Chapter UWS 4

UWS 4.11 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21; corrections in (6) made under ss. 13.92 (4) (b) 7. and 35.17, Stats., and correction in (3) made under s. 13.92 (4) (b) 12., Stats., Register May 2021 No. 785.

UWS 4.12 UWS 4.12 Dismissal for cause or lesser discipline for Title IX misconduct.

UWS 4.12(1) (1) The board may dismiss a faculty member for cause, or impose lesser discipline on a faculty member, for Title IX misconduct as defined in s. UWS 4.11.

UWS 4.12(2) (2) Title IX misconduct allegations against faculty shall follow the disciplinary procedure in ss. UWS 4.11 to 4.24. The board may dismiss a faculty member having tenure only for just cause and may otherwise discipline a faculty member having tenure only after due notice and hearing. The board may dismiss a faculty member having a probationary appointment prior to the end of the faculty member’s term of appointment only for just cause and may otherwise discipline the faculty member only after due notice and hearing.

UWS 4.12(3) (3) 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. These rights and privileges shall be observed in determining whether or not just cause for dismissal, or grounds for other discipline, exists.

UWS 4.12(4) (4) The faculty 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. The burden of proof of the existence of just cause for a dismissal, or of grounds for other discipline, is on the university administration.

UWS 4.12 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 4.13 UWS 4.13 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:

UWS 4.13(1) (1) There is a formal Title IX complaint alleging Title IX misconduct on the basis of sex.

UWS 4.13(2) (2) The conduct occurred in the United States.

UWS 4.13(3) (3) The conduct occurred within a university’s education program or activity.

UWS 4.13(4) (4) The complainant must be participating in or attempting to participate in the education program or activity of the university at the time of filing the complaint.

UWS 4.13(5) (5) The complainant or Title IX coordinator has submitted a formal Title IX complaint.

UWS 4.13 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.

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

UWS 4.14(1) (1) The university shall dismiss a formal Title IX complaint consisting of allegations that meet any of the following conditions:

UWS 4.14(1)(a) (a) The alleged conduct would not constitute Title IX misconduct if proved.

UWS 4.14(1)(b) (b) The alleged conduct did not occur in a university program or activity.

UWS 4.14(1)(c) (c) The alleged conduct did not involve actions against someone physically located in the United States.

UWS 4.14(2) (2) The university may dismiss a formal Title IX complaint when any of the following applies:

UWS 4.14(2)(a) (a) The complainant formally requests in writing to withdraw the formal Title IX complaint.

UWS 4.14(2)(b) (b) The faculty member is no longer employed by the university.

UWS 4.14(2)(c) (c) Specific circumstances prevent the university from gathering evidence sufficient to reach a determination on the allegations contained in the formal Title IX complaint.

UWS 4.14(3) (3) The university generally shall decide whether to dismiss a formal Title IX complaint within 30 days of receipt of the formal Title IX complaint, but the university may extend that timeline as necessary. If a formal Title IX complaint is dismissed, then the university shall provide notice of the dismissal and reasons therefore to the faculty member and complainant in writing.

UWS 4.14(4) (4) Within 20 days of receipt of the notice of dismissal, the complainant may appeal the dismissal by filing a written appeal with the chancellor. The complainant may appeal on any of the following bases:

UWS 4.14(4)(a) (a) Procedural irregularity that affected the outcome of the matter.

UWS 4.14(4)(b) (b) New evidence that was not reasonably available at the time of the dismissal that could affect the outcome of the matter.

UWS 4.14(4)(c) (c) The university employee making the dismissal decision had a conflict of interest or bias for the faculty member or against the complainant, or against complainants generally, that affected the dismissal decision.

UWS 4.14(5) (5) The chancellor shall provide the faculty member and complainant the opportunity to provide a written statement supporting or challenging the dismissal. The chancellor shall simultaneously issue a decision to the complainant and the faculty member within 30 days of receipt of a written appeal. The chancellor’s decision shall include the chancellor’s rationale for the decision and shall be final.

