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. Subchapter I – General of Chapter UWS 17 [precedes UWS 17.01] is created to read: UWS 17
SUBCHAPTER I
GENERAL
Section 2. UWS 17.02(1) and (2m) are amended to read:
(1) “Chief administrative officer" means the chancellor of an institution or dean of a campus or their the chancellor’s designees.
(2m) “Complainant" means any individual who is reported to have been subjected to sexual harassment, sexual assault, dating violence, domestic violence, or stalking alleged to be the subject of sexual misconduct, as defined in s. UWS 17.09 UWS 17.151. Section 3. UWS 17.02(2r) is created to read:
(2r) “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 s. UWS 17.151. 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 4. UWS 17.02(7) is amended to read:
(7) “Disciplinary sanction” means any action listed in s. UWS 17.10 17.085 (1) taken in response to student nonacademic misconduct. Section 5. UWS 17.02(7m) and (8m) are created to read:
(7m) “Education program or activity” means, for purposes of a Title IX misconduct only, locations, events, or circumstances over which the university exercised substantial control over both the respondent and the context in which the relevant misconduct occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the university.
(8m) “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 student and requesting that the institution investigate the allegations. At the time of filing of the formal Title IX complaint, the complainant shall 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, by 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.
Section 6. UWS 17.02(9) is amended to read:
(9) “Hearing examiner" means an individual, other than the investigating officer, appointed by the chief administrative officer in accordance with s. UWS 17.06 (2) for the purpose of conducting a hearing under s. UWS 17.12 or 17.153. Section 7. UWS 17.02(9m) is created to read:
(9m) “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 8. UWS 17.02(10), (11), and (12) are amended to read:
(10) “Institution" means any university, or an organizational equivalent designated by the board., and the University of Wisconsin colleges.
(11) “Investigating officer" means an individual, or his or her the individual’s designee, appointed by the chief administrative officer of each institution, to conduct investigations of nonacademic misconduct under this chapter.
(12) “Nonacademic misconduct hearing committee" or “committee" means the committee appointed pursuant to s. UWS 17.07 to conduct hearings under s. UWS 17.12 or UWS 17.153. Section 9. UWS 17.02(12m) is created to read:
(12m) “Party” refers to a respondent or complainant involved in a disciplinary procedure under Subchapter III of this chapter.
Section 10. UWS 17.02(13m) and (15) are amended to read:
(13m) “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 and has been reported to have violated s. UWS 17.09 or UWS 17.151. (15) “Student affairs officer" means the dean of students, student affairs officer, or other personnel designated by the chief administrative officer to coordinate disciplinary hearings and carry out duties described in this chapter.
Section 11. 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 ss. UWS 17.11 or 17.152. For allegations involving sexual assault, domestic violence, dating violence, stalking, or sexual harassment sexual misconduct, as defined in s. UWS 17.151, the chief administrative officer shall involve the Title IX Coordinator, or designee , in accordance with applicable institutional policies shall serve as the investigating officer. Section 12. UWS 17.06(2) is amended to read:
(2) A hearing examiner shall be selected by the chief administrative officer from the faculty and staff of the institution, pursuant to the policies adopted under sub. (1). Section 13. UWS 17.07(2) is amended to read:
(2) A student nonacademic misconduct hearing committee shall consist of at least three persons, including at least one student, except that no such committee shall be constituted with a majority of members who are students. The presiding officer, who may be the hearing examiner designated pursuant to s. UWS 17.06, shall be appointed by the chief administrative officer. The presiding officer and at least one other member shall constitute a quorum at any hearing held pursuant to due notice. Section 14. UWS 17.08(1) and (2) is amended to read:
UWS 17.08 Nonacademic misconduct occurring on or outside of university lands.
(1) Misconduct on university lands. Except as provided in s. UWS 17.08 (2), the provisions contained in this chapter shall apply to the student conduct described in s. ss. UWS 17.09 and 17.151 that occurs on university lands or at university-sponsored events. (2) Misconduct outside of university lands. The provisions contained in this chapter may apply to the student conduct described in ss. UWS 17.09 and 17.151 that occurs outside of university lands only when, in the judgment of the investigating officer, the conduct adversely affects a substantial university interest. In determining whether the conduct adversely affects a substantial university interest, the investigating officer shall consider whether the conduct meets one or more of the following conditions: (a) The conduct constitutes or would constitute a serious criminal offense, regardless of the existence of any criminal proceedings.
(b) The conduct indicates that the student presented or may present a danger or threat to the health or safety of himself, herself the student or others.
(c) The conduct demonstrates a pattern of behavior that seriously impairs the university's ability to fulfill its teaching, research, or public service missions.
Section 15. Subchapter II – Procedures for Student Nonacademic Discipline in Non-Sexual Misconduct Cases of Chapter UWS 17 [precedes UWS 17.09] is created to read: UWS 17
SUBCHAPTER I
PROCEDURES FOR STUDENT NONACADEMIC DISCIPLINE IN NON_SEXUAL MISCONDUCT CASES
Section 16. UWS 17.09(intro.) amended to read:
UWS 17.09 Conduct subject to disciplinary action. In accordance with s. UWS 17.08, the university may discipline a student for engaging in, attempting to engage in, or assisting others to engage in any of the following types of nonacademic misconduct. Conduct defined in s. UWS 17.09 shall use the disciplinary procedure, hearing, appeal, and settlement processes detailed in ss. UWS 17.11 to 17.15. However, at the university’s discretion, conduct defined in s. UWS 17.09, when arising out of the same facts and circumstances as sexual misconduct defined in s. 17.151, may be consolidated with such charges and addressed with the disciplinary procedure, hearing, appeal, and settlement processes detailed in ss. UWS 17.152 to 17.156. Section 17. UWS 17.09(2) and (3) and (17) and (18) and (19) are repealed.
Section 18. UWS 17.09(20) is created to read:
(20) Retaliation. Intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured in ss. UWS 17.152 to 17.156, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under ss. UWS 17.152 to 17.156. Section 19. UWS 17.10 is renumbered to UWS 17.085 and 17.085(1)(intro.) is amended to read:
(1) The disciplinary sanctions that may be imposed for nonacademic misconduct, in accordance with the procedures of ss. UWS 17.11 to 17.13, and 17.152 to 17.154, are any of the following:
