Chapter UWS 4

UWS 4.14   Dismissal of formal Title IX complaint and related appeal.

UWS 4.15   Investigation of Title IX misconduct allegations.

UWS 4.16   Review of evidence.

UWS 4.17   Final investigative report.

UWS 4.18   Standing faculty committee and hearing examiner.

UWS 4.19   Adequate due process.

UWS 4.20   Procedural guarantees.

UWS 4.21   Hearing committee or hearing examiner findings and recommendations to the chancellor.

UWS 4.22   Chancellor’s decision.

UWS 4.23   Appeal to board.

UWS 4.24   Suspension from duties.

subch. I of ch. UWS 4 Subchapter I — General

UWS 4.01 UWS 4.01 Dismissal for cause.

UWS 4.01(1) (1) Any faculty member having tenure may be dismissed only by the board and only for just cause and only after due notice and hearing. Any faculty member having a probationary appointment may be dismissed prior to the end of the faculty member’s term of appointment only by the board and only for just cause and only after due notice and hearing. A decision not to renew a probationary appointment or not to grant tenure does not constitute a dismissal.

UWS 4.01(2) (2) A faculty member is entitled to enjoy and exercise all the rights and privileges of a United States citizen, and the rights and privileges of academic freedom as they are generally understood in the academic community. This policy shall be observed in determining whether or not just cause for dismissal exists. The burden of proof of the existence of just cause for a dismissal is on the administration.

UWS 4.01(3) (3) Faculty dismissal for cause and lesser discipline based on allegations of Title IX misconduct, as defined in s. UWS 4.11, shall be governed by ss. UWS 4.11 to UWS 4.24.

UWS 4.01 History History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; CR 20-059: am. (1), cr. (3) Register May 2021 No. 785, eff. 6-1-21; correction in (1) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 4.015 UWS 4.015 Definitions. In this chapter:

UWS 4.015(1) (1) “Clear and convincing evidence” means information that would persuade a reasonable person to have a firm belief that a proposition is more likely true than not true. It is a higher standard of proof than “preponderance of the evidence.”

UWS 4.015(2) (2) “Complaint” means an allegation against a faculty member reported to an appropriate university official.

UWS 4.015(3) (3) “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 this section. 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.

UWS 4.015(4) (4) “Consult” or “consulting” means thoroughly reviewing and discussing the relevant facts and discretionary issues.

UWS 4.015(5) (5) “Dating violence” means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant; and where the existence of such a relationship shall be determined based on a consideration of the following factors: the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

UWS 4.015(6) (6) “Domestic violence” means felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the complainant, by a person with whom the complainant shares a child in common, by a person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner, by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of Wisconsin, or by any other person against an adult or youth complainant who is protected from that person’s acts under the domestic or family violence laws of Wisconsin as per ss. 813.12 (1) (am) and 968.075, Stats.

UWS 4.015(6m) (6m) “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.

UWS 4.015(7) (7) “Preponderance of the evidence” means information that would persuade a reasonable person that a proposition is more probably true than not. It is a lower standard of proof than “clear and convincing evidence.”

UWS 4.015(9) (9) “Sexual assault” means an offense that meets any of the following definitions:

UWS 4.015(9)(a) (a) “Rape” means the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of the complainant, without the consent of the complainant.

UWS 4.015(9)(b) (b) “Fondling” means the touching of the private body parts of the complainant for the purpose of sexual gratification, without the consent of the complainant, including instances where the complainant is incapable of giving consent because of the complainant’s age or because of the complainant’s temporary or permanent mental incapacity.

UWS 4.015(9)(c) (c) “Incest” means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law as provided in s. 944.06, Stats.

UWS 4.015(9)(d) (d) “Statutory rape” means sexual intercourse with a complainant who is under the statutory age of consent as provided in s. 948.02, Stats.

UWS 4.015(10) (10) “Sexual exploitation” means attempting, taking or threatening to take, nonconsensual sexual advantage of another person . Examples include:

UWS 4.015(10)(a) (a) Engaging in the following conduct without the knowledge and consent of all participants:

UWS 4.015(10)(a)1. 1. Observing, recording, or photographing private body parts or sexual activity of the complainant.

