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.
(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:
