The new federal regulations narrow the scope of conduct to which Title IX protections apply. However, the federal regulations specify that schools are not prohibited from addressing a broader scope of conduct under institutional codes of conduct. Under the new rule, allegations of sexual misconduct that do not fall within the scope of Title IX will continue to be addressed using student and employee conduct codes.
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 students 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, and 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 student, and the student is entitled to a hearing. 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
Under the current rule, students found responsible by the investigator for sexual misconduct and subject to sanctions have a right to a hearing before a hearing committee or hearing examiner. 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 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. 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.
