STATEMENT OF SCOPE
The Board of Regents of the University of Wisconsin System
Relating Nonacademic Student Misconduct
to:
Rule Type: Emergency and Permanent
1. Finding/nature of emergency (Emergency Rule only):
On April 19, 2024, the Federal Government released new, comprehensive Title IX regulations addressing sexual harassment and sexual violence with respect to students. The regulations go into effect on August 1, 2024. An emergency rule is required for the University of Wisconsin System to be compliant with these new federal regulations by August 1, 2024.
2. Detailed description of the objective of the proposed rule:
The Board of Regents of the University of Wisconsin System seeks to modify Chapter UWS 17, regarding Student Nonacademic Misconduct, to comply with new Title IX regulations the U.S. Department of Education has published relating allegations of sex discrimination and sex-based harassment involving students. The new regulations have expanded the universe of covered parties and activities, while also providing some flexibilities to institutions in responding to and adjudicating complaints of sex discrimination and sex-based harassment. Specifically, the Board seeks to amend Chapter UWS 17 to modify and add certain sections to ensure it is compliant with the new federal Title IX regulations. This will involve issuing an emergency rule followed by the promulgation of a related permanent rule.
3. Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives:
The current version of Chapter UWS 17 provides a student disciplinary process for handling student misconduct allegations, including allegations of sex discrimination and sex-based harassment. This process has been fair and effective since it was first published in 1996. In 2009 and 2015 and 2021, the Chapter was updated and amended through the administrative rule-making process. The modifications contemplated by this rulemaking would incorporate into law changes necessary to conform Chapter UWS 17 to the new federal Title IX regulations.
An alternative to modifying Chapter 17 would be to continue to operate with both the current Chapter UWS 17 and the new federal Title IX regulations. However, this is in conflict with the federal rules which preempt conflicting state laws and regulations. It could lead to confusion and exposure to federal enforcement action and third-party litigation, as well as complicated and confusing procedures for students.
4. Detailed explanation of statutory authority for the rule (including the statutory citation and language):
Wis. Stat. § 36.09(1)(a): “The primary responsibility for governance of the system shall be vested in the board which shall enact policies and promulgate rules for governing the system, plan for the future needs of the state for university education, ensure the diversity of quality undergraduate programs while preserving the strength of the state's graduate training and research centers and promote the widest degree of institutional autonomy within the controlling limits of system-wide policies and priorities established by the board.” Wis. Stat. § 36.35(1): “The board may delegate the power to suspend or expel students for misconduct or other cause prescribed by the board. Subject to sub. (4), the board shall promulgate rules under ch. 227 governing student conduct and the procedures for the administration of violations.” 5. Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule:
400 hours.
6. List with description of all entities that may be affected by the proposed rule:
All University of Wisconsin System institutions and the students thereof.
7. Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:
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 federal regulations effective August 1, 2024, with respect to how institutions of higher education that receive federal funding must address allegations of sex discrimination and sex-based harassment. The U.S. Department of Education through its Office for Civil Rights enforces these regulations.
The new regulations are intended to effectuate Title IX’s prohibition against sex discrimination and sex-based harassment including continuing to ensure fairness and due process for all parties in the university’s investigation and adjudication of such complaints. The new regulations have expanded the universe of covered parties and activities, while also providing some flexibilities to institutions in responding to and adjudicating complaints of sex discrimination and sex-based harassment.
8. Anticipated economic impact of implementing the rule (note if the rule is likely to have a significant economic impact on small businesses):
There may be an economic impact on UW institutions, given the University is required by the regulations to provide additional resources to support students, advisors, hearing officers, and additional trainings.
The University will continue to evaluate any potential economic impacts as it begins drafting rule language and will include more detailed analysis in its EIA. There is no anticipated significant economic impact on small businesses.
