Chapter UWS 11

UWS 11.015(10)(a)1. 1. Observing, recording, or photographing private body parts or sexual activity of the complainant.

UWS 11.015(10)(a)2. 2. Allowing another person to observe, record, or photograph sexual activity or private body parts of the complainant.

UWS 11.015(10)(a)3. 3. Otherwise distributing recordings, photographs, or other images of the sexual activity or private body parts of the complainant.

UWS 11.015(10)(b) (b) Masturbating, touching one’s genitals, or exposing one’s genitals in the complainant’s presence without the consent of the complainant, or inducing the complainant to do the same.

UWS 11.015(10)(c) (c) Dishonesty or deception regarding the use of contraceptives or condoms during the course of sexual activity.

UWS 11.015(10)(d) (d) Inducing incapacitation through deception for the purpose of making the complainant vulnerable to non-consensual sexual activity.

UWS 11.015(10)(e) (e) Coercing the complainant to engage in sexual activity for money or anything of value.

UWS 11.015(10)(f) (f) Threatening distribution of any of the following, to coerce someone into sexual activity or providing money or anything of value:

UWS 11.015(10)(f)1. 1. Photos, videos, or recordings depicting private body parts or sexual activity of the complainant.

UWS 11.015(10)(f)2. 2. Other information of a sexual nature involving the complainant, including sexual history or sexual orientation.

UWS 11.015(11) (11) “Stalking” means engaging in a course of conduct directed at the complainant that would cause a reasonable person to fear for their safety or the safety of others; or suffer substantial emotional distress.

UWS 11.015 History History: CR 06-078: cr. Register May 2007, No. 617, eff. 6-1-07; CR 15-059: r. and recr. Register June 2016 No. 726, eff. 7-1-16; correction in (2), (8) made under 35.17, Stats., Register June 2016 No. 726; CR 20-061: r. and recr. (intro.), r. (2), cr. (3m), r. and recr. (5), (6), cr. (6m), r. (8), r. and recr. (9) to (11) Register May 2021 No. 785, eff. 6-1-21.

subch. II of ch. UWS 11 Subchapter II — Procedures for Academic Staff Dismissal in Non-Title IX Cases

UWS 11.016 UWS 11.016 Subchapter II definitions.

UWS 11.016(1) (1) “Complainant” means any individual who is alleged to be the subject of sexual harassment, sexual assault, dating violence, domestic violence, stalking, or sexual exploitation, as defined in this section.

UWS 11.016(2) (2) “Sexual harassment” means conduct on the basis of sex that satisfies one or more of the following:

UWS 11.016(2)(a) (a) Quid pro quo sexual harassment.

UWS 11.016(2)(a)1. 1. An employee of the institution conditions the provision of an aid, benefit, or service of the institution directly or indirectly on an individual’s participation in unwelcome sexual conduct.

UWS 11.016(2)(a)2. 2. An employee of the institution either explicitly or implicitly conditions the provision of an academic, professional, or employment-related opportunity, aid, benefit, or service on an individual’s participation in unwelcome sexual conduct.

UWS 11.016(2)(b) (b) Hostile environment sexual harassment.

UWS 11.016(2)(b)1. 1. Unwelcome conduct of a sexual nature directed towards a student, an employee, or a person participating in a program or activity of the university that, when using the legal “reasonable person” standard, is so severe, pervasive, and objectively offensive that it effectively denies the person equal access to the institution’s education program or activity.

UWS 11.016(2)(b)2. 2. Unwelcome conduct of a sexual nature directed towards an individual that, when using the legal “reasonable person” standard, is so severe or pervasive and objectively offensive that it has the purpose or effect of unreasonably interfering with an individual’s academic or work performance or participation in an university sponsored or supported activity.

UWS 11.016 Note Note: The definitions in this section are intended to apply only to Subchapter II.

UWS 11.016 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21; cr. (title) under s. 13.92 (4) (b) 2., Stats., Register May 2021 No. 785.

UWS 11.02 UWS 11.02 Responsibility for charges.

