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
The Board of the University of Wisconsin System orders the repeal of UWS 7.025; the amendment of UWS 4.02 (1) and (3) and 4.05 (1) (d) and (e) and 4.06 (1) (d) and (i) and (j) and 4.07 (1) and (2) and 4.0 8(1) and 7.05 (1) (a) and (b) and 7.05 (5) (c) and 7.05 (6); the repeal and recreation of UWS 7.05 (8); the creation of 4.015 and 4.05(2) and 4.06 (1) (am) and 4.08 (4) and 7.015, relating to procedures for dismissal and dismissal of faculty in special cases.
Analysis by the Board of Regents at the University of Wisconsin System
ANALYSIS
Explanation of agency authority:
s. 36.13(3), Stats.: "Rules. The board and its several faculties after consultation with appropriate students shall promulgate rules for tenure and probationary appointments, for the review of faculty performance and for the non-retention and dismissal of faculty members. Such rules shall be promulgated under ch. 227." s. 36.13(5), Stats.: "Procedural Guarantees. Any person having tenure may be dismissed only for just cause and only after due notice and hearing. Any person having a probationary appointment may be dismissed prior to the end of the person's contract term only for just cause and only after due notice and hearing. The action and decision of the board in such matters shall be final, subject to judicial review under ch. 227. The board and its several faculties shall develop procedures for the notice and hearing which shall be promulgated by rule under ch. 227." Related statute or rule: N/A
Plain language analysis:
The current version of ch. UWS 4 provides a disciplinary process for pursuing dismissal of faculty for just cause. The current version of ch. UWS 7 provides a disciplinary process for pursuing dismissal of faculty in special cases of serious criminal misconduct, including sexual assault. The U.S. Department of Education has issued guidance related to sexual assaults at higher education institutions and has reaffirmed that Title IX protects students from sexual harassment carried out by school employees. Some of the expectations of the U.S. Department of Education may require modifications to the provisions under the current ch. UWS 4 in order for them to be met. The modifications contemplated by this rulemaking would incorporate into law some of the published expectations of the U.S. Department of Education. In particular, the new provisions would reflect the evidentiary burden of proof and the role of a complainant in the process.
If modifications are not made to chs. UWS 4 and 7, UW institutions will continue to adhere to the provisions of chs. UWS 4 and 7 and the federal guidance, but only to the extent that a conflict does not arise. Further, following both policy guidance and the law may lead to confusion. Summary of, and comparisons with, existing or proposed federal regulation:
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:
The proposed rules do not have an economic impact on small businesses.
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;
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 11 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. (See PDF for image)
TEXT OF RULE
Section 1. UWS 4.015 is created to read:
UWS 4.015 Definitions.
The following terms shall have the meaning given below:
(1) “Clear and convincing evidence” means information that would persuade a reasonable person to have a firm belief that a proposition is more likely true than not true. It is a higher standard of proof than “preponderance of the evidence.”
(2) “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 subparagraphs (5), (6), (9), (10) and (11).
(3) “Complaint” means an allegation against a faculty member reported to an appropriate university official.