UWS 4.14(6) (6) The dismissal of a formal Title IX complaint does not preclude the university from otherwise pursuing discipline against the faculty member under other administrative rules or university policies.

UWS 4.14 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (3) made under s. 13.92 (4) (b) 12., Stats., Register May 2021 No. 785.

UWS 4.15 UWS 4.15 Investigation of Title IX misconduct allegations.

UWS 4.15(1) (1) Unless the university dismisses a formal Title IX complaint, the university shall appoint an investigator to conduct an investigation of the allegations in the formal Title IX complaint.

UWS 4.15(2) (2) The investigator shall provide the faculty member and the complainant with a notice of investigation. The notice shall include all of the following:

UWS 4.15(2)(a) (a) The grievance process, including informal resolution options.

UWS 4.15(2)(b) (b) The allegations of Title IX misconduct with sufficient detail for the faculty member to prepare a response to the allegations, including the identity of the complainant as well as the date and location of the incident if available.

UWS 4.15(2)(c) (c) A statement affirming the faculty member is presumed not responsible for the alleged violation.

UWS 4.15(2)(d) (d) The faculty member and complainant have the right to an advisor of their choice.

UWS 4.15(2)(e) (e) The faculty member and complainant have the right to inspect and review the evidence.

UWS 4.15(2)(f) (f) Information about any code of conduct rules which prohibit the faculty member or the complainant from knowingly making false statements or submitting false information during the disciplinary process.

UWS 4.15(3) (3) The faculty member and complainant shall receive an amended notice of investigation any time additional charges are added during the course of an investigation. Formal Title IX complaints involving more than one complainant or respondent may be consolidated if they arise out of the same facts or circumstances.

UWS 4.15(4) (4) The university’s investigator shall do all of the following:

UWS 4.15(4)(a) (a) Provide both the faculty member and the complainant an equal opportunity to provide witnesses, including fact and expert witnesses, who may be interviewed by the investigator, and other inculpatory and exculpatory evidence.

UWS 4.15(4)(b) (b) Not restrict the ability of either the faculty member or complainant to discuss the allegations under investigation or to gather and present relevant evidence.

UWS 4.15(4)(c) (c) Provide the faculty member and complainant the same opportunity to be accompanied by an advisor of their choice during meetings relating to the investigation but may limit the participation by the advisor so long as those limits are applied equally.

UWS 4.15(4)(d) (d) Provide both the faculty member and the complainant an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal Title IX complaint, including evidence upon which the university does not intend to rely in reaching a determination regarding responsibility, and inculpatory or exculpatory evidence whether obtained from a faculty member, complainant, or other source, so that the faculty member and complainant can meaningfully respond to the evidence prior to conclusion of the investigation.

UWS 4.15(5) (5) As part of its investigation and disciplinary process, the university may not access, consider, disclose, or otherwise use a faculty member’s or complainant’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the faculty member or complainant, unless the university obtains the faculty member’s or complainant’s voluntary, written consent to do so in relation to the investigation and disciplinary process.

UWS 4.15(6) (6) The university’s investigator generally shall complete the investigation and issue a final investigative report within 90 days of the investigator’s appointment. However, the investigator may extend the investigation’s time frame where circumstances warrant.

UWS 4.15 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (1), (3), (4) (d) made under s. 13.92 (4) (b) 12., Stats., Register May 2021 No. 785.

UWS 4.16 UWS 4.16 Review of evidence.

UWS 4.16(1) (1) Prior to completion of the final investigative report, the investigator shall send to the faculty member and complainant and their respective advisors, if any, the evidence gathered during the investigation for inspection and review by the faculty member and the complainant. The evidence may be provided in an electronic format or a hard copy. The evidence provided includes evidence upon which the university does not intend to rely in reaching a determination regarding responsibility, and inculpatory or exculpatory evidence, whether obtained from the faculty member, complainant or other source, to permit the faculty member and complainant to meaningfully respond to the evidence prior to conclusion of the investigation.