UWS 11.02(1) (1) Whenever the chancellor of an institution receives an allegation which concerns an academic staff member holding an indefinite appointment which appears to be substantial and which, if true, might lead to dismissal under s. UWS 11.01, the chancellor shall request within a reasonable time that the appropriate dean, director, or designee investigate the allegation. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the chancellor shall direct the Title IX Coordinator, or designee, to initiate an investigation in accordance with applicable policies. The dean, director, or designee shall offer to discuss it informally with the academic staff member, and, if the allegation involves sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, with the complainant and provide information of rights under this chapter. Both the academic staff member and the complainant shall have the right to be accompanied by an advisor of their choice at any meeting or proceeding that is part of the institutional disciplinary process. If such an investigation and discussion does not result in a resolution of the allegation and if the allegation is deemed sufficiently serious to warrant dismissal, the dean, director, or designee shall prepare a written statement of specific charges. A member of the academic staff may be dismissed only after receipt of such a statement of specific charges and, if a hearing is requested by the academic staff member, after a hearing held in accordance with the provisions of this chapter and the subsequently adopted procedures of the institution. If the staff member does not request a hearing, dismissal action shall proceed along normal administrative lines but the provisions of ss. UWS 11.02, 11.08, and 11.09 shall apply. In those cases where the immediate supervisor of the academic staff member concerned is a dean or director, the chancellor shall, to avoid potential prejudice, designate an appropriate administrative officer to act for the dean or director under this section.

UWS 11.02(2) (2) Any formal statement of specific charges shall be served personally, by electronic means, or by certified mail, return receipt requested. If such service cannot be made within 20 days, service shall be accomplished by first class mail and by publication as if the statement of charges were a summons and the provisions of s. 801.11 (1) (c), Stats., were applicable. Such service by mailing and publication shall be effective as of the first insertion of the notice of statement of charges in the newspaper. If the formal statement of specific charges involves sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the formal statement shall be provided to the complainant upon request, except as may be precluded by applicable state or federal law.

UWS 11.02 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; 2015 Wis. Act 330: am. (2) Register April 2016 No. 724, eff. 5-1-16; CR 15-059: am. (1), (2) Register June 2016 No. 726, eff. 7-1-16; merger of (2) treatments by 2015 Wis. Act 335 and CR 15-059 under s. 13.92 (4) (bm), Stats., Register September 2016 No. 729; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.03 UWS 11.03 Hearing body.

UWS 11.03(1) (1) The chancellor of each institution shall provide for a hearing body charged with hearing dismissal cases and making a report and recommendations under this chapter. Throughout this chapter, the term “hearing body” is used to indicate either a hearing committee or a hearing examiner as designated in the institutional procedures. This hearing body shall operate as the hearing agent for the chancellor pursuant to s. 227.46 (4), Stats., and conduct the hearing, make a verbatim record of the hearing, prepare a summary of the evidence and transmit such record and summary along with its recommended findings of fact and decision to the chancellor according to s. UWS 11.07.

UWS 11.03(2) (2) With the concurrence of the faculty and the academic staff advisory committee of each institution, the chancellor may provide that dismissal for cause of a member of the academic staff having teaching responsibilities may be heard by the hearing body specified in s. UWS 4.03. If so provided, the hearing shall be held pursuant to the provisions of ch. UWS 11.

UWS 11.03 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register May 2007 No. 617.

UWS 11.04 UWS 11.04 Hearing. If the staff member requests a hearing within 20 days from the service of the statement of charges (25 days if notice is by first class mail and publication), such hearing shall be held not later than 20 days after the request, except that this time limit may be extended by mutual consent of the parties or by order of the hearing body. The request for a hearing shall be addressed in writing to the hearing body established pursuant to s. UWS 11.03. Service of written notice of hearing on the specific charges shall be provided at least 10 days prior to the hearing.

UWS 11.04 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75.

UWS 11.05 UWS 11.05 Adequate due process.

UWS 11.05(1) (1) Each institution shall develop policies and procedures to provide for a fair hearing upon request in the event of dismissal. A fair hearing for an academic staff member whose dismissal is sought under s. UWS 11.01 shall include all of the following:

UWS 11.05(1)(a) (a) A right to the names of witnesses and of access to documentary evidence upon the basis of which dismissal is sought.

UWS 11.05(1)(b) (b) A right to be heard in the academic staff member’s defense.

UWS 11.05(1)(c) (c) A right to an advisor, counsel, or other representative, and to offer witnesses.

UWS 11.05(1)(d) (d) A right to confront and cross-examine adverse witnesses. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the hearing committee may reasonably restrict the academic staff member and the complainant from questioning each other.

