STATE OF WISCONSIN
Board of Regents of the University of Wisconsin System
IN THE MATTER OF RULEMAKING PROCEEDINGS BEFORE THE BOARD OF
REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM
ORDER OF THE BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM
ORDER
(See PDF for image)The Board of the University of Wisconsin System orders the repeal of UWS 17.13 (1) (a), (b) and (c) and (2); the amendment of UWS 17.05, 17.11 (2), (3) and (4) (a) 2. and 4., (b) and (c) (intro.), 1. and 2., 17.12 (1), (2), (3), (4) (b), (c) 3., and (d), (f) 3., (h), (i), (j) and (k) 17.13 (1), 17.14, 17.15, 17.16, 17.17 (2), (3), (4) and (5), 17.18 and 17.19 (1) and (2) (intro.), (a) and (c) (intro.) and 1., (3), (4) and (5); and the creation of UWS 17.02 (2)(m) and (14)(m), 17.09 (17), (18) and (19), and 17.13 (2) (intro.), (a) and (b), (3) (intro.), (a), (b) and (c) and (4), relating to student nonacademic disciplinary procedures.
Analysis by the Board of Regents of the University of Wisconsin System
ANALYSIS
Statute Interpreted: § 36.35 Statutory authority: Wis. Stat. § 36.35 Explanation of agency authority:
Under s. 36.35, Stats., "The board shall promulgate rules under ch. 227 governing student conduct and procedures for the administration of violations." Related statute or rule: N/A
Plain language analysis:
The current version of ch. UWS I 7 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 I 7. 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 ch. 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. Summary of, and comparisons with, existing or proposed regulations:
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.
Comparison with rules in adjacent states: N/A
Summary of factual data and analytical methodologies: N/A
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report:
This rule was posted for 14 days for economic impact comments and none were received.
Fiscal Estimate and Economic Impact Analysis:
The Fiscal Estimate and Economic Impact Analysis is attached
Anticipated costs incurred by private sector:
There are no anticipated fiscal costs on the private sector.
Effect on small business:
There is no anticipated economic effect of the proposed rule.
Agency contact person: (including email and telephone)
Jane Radue
Executive Director and Corporate Secretary
Board of Regents of University of Wisconsin System
1860 Van Hise Hall, 1220 Linden Drive, Madison, Wisconsin 53706;
Telephone 608-262-4808;
email address: jradue@uwsa.edu.
Place where comments are to be submitted and deadline for submission:
The “Notice of Public Comment Period on Economic Impact and Fiscal Estimate” for ch. UWS 17 was available on the UW System homepage: https://www.wisconsin.edu/ (Look under “News, Events, & Announcements”) and the Board of Regents page: https://www.wisconsin.edu/regents/. The notice remained open from April 17, 2015 to May 1, 2015. No comments were received during this period. Public comments may be submitted to the agency in one of the following locations: (1) on the web at https://www.wisconsin.edu/regents/public-comment-form/ or adminrules.wisconsin.gov; (2) by email to board@uwsa.edu; (3) at a public hearing scheduled from 10:00 a.m. to 1:00 p.m. on October 26, 2015 in the Overture Room, Gordon Dining and Event Center, 770 W. Dayton Street, Madison, Wisconsin; or (4) by mail to Jane Radue, Executive Director, Office of the Board of Regents, 1860 Van Hise Hall, 1220 Linden Drive, Madison, Wisconsin. The deadline for submission of comments is November 2, 2015. TEXT OF RULE
Section 1. UWS 17.02 (2)(m) is created to read:
(m) “Complainant” means any individual who is reported to have been subjected to sexual harassment, sexual assault, dating violence, domestic violence or stalking, as defined in s. UWS 17.09.
Section 2. UWS 17.02 (14)(m) is created to read:
(m) “Respondent” means any student who is accused of violating any provision of this chapter, and was registered for study in an institution for the academic period, or between academic periods for continuing students, when the misconduct occurred.
Section 3. UWS 17.05 is amended to read:
UWS 17.05 Designation of investigating officer. The chief administrative officer of each institution shall designate an investigating officer or officers for allegations of student nonacademic misconduct. The investigating officer shall investigate student nonacademic misconduct and initiate procedures for nonacademic misconduct under s. UWS 17.11. For allegations involving sexual assault, domestic violence, dating violence, stalking or sexual harassment, the chief administrative officer shall involve the Title IX Coordinator, or designee, in accordance with applicable institutional policies. Section 4. UWS 17.09 (17) is created to read:
(17) Dating violence. Violence committed by a student against another person with whom they are in a “dating relationship” as defined in s. 813.12(1)(ag) Stats. Section 5. UWS 17.09 (18) is created to read:
Section 6. UWS 17.09 (19) is created to read:
(19) Sexual Harassment. Conduct defined in s. 111.32(13) Stats or as defined in Board of Regent Policy that addresses sexual harassment. Section 7. UWS 17.11 (2) is amended to read:
(2) Conference with Student Respondent. When the investigating officer concludes that proceedings under this section are warranted, the investigating officer shall promptly contact the student respondent in person, by telephone, or by electronic mail to offer to discuss the matter with student. The purpose of this discussion is to permit the investigating officer to review with the student the basis for his or her belief that the student engaged in matter, review the investigating officer’s basis for believing that the respondent engaged in nonacademic misconduct, and to afford the student respondent an opportunity to respond. If the student does not respondent fails to respond to the investigating officer’s offer to discuss the matter, the investigating officer may proceed to make a determination on the basis of the available information. A complainant shall have all the rights provided to the respondent in this subsection.
Section 8. UWS 17.11 (3) is amended to read:
(3) Determination by the investigating officer that no disciplinary sanction is warranted. If, as a result of a discussion under sub. (2) or review of available information, the investigating officer determines that nonacademic misconduct did not in fact occur, or that no disciplinary sanction is warranted under the circumstances, the matter will be considered resolved without the necessity for further action. The investigating officer shall simultaneously notify the respondent and the complainant of this outcome and offer to discuss it separately with either one. If the investigating officer determines that nonacademic misconduct did not occur or that no disciplinary sanction is warranted, the complainant may appeal this decision in accordance with s. UWS 17.13. Section 9. UWS 17.11 (4)(a)2. and 4. are amended to read:
2. A description of all information available to the university regarding the alleged misconduct. Such information shall be available to the student complainant and the respondent, except as may be precluded by applicable state or federal law.
4. Notice of the student respondent’s right to a hearing.