UWS 4.16(2) (2) The faculty member and the complainant shall be provided at least 10 days to submit a written response to the evidence. The investigator shall consider any written responses prior to completion of the final investigative report.

UWS 4.16 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 4.17 UWS 4.17 Final investigative report. The investigator shall create a final investigative report that fairly summarizes relevant evidence and send the report to the faculty member, the complainant, and their advisors, if any, for their review and response at least 10 days prior to a hearing. The written report shall be delivered simultaneously to the faculty member and complainant. The university shall, upon receipt of the final investigative report, proceed to schedule a live hearing on the matter. A hearing shall be conducted unless both the faculty member and the complainant waive, in writing, the right to such a hearing.

UWS 4.17 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 4.18 UWS 4.18 Standing faculty committee and hearing examiner.

UWS 4.18(1) (1) The chancellor of each university, in consultation with faculty representatives, shall adopt policies providing for the designation of a Title IX conduct hearing examiner. The chancellor shall select a hearing examiner pursuant to these policies to hear faculty dismissal and discipline cases. Additionally, the faculty of each university shall provide a standing hearing committee charged with hearing faculty dismissal and discipline cases. The chancellor shall appoint the presiding member of the hearing committee, who may be a hearing examiner. The university shall decide whether a hearing examiner or a hearing committee will hear the matter.

UWS 4.18(2) (2) The hearing committee or the hearing examiner described in sub. (1) shall conduct the hearing, make a verbatim record of the hearing, and transmit such record along with factual findings and decision to the chancellor. The hearing shall be held not later than 45 days after completion of the final investigative report except that this time limit may be extended by the hearing committee or the hearing examiner.

UWS 4.18 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 4.19 UWS 4.19 Adequate due process.

UWS 4.19(1) (1) A fair hearing for a faculty member against whom dismissal or other discipline is sought shall include all of the following:

UWS 4.19(1)(a) (a) Service of written notice of a live hearing on the allegations in the formal Title IX complaint at least 10 days prior to the hearing.

UWS 4.19(1)(b) (b) A right to the names of witnesses and of access to documentary and other evidence upon the basis of which dismissal or other discipline is sought.

UWS 4.19(1)(c) (c) A right to be heard in the faculty member’s defense.

UWS 4.19(1)(d) (d) A right to an advisor, counsel, or other representatives, and to offer witnesses. The faculty member’s advisor or counsel may ask all witnesses relevant questions and follow-up questions, including those challenging credibility. Credibility determinations, however, may not be made based on a person’s status as a complainant, respondent, or witness. If the faculty member does not have an advisor, the university shall provide the faculty member, without charge, an advisor of the university’s choice to conduct cross-examination on behalf of the faculty member. The advisor may be an attorney.

UWS 4.19(1)(e) (e) A right to confront and cross-examine adverse witnesses. The faculty member’s or complainant’s advisor shall conduct cross examination directly, orally, and in real time. The faculty member and the complainant may not personally conduct cross examination. If the faculty member, the complainant, or a witness does not submit to cross-examination at the hearing, the hearing committee or the hearing examiner may not rely on any statement of the faculty member, complainant, or witness in reaching its findings and recommendations. However, the hearing committee or hearing examiner may not draw a negative inference in reaching its findings and recommendations based solely on the absence of a faculty member, complainant, or witness from the hearing or refusal to answer cross-examination or other questions.

UWS 4.19(1)(f) (f) A verbatim record of all hearings, which might be a sound recording, made available at no cost for inspection and review.

UWS 4.19(1)(g) (g) Written findings of fact and recommendations based on the hearing record. The written findings of fact and recommendations shall include all of the following:

UWS 4.19(1)(g)1. 1. Identification of the allegations potentially constituting Title IX misconduct.

UWS 4.19(1)(g)2. 2. A description of the procedural steps taken from the receipt of the formal Title IX complaint through the hearing committee’s or hearing examiner’s completion of written findings and recommendations, including any notifications to the faculty member and the complainant, interviews with the faculty member, the complainant, and witnesses, site visits, methods used to gather evidence, and hearings held.