UWS 11.05(1)(e) (e) A verbatim record of all hearings, which might be a sound recording, provided at no cost.

UWS 11.05(1)(f) (f) Written findings of fact and decision based on the hearing record.

UWS 11.05(1)(g) (g) Admissibility of evidence governed by s. 227.45 (1) to (4), Stats.

UWS 11.05(2) (2) For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall have all the rights provided to the academic staff member in s. UWS 11.05 (1) (a) to (g), except as may be precluded by applicable state or federal law.

UWS 11.05 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; correction made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; correction in (1) (g) made under s. 13.93 (2m) (b) 7., Stats., Register May 2007 No. 617; CR 15-059: am. (1) (c), (d), cr. (2); Register June 2016 No. 726; correction in (2) under 35.17, Stats., Register June 2016 No. 726, eff. 7-1-16; CR 20-061: am. (1) (intro.), (a), (b), (d) to (f), (2) Register May 2021 No. 785, eff. 6-1-21; correction in (1) (c) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.06 UWS 11.06 Procedural guarantees.

UWS 11.06(1) (1) The following requirements shall also be observed:

UWS 11.06(1)(a) (a) Any person who participated in the investigation of allegations leading to the filing of a statement of charges, or in the filing of a statement of charges, or who is a material witness shall not be qualified to participate as a member of the hearing body.

UWS 11.06(1)(b) (b) The hearing shall be closed unless the staff member under charges requests an open hearing, in which case it shall be open (see subch. V of ch. 19, Stats., Open Meetings of Governmental Bodies).

UWS 11.06(1)(c) (c) The hearing body shall not be bound by common law or statutory rules of evidence and may admit evidence having reasonable probative value but shall exclude immaterial, irrelevant, or unduly repetitious testimony, and shall give effect to recognized legal privileges.

UWS 11.06(1)(d) (d) The burden of proof of the existence of just cause is on the administration or its representatives.

UWS 11.06(1)(dm) (dm) For complaints of sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the standard of proof shall be a preponderance of the evidence.

UWS 11.06(1)(e) (e) If a staff member whose dismissal is sought has requested a hearing, discontinuance of the proceeding by the institution is deemed a withdrawal of charges and a finding that the charges were without merit.

UWS 11.06(1)(f) (f) Nothing in this section shall prevent the settlement of cases by mutual agreement between the administration and the staff member, with the chancellor’s approval, at any time prior to a final decision by the chancellor; or when appropriate, with the board’s approval prior to a final decision by the board.

UWS 11.06(1)(g) (g) Adjournments shall be granted to enable either party to investigate evidence as to which a valid claim of surprise is made.

UWS 11.06(2) (2) If the institutional policies and procedures provide that dismissal cases be heard by a hearing committee, the following requirements shall be observed:

UWS 11.06(2)(a) (a) The committee may, on motion of either party, and, if the complaint involves sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, on the motion of the complainant, disqualify any one of its members for cause by a majority vote. If one or more of the hearing committee members disqualify themselves or are disqualified, the remaining members may select a number of replacements equal to the number who have been disqualified to serve, except that alternative methods of replacement may be specified in the policies and procedures adopted by the institution.

UWS 11.06(2)(b) (b) If the hearing committee requests, the chancellor shall provide legal counsel after consulting with the committee concerning its wishes in this regard. The function of legal counsel shall be to advise the committee, consult with them on legal matters, and such other responsibilities as shall be determined by the committee within the provisions of the policies and procedures adopted by the institution.

UWS 11.06 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; correction in (1) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2001, No. 544; CR 15-059: cr. (1) (dm), am. (1) (f), (2) (a) Register June 2016 No. 726, eff. 7-1-16; CR 20-061: am. (1) (a) to (f), (2) (a) Register May 2021 No. 785, eff. 6-1-21; correction in (1) (d) made under s. 35.17, Stats., Register June 2021 No. 786.