UWS 4.015(10)(a)2. 2. Allowing another person to observe, record, or photograph sexual activity or private body parts of the complainant.

UWS 4.015(10)(a)3. 3. Otherwise distributing recordings, photographs, or other images of the sexual activity or private body parts of the complainant.

UWS 4.015(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 4.015(10)(c) (c) Dishonesty or deception regarding the use of contraceptives or condoms during the course of sexual activity.

UWS 4.015(10)(d) (d) Inducing incapacitation through deception for the purpose of making the complainant vulnerable to non-consensual sexual activity.

UWS 4.015(10)(e) (e) Coercing the complainant to engage in sexual activity for money or anything of value.

UWS 4.015(10)(f) (f) Threatening distribution of any of the following, to coerce someone into sexual activity or providing money or anything of value:

UWS 4.015(10)(f)1. 1. Photos, videos, or recordings depicting private body parts or sexual activity of the complainant.

UWS 4.015(10)(f)2. 2. Other information of a sexual nature involving the complainant, including sexual history or sexual orientation.

UWS 4.015(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 4.015 History History: CR 15-061: cr. Register June 2016 No. 726, eff. 7-1-16; correction in (2) and (8) under 35.17, Stats., Register June 2016 No. 726; CR 20-059: r. and recr. (intro.), (2) to (4), am. (5), (6), cr. (6m), r. (8), r. and recr. (9), (10), am. (11) Register May 2021 No. 785, eff. 6-1-21; correction in (5), (10) (a) 2. made under s. 35.17, Stats., Register May 2021 No. 785.

subch. II of ch. UWS 4 Subchapter II — Procedures for Faculty Dismissal and Discipline in Non-Title IX Cases

UWS 4.016 UWS 4.016 Subchapter II definitions. In this subchapter:

UWS 4.016(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 and s. UWS 4.015.

UWS 4.016(2) (2) “Sexual harassment” means conduct on the basis of sex that satisfies any of the following:

UWS 4.016(2)(a) (a) Quid pro quo sexual harassment.

UWS 4.016(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; or

UWS 4.016(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 4.016(2)(b) (b) Hostile environment sexual harassment.

UWS 4.016(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; or

UWS 4.016(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 4.016 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register May 2021.

UWS 4.02 UWS 4.02 Responsibility for charges.

UWS 4.02(1) (1) Whenever the chancellor of an institution within the University of Wisconsin system receives a complaint against a faculty member which the chancellor deems substantial and which, if true, might lead to dismissal under s. UWS 4.01, the chancellor, or designee, shall within a reasonable time initiate an investigation and shall, prior to reaching a decision on filing charges, offer to discuss the matter informally with the faculty member. For complaints of sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the chancellor, or designee, shall appoint the Title IX Coordinator, or designee, to initiate an investigation in accordance with applicable policies. The chancellor, or designee, shall also offer to discuss the matter informally with the complainant, and provide information regarding rights under this chapter. Both the faculty 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. A faculty member may be dismissed only after receipt of a written statement of specific charges from the chancellor as the chief administrative officer of the institution and, if a hearing is requested by the faculty member, in accordance with the provisions of this chapter. If the faculty member does not request a hearing, action shall proceed along normal administrative lines but the provisions of ss. UWS 4.02, 4.09, and 4.10 shall still apply.

UWS 4.02(2) (2) Any formal statement of specific charges for dismissal sent to a faculty member shall be accompanied by a statement of the appeal procedures available to the faculty member.

UWS 4.02(3) (3) The statement of 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 statement of charges includes sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the statement shall be provided to the complainant upon request, except as may be precluded by applicable state or federal law.

UWS 4.02 History History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; correction in (3) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; 2015 Wis. Act 330 ss. 6, 20: am. (1), (3) Register April 2016 No. 724, eff. 5-1-16; CR 15-061: am. (1), (3) Register June 2016 No. 726, eff. 7-1-16; merger of (3) treatments by 2015 Wis. Act 330 and CR 11-061 made under s. 13.92 (4) (bm) Register September 2016 No. 729; CR 20-059: am. (1), (3) Register May 2021 No. 785, eff. 6-1-21.

