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 11 (title) is amended to read: UWS 11
PROCEDURES FOR ACADEMIC STAFF DISMISSAL OF ACADEMIC STAFF FOR CAUSE AND FOR DISCIPLINE AND DISMISSAL IN TITLE IX CASES
Section 2. Subchapter I – General of Chapter UWS 11 [precedes UWS 11.01] is created to read: UWS 11
SUBCHAPTER I
GENERAL
Section 3. UWS 11.01(1) and (3) is amended to read:
(1) A member of the academic staff holding an indefinite appointment may be dismissed only for just cause under ss. UWS 11.02 through 11.106 11.10 and 11.29 through 11.33 or for reasons of budget or program under ch. UWS 12. (3) Just cause for dismissal includes, but is not limited to, serious criminal misconduct, as defined in s. UWS 11.102 11.29. Section 4. UWS 11.01(4) is created to read:
(4) Indefinite appointment academic staff dismissal for cause and lesser discipline based on allegations of Title IX misconduct, as defined in s. UWS 11.13, shall be governed by ss. UWS 11.13 to UWS 11.26. Section 5. UWS 11.015 (intro.) is repealed and recreated to read:
UWS 11.015 Definitions. In this chapter:
Section 6. UWS 11.015(2) is repealed.
Section 7. UWS 11.015(3m) is created to read:
(3m) “Consent” means words or overt actions by a person who is competent to give informed consent, indicating a freely given agreement to engage in sexual activity or other activity referenced in the definitions of sexual assault and sexual exploitation in this section. A person is unable to give consent if the person is in a state of incapacitation because of drugs, alcohol, physical or intellectual disability, or unconsciousness.
Section 8. UWS 11.015(5) and (6) are repealed and recreated to read:
(5) “Dating violence" means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant; and where the existence of such a relationship shall be determined based on a consideration of the following factors: the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
(6) “Domestic violence" means felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the complainant, by a person with whom the complainant shares a child in common, by a person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner, by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of Wisconsin, or by any other person against an adult or youth complainant who is protected from that person’s acts under the domestic or family violence laws of Wisconsin as per ss. 813.12(1)(am) and 968.075, Stats. Section 9. UWS 11.015(6m) is created to read:
(6m) “Incapacitation” means the state of being unable to physically or mentally make informed rational judgments and effectively communicate, and may include unconsciousness, sleep, or blackouts, and may result from the use of alcohol or other drugs. Where alcohol or other drugs are involved, evaluation of incapacitation requires an assessment of how the consumption of alcohol or drugs affects a person’s decision-making ability; awareness of consequences; ability to make informed, rational judgments; capacity to appreciate the nature and quality of the act; or level of consciousness. The assessment is based on objectively and reasonably apparent indications of incapacitation when viewed from the perspective of a sober, reasonable person.
Section 10. UWS 11.015(8) is repealed.
Section 11. UWS 11.015(9), (10), and (11) are repealed and recreated to read:
(9) “Sexual assault" means an offense that meets any of the following definitions:
(a)
“Rape” means the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of the complainant, without the consent of the complainant. (b)
“Fondling” means the touching of the private body parts of the complainant for the purpose of sexual gratification, without the consent of the complainant, including instances where the complainant is incapable of giving consent because of the complainant’s age or because of the complainant’s temporary or permanent mental incapacity. (c)
“Incest” means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law as per s. 944.06, Stats. (d)
“Statutory Rape” means sexual intercourse with a complainant who is under the statutory age of consent as per s. 948.02, Stats.