UWS 11.07 UWS 11.07 Recommendations: to the chancellor. The hearing body shall send to the chancellor and to the academic staff member concerned, as soon as practicable after conclusion of a hearing, a verbatim record of the testimony and a copy of its report, findings, and recommendations. After reviewing the matter on record and considering arguments if submitted by the parties, the chancellor shall issue a decision. In that decision, the chancellor may order dismissal of the academic staff member, may impose a lesser disciplinary action, or may find in favor of the academic staff member. The academic staff member shall be notified of the chancellor’s decision in writing. In cases involving sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall be notified of the chancellor’s decision at the same time as the academic staff member. This decision shall be deemed final unless the board, upon request of the academic staff member, grants review based on the record. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall have all rights provided to the academic staff member in this section.

UWS 11.07 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; CR 15-059: am. Register June 2016 No. 726, eff. 7-1-16; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21; correction made under s. 13.92 (4) (b) 7., Stats., Register May 2021 No. 785.

UWS 11.08 UWS 11.08 Suspension from duties. Pending the final decision as to dismissal, the academic staff member with an indefinite appointment shall not be relieved of duties, except where, after consulting with the appropriate administrative officer, the chancellor finds that substantial harm may result if the staff member is continued in the staff member’s position. Where such determination is made, the staff member may be relieved of the staff member’s position immediately, or be assigned to another administrative unit, but the staff member’s salary shall continue until the chancellor makes a decision as to dismissal, unless the chancellor also makes the determinations set forth in s. UWS 11.32 (1) in which case the suspension from duties may be without pay and the procedures set forth in s. UWS 11.32 shall apply.

UWS 11.08 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; CR 06-078: am. Register May 2007 No. 617, eff. 6-1-07; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.09 UWS 11.09 Date of dismissal. A decision by the chancellor ordering dismissal shall specify the effective date of the dismissal.

UWS 11.09 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75.

UWS 11.10 UWS 11.10 Board review. A member of the academic staff on indefinite appointment who has been dismissed for cause by the chancellor following a hearing may appeal this action to the board. Any appeal must be made within 30 days of the date of the decision of the chancellor to dismiss. Upon receiving an appeal the board shall review the case on the record. Following such review the board may confirm the chancellor’s decision, or direct a different decision, or approve a further hearing before the board with an opportunity for filing exceptions to the hearing body’s recommendations or the chancellor’s decision and for oral argument on the record. If further review with opportunity for oral argument on the record is provided, this review shall be closed unless the staff member requests an open hearing. (See subch. V of ch. 19, Stats., Open Meetings of Governmental Bodies.) All decisions of the board, whether after review on the record or after oral argument, shall be expressed in writing and shall indicate the basis for such decision. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall have the same opportunity to appeal, file exceptions to the recommendations of the hearing committee or chancellor, and oral arguments, as provided to the academic staff member.

UWS 11.10 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; correction made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2001, No. 544; CR 15-059: am. Register June 2016 No. 726, eff. 7-1-16; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.11 UWS 11.11 Dismissal for cause-fixed term or probationary academic staff appointments. A member of the academic staff holding a probationary appointment, or a member of the academic staff holding a fixed term appointment and having completed an initial specified period of time, may be dismissed prior to the end of the contract term only for just cause or for reasons of budget or program under ch. UWS 12. A nonrenewal of such an appointment is not a dismissal under this section. A dismissal shall not become effective until the individual concerned has received a written notification of specific charges and has been offered an opportunity for a hearing before the appropriate dean or director or designee. If such hearing is requested, a determination of just cause and notification of dismissal shall be made by the dean or director or designee. If no hearing is requested the dismissal is effected by the specifications in the original notification of charges. The hearing before the dean, director, or designee shall provide the academic staff member with an opportunity to present evidence and argument concerning the allegations. Dismissal shall be effective immediately on receipt of written notification of the decision of the dean or director or designee unless a different dismissal date is specified by the dean or director. Dismissals for cause shall be appealable by filing an appeal with the hearing body established under s. UWS 11.03. The burden of proof as to the existence of just cause on appeal shall be on the administration or the authorized official. The provisions of s. UWS 11.04, procedural guarantees, contained in ss. UWS 11.05 and 11.06 and the review provisions of s. UWS 11.07, shall be applicable to the appeal proceeding. In no event, however, shall a decision favorable to the appellant extend the term of the original appointment. If a proceeding on appeal is not concluded before the appointment expiration date, the academic staff member concerned may elect that such proceeding be carried to a final decision. Unless such election is made in writing, the proceeding shall be discontinued at the expiration of the appointment. If the chancellor ultimately decides in favor of the appellant, salary lost during the interim period between the effective date of dismissal and the date of the chancellor’s decision or the end of the contract period, whichever is earlier, shall be restored. In those cases where the immediate supervisor of the academic staff member concerned is a dean or director, the chancellor shall, to avoid potential prejudice, designate an appropriate administrative officer to act for the dean or director under this section. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, or stalking, the complainant shall have all procedural rights provided to the academic staff member in this section and the standard of proof shall be by a preponderance of the evidence. Dismissal for cause and lesser discipline based on allegations of Title IX misconduct, as defined in s. UWS 11.13, shall be governed by ss. UWS 11.13 to 11.26.

