeal. The chancellor’s decision shall include the chancellor’s rationale for the decision and shall be final.

UWS 4.14(6) (6) The dismissal of a formal Title IX complaint does not preclude the university from otherwise pursuing discipline against the faculty member under other administrative rules or university policies.

UWS 4.14 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (3) made under s. 13.92 (4) (b) 12., Stats., Register May 2021 No. 785.

UWS 4.15 UWS 4.15 Investigation of Title IX misconduct allegations.

UWS 4.15(1) (1) Unless the university dismisses a formal Title IX complaint, the university shall appoint an investigator to conduct an investigation of the allegations in the formal Title IX complaint.

UWS 4.15(2) (2) The investigator shall provide the faculty member and the complainant with a notice of investigation. The notice shall include all of the following:

UWS 4.15(2)(a) (a) The grievance process, including informal resolution options.

UWS 4.15(2)(b) (b) The allegations of Title IX misconduct with sufficient detail for the faculty 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 4.15(2)(c) (c) A statement affirming the faculty member is presumed not responsible for the alleged violation.

UWS 4.15(2)(d) (d) The faculty member and complainant have the right to an advisor of their choice.

UWS 4.15(2)(e) (e) The faculty member and complainant have the right to inspect and review the evidence.

UWS 4.15(2)(f) (f) Information about any code of conduct rules which prohibit the faculty member or the complainant from knowingly making false statements or submitting false information during the disciplinary process.

UWS 4.15(3) (3) The faculty member and complainant 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 4.15(4) (4) The university’s investigator shall do all of the following:

UWS 4.15(4)(a) (a) Provide both the faculty member and the complainant an equal opportunity to provide witnesses, including fact and expert witnesses, who may be interviewed by the investigator, and other inculpatory and exculpatory evidence.

UWS 4.15(4)(b) (b) Not restrict the ability of either the faculty member or complainant to discuss the allegations under investigation or to gather and present relevant evidence.

UWS 4.15(4)(c) (c) Provide the faculty 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 4.15(4)(d) (d) Provide both the faculty 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 Title IX 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 a faculty member, complainant, or other source, so that the faculty member and complainant can meaningfully respond to the evidence prior to conclusion of the investigation.

UWS 4.15(5) (5) As part of its investigation and disciplinary process, the university may not access, consider, disclose, or otherwise use a faculty 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 faculty member or complainant, unless the university obtains the faculty member’s or complainant’s voluntary, written consent to do so in relation to the investigation and disciplinary process.