UWS 4.03 UWS 4.03 Standing faculty committee. The faculty of each institution shall provide a standing committee charged with hearing dismissal cases and making recommendations under this chapter. This standing faculty committee shall operate as the hearing agent for the board 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 law and decision to the board according to s. UWS 4.07.

UWS 4.03 History History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; correction made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; correction made under s. 13.93 (2m) (b) 7., Stats., Register May 2007 No. 617.

UWS 4.04 UWS 4.04 Hearing. If the faculty member requests a hearing within 20 days of notice of the statement of charges (25 days if notice is by first class mail and publication), such a hearing shall be held not later than 20 days after the request except that this time limit may be enlarged by mutual written consent of the parties, or by order of the hearing committee. The request for a hearing shall be addressed in writing to the chairperson of the standing faculty committee created under s. UWS 4.03.

UWS 4.04 History History: Cr. Register, January, 1975, No. 229, eff. 2-1-75.

UWS 4.05 UWS 4.05 Adequate due process.

UWS 4.05(1) (1) A fair hearing for a faculty member whose dismissal is sought under s. UWS 4.01 shall include the following:

UWS 4.05(1)(a) (a) Service of written notice of hearing on the specific charges at least 10 days prior to the hearing;

UWS 4.05(1)(b) (b) A right to the names of witnesses and of access to documentary evidence upon the basis of which dismissal is sought;

UWS 4.05(1)(c) (c) A right to be heard in the faculty member’s defense;

UWS 4.05(1)(d) (d) A right to an advisor, counsel, or other representatives, and to offer witnesses;

UWS 4.05(1)(e) (e) A right to confront and cross-examine adverse witnesses. If the complaint involves sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the hearing committee may reasonably restrict the faculty member or the complainant from questioning each other;

UWS 4.05(1)(f) (f) A verbatim record of all hearings, which might be a sound recording, provided at no cost;

UWS 4.05(1)(g) (g) Written findings of fact and decision based on the hearing record;

UWS 4.05(1)(h) (h) Admissibility of evidence governed by s. 227.45 (1) to (4), Stats.

UWS 4.05(2) (2) If the complaint involves sexual harassment, sexual assault, dating violence, domestic violence, or stalking, the complainant shall have all the rights provided to the faculty member in sub. (1) (a) to (h), except as may be precluded by applicable state or federal law.

UWS 4.05 History History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; correction in (1) (h) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; correction in (1) (h) made under s. 13.93 (2m) (b) 7., Stats., Register May 2007 No. 617; CR 15-061: am. (1) (d), (e), cr. (2) Register June 2016 No. 726, eff. 7-1-16; correction in (2) under 35.17, Stats., Register June 2016 No. 726; CR 20-059: am. (1) (c), (e) Register May 2021 No. 785, eff. 6-1-21.

UWS 4.06 UWS 4.06 Procedural guarantees.

UWS 4.06(1) (1) Any hearing held shall comply with the requirements set forth in s. UWS 4.05. The following requirements shall also be observed:

UWS 4.06(1)(a) (a) The burden of proof of the existence of just cause is on the administration or its representatives;

UWS 4.06(1)(am) (am) For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the standard of proof shall be a preponderance of the evidence;

UWS 4.06(1)(b) (b) No faculty member 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 be qualified to sit on the committee in that case;

UWS 4.06(1)(c) (c) The hearing shall be closed unless the faculty 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 4.06(1)(d) (d) The faculty hearing 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 faculty hearing committee members disqualify themselves or are disqualified, the remaining members may select a number of other members of the faculty equal to the number who have been disqualified to serve, except that alternative methods of replacement may be specified in the rules and procedures adopted by the faculty establishing the standing committee under s. UWS 4.03;

UWS 4.06(1)(e) (e) The faculty hearing committee 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 4.06(1)(f) (f) If the faculty 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 rules and procedures adopted by the faculty of the institution in establishing the standing faculty committee under s. UWS 4.03;

UWS 4.06(1)(g) (g) If a proceeding on charges against a faculty member not holding tenure is not concluded before the faculty member’s appointment would expire, the faculty member may elect that such proceeding be carried to a final decision. Unless the faculty member so elects in writing, the proceeding shall be discontinued at the expiration of the appointment;

UWS 4.06(1)(h) (h) If a faculty 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;