UWS 11.11 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; CR 15-059: am. Register June 2016 No. 726, eff. 7-1-16; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21; correction made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.12 UWS 11.12 Dismissal for cause-teaching members of the academic staff. The policies and procedures of each institution may provide that dismissal for cause of a member of the academic staff having teaching responsibilities and holding a probationary appointment or a fixed term appointment may proceed under ss. UWS 11.02 to 11.10. If the institutional policies and procedures do not specifically make such provisions, dismissal for cause shall be made pursuant to s. UWS 11.11. Dismissal for cause and lesser discipline based on allegations of Title IX misconduct as defined in s. UWS 11.13 shall be governed by ss. UWS 11.13 to 11.26.

UWS 11.12 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21; correction made under s. 35.17, Stats., Register May 2021 No. 785.

subch. III of ch. UWS 11 Subchapter III — Procedures for Academic Staff Dismissal and Discipline in Title IX Cases

UWS 11.13 UWS 11.13 Subchapter III definitions. In this subchapter:

UWS 11.13(1) (1) “Complainant” means any individual who is alleged to be the subject of Title IX misconduct, as defined in this section.

UWS 11.13(2) (2) “Education program or activity” means, for purposes of 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.

UWS 11.13(3) (3) “Formal Title IX complaint” means, for the purposes of 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 an academic staff member and requesting that the institution investigate the allegations. At the time of filing of the formal Title IX complaint, the complainant must be participating in or attempting to participate in an educational program or activity. A formal 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.

UWS 11.13(4) (4) “Respondent” means an individual who has been reported to be the perpetrator of Title IX misconduct as defined in this section.

UWS 11.13(5) (5) “Sexual harassment” means conduct on the basis of sex that satisfies any of the following:

UWS 11.13(5)(a) (a) An employee of the institution conditions the provision of an aid, benefit, or service of the institution directly or indirectly on an individual’s participation in unwelcome sexual conduct.

UWS 11.13(5)(b) (b) Unwelcome conduct of a sexual nature directed towards a student, an employee, or a person participating in a program or activity of the university that, when using the legal “reasonable person” standard, the conduct is so severe, pervasive, and objectionably offensive that it effectively denies the person equal access to the institution’s education program or activity.

UWS 11.13(6) (6) “Title IX misconduct” means sexual assault, stalking, dating violence, or domestic violence as defined in this chapter and sexual harassment as defined in sub. (5).

UWS 11.13 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (intro.) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.14 UWS 11.14 Dismissal for cause or lesser discipline for Title IX misconduct.

UWS 11.14(1) (1) An academic staff member may be dismissed for cause, or subject to lesser discipline, for Title IX misconduct as the term is defined in s. UWS 11.13.

UWS 11.14(2) (2) Title IX misconduct allegations against academic staff shall follow the disciplinary procedure in ss. UWS 11.13 to 11.26. An academic staff member may be dismissed only for just cause and may otherwise be disciplined only after due notice and hearing.

UWS 11.14(3) (3) The board’s policy is that members of the academic staff are entitled to enjoy and exercise all rights of United States citizens and to perform their duties in accordance with appropriate professional codes of ethics. This policy shall be observed in determining whether or not just cause for dismissal, or grounds for other discipline, exists. The burden of proof of the existence of just cause for a dismissal, or grounds for other discipline, is on the administration.

UWS 11.14(4) (4) The academic staff member is presumed to be not responsible for the alleged Title IX misconduct until a final decision regarding responsibility is made at the conclusion of the disciplinary process.

UWS 11.14 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.15 UWS 11.15 Application of Title IX misconduct disciplinary procedure. This disciplinary procedure for Title IX misconduct will be used only when all of the following requirements are met: