Definitions
The current rule defines sexual misconduct, such as sexual harassment and sexual assault, under the corresponding statutory definitions in the Wisconsin Statutes. The new federal regulations require adoption of definitions for sexual assault, dating violence, domestic violence, and stalking from the federal Clery and Violence Against Women Acts. Additionally, the new federal regulations define sexual harassment for Title IX purposes to include quid pro quo sexual harassment and hostile environment sexual harassment consisting of unwelcome conduct that a reasonable person would determine is severe, pervasive, and objectionably offensive.
The current rule allows University of Wisconsin System institutions to address allegations of sexual misconduct when the conduct occurs on university property, at university-sponsored events, or the conduct affects a substantial university interest. The new federal regulations narrow that definition to the following elements: (1) the school has actual knowledge of sexual harassment; (2) that occurred within the school’s education program or activity; (3) against a person in the United States. The regulations go on to define “education program or activity” to include situations over which the school exercised substantial control as well as buildings owned or controlled by student organizations officially recognized by a university, such as many fraternity and sorority houses. The new rule specifies the procedures University of Wisconsin System institutions must use in addressing sexual misconduct that meets the new definition and scope of the new federal regulations, as well as the procedures to be used in addressing sexual misconduct that falls outside of the scope of the regulations.
The current rule contains no definition for “sexual exploitation.” The new rule adds a definition of “sexual exploitation” to the list of sexual misconduct that University of Wisconsin System institutions address.
Title IX Sexual Misconduct Procedures
Notice
The current rule mentions several instances in which employees involved in an investigation of sexual misconduct must receive notice. The new federal regulations require notice to parties of formal Title IX complaints in more instances and in greater detail than the current rule provides. The new rule will update notice requirements to comply with the new federal regulations.
Mandatory Dismissal and Discretionary Dismissal
The current rule states that University of Wisconsin System institutions may or must dismiss complaints of sexual misconduct under certain circumstances. The new federal regulations define certain instances in which universities must or may dismiss complaints of sexual misconduct. For example, universities must dismiss allegations that do not meet the definitions of sexual misconduct under Title IX and may dismiss allegations if a complainant wishes to withdraw the complaint. A university may still address these dismissed complaints under other code of conduct provisions. The new regulations also grant the parties the right to appeal the university’s dismissal of allegations. The new rule incorporates changes to comply with these requirements under the federal regulations.
Investigation
Under the current rule, University of Wisconsin System institutions investigate allegations of sexual misconduct through formal investigations, the investigator provides the opportunity for both parties to meet with the investigator to discuss the allegations, the investigator provides the chancellor with a written report that may include recommended sanctions against the respondent, the chancellor, if appropriate, files dismissal charges against the faculty member and the faculty member is entitled to a hearing before a faculty committee. Under the federal regulations, universities must conduct investigation of formal Title IX complaints via an assigned investigator and must allow the parties an opportunity to present witnesses and evidence as well as review the evidence provided. Investigators must not make official findings of responsibility but may make recommended findings. The new rules incorporate changes to comply with these requirements under the federal regulations.
Hearing
The current rule provides a faculty member facing charges of dismissal related to allegations of sexual misconduct with the right to a hearing before a faculty committee. The federal regulations require universities conduct live hearings with cross-examination conducted directly, orally, and in real time for all Title IX cases. At a live hearing, if a party does not have an advisor, the institution must provide, without fee or charge, an advisor of the school’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party. The parties’ advisors must perform cross-examination. A hearing officer or hearing committee must preside over the hearing and determine the relevance of each question and explain any decision to exclude a question. The new rule incorporates changes to comply with these requirements under the federal regulations.
Summary of, and comparison 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." The U.S. Department of Education has issued guidance through Dear Colleague Letters or other informal guidance over the years which established the federal agency's expectations for institutions of higher education that receive federal funding. The new federal regulations are the first to interpret this law with respect to addressing allegations of sexual misconduct and override any guidance provided in the previous Dear Colleague Letters or other informal guidance. Please see the Plain Language Analysis for further information related to the specific provisions under the new federal regulations.
Comparison with rules in adjacent states:
The new federal regulations require all universities that receive federal funding to comply with the regulations or risk losing federal funding. All universities that receive federal funding are required to revise policies and procedures to comply with the federal regulations.
Summary of factual data and analytical methodologies:
Consulting with UW System and UW System institutions to determine how many Title IX cases are anticipated for this year, as well as the cost of advisors and hearing officers.
Analysis and supporting documents used to determine effect on small business:
UW System posted its Economic Impact Analysis and Fiscal Estimate on its website to make it available for comment. UW System also informed the UW System institutions that it had posted these documents. The documents remained posted on the website for 14 days from October 12, 2020 through October 26, 2020. No comments on the economic impact or fiscal estimate were received.
Fiscal Estimate:
See attached Economic Impact Analysis and Fiscal Estimate.
Effect on small business:
The new rule will not have an economic impact on small businesses. The new rules apply specifically to University of Wisconsin System institutions only.
Agency contact person:
Sarah Harebo
Title IX and Clery Administrator
University of Wisconsin System Administration
1848 Van Hise Hall, 1220 Linden Drive, Madison, Wisconsin 53706;
Telephone 608-262-6497;
Public Comments:
The Board of Regents held a public hearing on November 30, 2020 preceded by a public comment period related to the final rule. During the comment periods, comments could be submitted to the agency in any of the following ways: (1) on the web at https://www.wisconsin.edu/regents/public-comment-form/ or adminrules.wisconsin.gov; (2) by email to compliance@uwsa.edu; (3) at the public hearing; or (4) by mail to Jess Lathrop, Executive Director, Office of the Board of Regents, 1860 Van Hise Hall, 1220 Linden Drive, Madison, Wisconsin. ------------------------------------------------------------------------------------------------------------
TEXT OF RULE
Section 1. Chapter UWS 7(title) is amended to read: UWS 4
PROCEDURES FOR FACULTY DISMISSAL OF FACULTY IN SPECIAL CASES
Section 2. UWS 7.01 is amended to read:
UWS 7.01 Declaration of policy. University faculty members are responsible for advancing the university's missions of teaching, research, and public service. The fulfillment of these missions requires public trust in the integrity of the institution and in all members of the university community. The university's effectiveness, credibility, and ability to maintain public trust are undermined by criminal activity that poses a substantial risk to the safety of others, that seriously impairs the university's ability to fulfill its missions, or that seriously impairs the faculty member's fitness or ability to fulfill his or her the faculty member’s duties. Situations involving such serious criminal misconduct by faculty members shall be addressed and resolved promptly to ensure that public trust is maintained, and that the university is able to advance its missions. The Board of Regents therefore adopts the procedures in this chapter for identifying and responding to those instances in which a faculty member has engaged in serious criminal misconduct.
Section 2. UWS 7.015(2) is repealed and recreated to read:
(2) “Affected party” means any student, employee, visitor, or an individual participating in a university program or activity, who is a victim of a faculty member’s serious criminal misconduct.
Section 3. UWS 7.02(1)(d) is amended to read:
(d) The faculty member's fitness or ability to fulfill the duties of his or her the faculty member’s position is seriously impaired.
Section 4. UWS 7.03(1) is amended to read:
(1) Any faculty member having tenure may be dismissed only by the board and only for just cause and only after due notice and hearing. Any faculty member having a probationary appointment may be dismissed prior to the end of his or her the term of appointment only by the board and only for just cause and only after due notice and hearing.
Section 5. UWS 7.05(1)(a), (1)(b), and (3)(intro.) and (c) are amended to read:
