STATE OF WISCONSIN
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM
IN THE MATTER OF RULEMAKING PROCEEDINGS BEFORE THE BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM | ORDER OF THE BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM AMENDING AND ADOPTING EMERGENCY RULES |
The statements of scope for this rule, SS 081-20, was approved by the Governor on June 11, 2020, published in Register 774A4 on June 19, 2020, and approved by Board of Regents of the University of Wisconsin System on July 20, 2020. This emergency rule was approved by the Governor on August 7, 2020. ORDER
An order of the Board of Regents of the University of Wisconsin System to repeal 17.09(2) and (3) and (17) and (18), and 17.13(3) and (5) and (6); renumber UWS 17.09 (4) and (5) and (6) and (7) and (8) and (9) and (10) and (11) and (12) and (13) and (14) and (15) and (16), 17.13(3) and (4), 17.16, 17.17, 17.18, and 17.19 to 17.09(2) and (3) and (4) and (5) and (6) and (7) and (8) and (9) and (10) and (11) and (12) and (13) and (14), 17.13(2) and (3), 17.22, 17.23, 17.24, and 17.25 respectively; amend UWS 17.02(1) and (2m) and (10) and (11) and (12) and (13m) and (15), 17.05, 17.06(2), 17.07(2), 17.08(1) and (2), 17.09, 17.10(1), 17.11, 17.12(1) and (3) and (4), 17.13(1), 17.14, 17.15, 17.22, 17.23(2) and (3) and (5), and 17.24; and create UWS 17.02(2g) and (7m) and (8m) and (9m) and (12m), 17.09(15), 17.16, 17.17, 17.18, 17.19, 17.20, 17.21, and 17.25(2)(d), relating to addressing allegations of sexual misconduct against faculty, academic staff, and students of the University of Wisconsin System.
Analysis prepared by the Board of Regents and the University of Wisconsin System.
-----------------------------------------------------------------------------------------------------------
FINDING OF EMERGENCY
The Board of Regents of the University of Wisconsin System finds that an emergency exists and that this rule is necessary for the immediate preservation of the public peace, health, safety, or welfare. A statement of facts constituting the emergency is:
The U.S. Department of Education published new regulations on May 5, 2020 which take effect August 14, 2020. These regulations update the definitions of sexual misconduct and add additional process requirements for when universities respond to allegations of sexual misconduct against students and employees under Title IX of the Education Amendments of 1972. The University of Wisconsin Systems current policies for addressing allegations under Title IX reside within the Wisconsin Administrative Code and are structured on the basis of federal guidance issued prior of the new regulations, and several of these sections of the Code do not comply with the new regulations. Noncompliance with these regulations could result in loss of federal funding for the University of Wisconsin System, as well as potential litigation, which would threaten the welfare of the University of Wisconsin System.
-----------------------------------------------------------------------------------------------------------
ANALYSIS
Explanation of agency authority:
s. 36.09 (1)(a), Stats.: “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.” s. 36.11 (1)(a), Stats.: “The board may promulgate rules under ch. 227 to protect the lives, health and safety of persons on property under its jurisdiction and to protect such property and to prevent obstruction of the functions of the system.” Related statute or rule: N/A
Plain language analysis:
Title IX Sexual Misconduct and Non-Title IX Sexual Misconduct
The current rule treats all allegations of sexual misconduct the same. 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 and “unwelcome conduct that a reasonable person would determine is so 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 should 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 and employees 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 of a complainant wishes to withdraw the complaint. A university may still address these dismissed complaints under other code of conduct provisions or state law. 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