UWS 4.19(1)(g)3. 3. Conclusions regarding the application of the university’s conduct rules and policies to the facts; a statement of, and rationale for, the result as to each allegation, including a recommendations regarding responsibility, any disciplinary sanction recommended to be imposed, and whether remedies designed to restore or preserve equal access to the university’s educational program or activity will be provided to the complainant.

UWS 4.19(1)(g)4. 4. The university’s procedures and permissible bases for complainant and employee to appeal.

UWS 4.19(1)(h) (h) Admissibility of evidence is governed by s. 227.45 (1) to (4), Stats. Only relevant questions may be asked of the faculty member, the complainant, and any witnesses. The hearing committee or hearing examiner shall determine whether a question is relevant and explain the decision to exclude a question as not relevant. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions or evidence are offered to prove that someone other than the faculty member committed the conduct alleged by the complainant, or unless the questions or evidence concern specific incidents of the complainant’s prior sexual behavior with the faculty member and are offered to prove consent.

UWS 4.19(1)(i) (i) The hearing may be conducted with all participants physically present in the same location, or at the hearing committee’s or hearing examiner’s discretion, any or all participants may appear at the hearing virtually, with technology enabling the participants simultaneously to see and hear each other. Upon the faculty member’s request, the university shall provide for the hearing to occur with faculty member and complainant located in separate rooms with technology enabling the hearing committee or hearing examiner, the faculty member, and the complainant to simultaneously see and hear witnesses answering questions.

UWS 4.19(2) (2) The complainant shall have all the rights provided to the faculty member in sub. (1) (a) to (i).

UWS 4.19 History History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (1) (a), (g) 2. made under s. 13.92 (4) (b) 12., Stats., and correction in (1) (h) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 4.20 UWS 4.20 Procedural guarantees.

UWS 4.20(1) (1) Any hearing held shall comply with the requirements set forth in s. UWS 4.19. All of the following requirements shall also be observed:

UWS 4.20(1)(a) (a) The burden of proof of the existence of just cause to support dismissal, or of grounds to support other discipline, is on the university administration.

UWS 4.20(1)(am) (am) The standard of proof shall be a preponderance of the evidence.

UWS 4.20(1)(b) (b) No faculty member who participated in the investigation of a formal Title IX complaint, or who is a material witness, shall be qualified to sit on the hearing committee addressing that complaint. No university employee or other person who participated in the investigation of a formal Title IX complaint, or who is a material witness, shall be qualified to serve as the hearing examiner addressing that complaint.

UWS 4.20(1)(c) (c) The hearing shall be closed unless the faculty member or the complainant requests an open hearing, in which case it shall be open.

UWS 4.20 Note Note: See subch. V of ch. 19, Stats., Open Meetings of Governmental Bodies.

UWS 4.20(1)(d) (d) The hearing committee may, on motion of the complainant or the faculty member, 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 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 this rule.

UWS 4.20(1)(e) (e) The hearing committee or the hearing examiner may 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 unless the person holding the privilege has waived it. The hearing committee or the hearing examiner shall follow the evidentiary rules in s. UWS 4.19 (1) (h).

UWS 4.20(1)(f) (f) If the hearing committee requests, the chancellor shall provide legal counsel after consulting with the hearing committee concerning its wishes in this regard. The function of legal counsel shall be to advise the hearing committee, consult with them on legal matters, and such other responsibilities as shall be determined by the hearing committee within the provisions of the rules and procedures adopted by the faculty of the institution in establishing the standing faculty committee under this policy.

UWS 4.20(1)(g) (g) If the Title IX disciplinary process described in ss. UWS 4.11 to 4.24 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 process be carried to a final decision. Unless the faculty member so elects in writing, the process shall be discontinued at the expiration of the appointment.

UWS 4.20(1)(h) (h) Nothing in this section shall prevent the settlement of cases by mutual agreement between the university administration, the complainant, and the faculty member.

UWS 4.20(1)(i) (i) Delay or adjournment of the hearing for good cause may be granted. Good cause includes the need for any of the following: