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 statement 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. 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 (19), and 17.13(2); renumber UWS 17.10 to 17.085; amend UWS 17.02(1) and (2m) and (7) and (9) and (10) and (11) and (12) and (13m) and (15), 17.05, 17.06(2), 17.07(2), 17.08(1) and (2), 17.085(1)(intro.), 17.09 (intro.), 17.11, 17.12(1) and (3) and (4), 17.13(1) and (3) and (4), 17.14, 17.15, 17.16, 17.17(5), 17.18, and 17.19(3) and (5) and (6); and create Subchapter I, UWS 17.02(2r) and (7m) and (8m) and (9m) and (12m), Subchapter II, 17.09(20), Subchapter III, Subchapter IV, and 17.19(2)(d), relating to addressing allegations of sexual misconduct against students of the University of Wisconsin System.
Analysis prepared by the Board of Regents and the University of Wisconsin System.
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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. 36.35 (1), Stats.: ““[T]he board shall promulgate rules under ch.227 governing student conduct and procedures for the administration of violations..” Related statute or rule: N/A
Plain language analysis:
Title IX Sexual Misconduct and Non-Title IX Sexual Misconduct
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 sexual harassment and hostile environment sexual harassment consisting of unwelcome conduct that a reasonable person would determine is 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 must 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 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 if a complainant wishes to withdraw the complaint. A university may still address these dismissed complaints under other code of conduct provisions. 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
Under the current rule, University of Wisconsin System institutions investigate allegations of sexual misconduct through formal investigations, the investigator provides the opportunity for both parties to meet with the investigator to discuss the allegations, and the investigator provides the chancellor with a written report that may include recommended sanctions against the respondent, the chancellor, if appropriate, files dismissal charges against the student, and the student is entitled to a hearing. Under the federal regulations, universities must conduct investigation of formal Title IX complaints via an assigned investigator and must allow the parties an opportunity to present witnesses and evidence as well as review the evidence provided. Investigators must not make official findings of responsibility but may make recommended findings. The new rules incorporate changes to comply with these requirements under the federal regulations.
Hearing
Under the current rule, students found responsible by the investigator for sexual misconduct and subject to sanctions have a right to a hearing before a hearing committee or hearing examiner. The federal regulations require universities conduct live hearings with cross-examination conducted directly, orally, and in real time for all Title IX cases. At a live hearing, if a party does not have an advisor, the institution must provide, without fee or charge, an advisor of the school’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party. The parties’ advisors must perform cross-examination. A hearing officer or hearing committee must preside over the hearing and determine the relevance of each question and explain any decision to exclude a question. The new rule incorporates changes to comply with these requirements under the federal regulations.
Summary of, and comparison with, existing or proposed federal regulation:
