Chapter 36

36.12(2)(a)4. 4. Provide periods within which the complainant and the institution must act for each procedural step leading to the issuance of a final decision and for appeal of the final decision to the chancellor of the institution.

36.12(2)(b) (b) The board shall establish policies and procedures for the appeal of the chancellor’s or dean’s decision to the board.

36.12 History History: 1989 a. 186; 1997 a. 237; 2015 a. 55.

36.12 Annotation The exclusion of contraceptives from an employer or college or university sponsored benefits program that otherwise provides prescription drug coverage violates Wisconsin law prohibiting sex discrimination in employment and in higher education, ss. 111.31 to 111.395, 36.12, and 38.23. OAG 1-04.

36.12 Annotation Student body diversity is a compelling state interest that can justify the use of race in university admissions. A race-conscious admissions program cannot use a quota system, but may consider race or ethnicity as a plus factor for an applicant, without insulating the individual from comparison with all other candidates for the available seats. An admissions program must be flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Race-conscious admissions policies must be limited in time. Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003). See also Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003). But see Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. ___, 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023).

36.12 Annotation Under Grutter, 539 U.S. 306 (2003), strict scrutiny must be applied to any university admissions program using racial categories or classifications. Once the university has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal. Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice. Grutter did not hold that good faith would forgive an impermissible consideration of race. Fisher v. University of Texas at Austin, 570 U.S. 297, 133 S. Ct. 2411, 186 L. Ed. 2d 474 (2013). See also Fisher v. University of Texas at Austin, 579 U.S. 365, 136 S. Ct. 2198, 195 L. Ed. 2d 511 (2016). But see Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. ___, 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023).

36.12 Annotation The Court has permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and at some point they must end. In this case, the respondents’ admissions systems, however well-intentioned and implemented in good faith, failed each of those criteria and must therefore be invalidated under the equal protection clause of the 14th amendment to the U.S. Constitution. Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. ___, 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023).

36.14 36.14 Wisconsin distinguished professorships.

36.14(1) (1) The board may establish distinguished professorships under this section.

36.14(2) (2) The board may pay under this section the salary and fringe benefit costs of the professor holding the distinguished professorship and of any graduate assistant assigned to the professor, and the equipment, supplies and travel costs of the professor and the graduate assistants assigned to the professor.

36.14(4) (4) The board shall ensure that at least 3 of the professors awarded distinguished professorships under this section after August 9, 1989, are not employed by the board when they are awarded the professorships.

36.14 History History: 1987 a. 27; 1989 a. 31; 2011 a. 32.

36.15 36.15 Academic staff appointments.

36.15(1) (1) Definitions. In this section:

36.15(1)(a) (a) “Administrative appointment” means an academic staff appointment for a fixed or indefinite term granted to a system, campus, college, school or other divisional officer involved in policy development or execution and to persons involved in directing, organizing or supervising higher education related activities.

36.15(1)(b) (b) “Professional appointment” means an academic staff appointment for a fixed or indefinite term granted to a professional employee who is involved in the guidance or counseling of students, assisting the faculty in research, public service or in the instruction of students or who is involved in other professional duties which are primarily associated with institutions of higher education; including, but not limited to, such employment titles as visiting faculty, clinical staff, lecturer, scientist, specialist and such other equivalent titles as the board approves.

36.15(2) (2) Appointments. Appointments under this section shall be made by the board, or by an appropriate official authorized by the board, under policies and procedures established by the board. The policies for indefinite appointments shall provide for a probationary period, permanent status and such other conditions of appointment as the board establishes.

36.15(3) (3) Procedural guarantees. A person having an academic staff appointment for a term may be dismissed prior to the end of the appointment term only for just cause and only after due notice and hearing. A person having an academic staff appointment for an indefinite term who has attained permanent status may be dismissed only for just cause and only after due notice and hearing. In such matters the action and decision of the board, or the appropriate official authorized by the board, shall be final, subject to judicial review under ch. 227. The board shall develop procedures for notice and hearing which shall be promulgated as rules under ch. 227.

36.15 History History: 1973 c. 335 and Supp; 1985 a. 332; 1989 a. 31; 2011 a. 32; 2013 a. 20 ss. 2365m, 9448; 2015 a. 55.

36.15 Cross-reference Cross-reference: See also ch. UWS 3, 9, 10, 11, 12, and 19, Wis. adm. code.

36.17 36.17 Limited appointments.

36.17(1) (1) An appointment to a position listed in sub. (2) shall be a limited appointment and the appointment shall be at the pleasure of the board. A faculty member who has been granted tenure or a person holding an academic staff appointment under s. 36.15 shall not lose that appointment by accepting a limited appointment.

36.17(2) (2) Limited appointments apply to the following positions: president, provost, vice president, associate vice president, assistant vice president, chancellor, vice chancellor, associate chancellor, assistant chancellor, associate vice chancellor, assistant vice chancellor, college campus dean, secretary of the board, associate secretary of the board, assistant secretary of the board, trust officer and assistant trust officer and such other administrative positions as the board determines at the time of the appointment.

36.17 History History: 1973 c. 335; 1997 a. 237; 2015 a. 55.

36.17 Cross-reference Cross-reference: See also chs. UWS 15 and 19, Wis. adm. code.

36.19 36.19 Other appointments. The board may make or authorize fixed term appointments for student assistants and employees in training, such as residents, interns, post-doctoral fellows or trainees or associates. Appointments made under this section shall not be subject to s. 36.15.

36.19 History History: 1973 c. 335; 2015 a. 55.

36.19 Cross-reference Cross-reference: See also ch. UWS 16, Wis. adm. code.

36.21 36.21 Termination due to certain budget or program changes. Notwithstanding s. 36.15, the board may, with appropriate notice, terminate any faculty or academic staff appointment when such an action is deemed necessary due to a budget or program decision requiring program discontinuance, curtailment, modification, or redirection. No person may be employed at the institution within 2 years to perform reasonably comparable duties to those of the person whose appointment was terminated without first offering such person a reappointment. The board, after consultation with the faculty and chancellor of each institution, shall adopt procedures to be followed in the event of termination of academic staff under this section and the board may adopt procedures, consistent with s. 36.22, to be followed in the event of termination of faculty under this section and s. 36.22.

36.21 History History: 1973 c. 335; 2015 a. 55.

36.22 36.22 Layoff or termination of faculty member due to certain budget or program changes.

36.22(1) (1) Definitions. In this section:

36.22(1)(a) (a) “Layoff” means an indefinite suspension or involuntary reduction in services and compensation of a faculty member’s employment by the system.

36.22(1)(b) (b) “Program change” means program discontinuance, curtailment, modification, or redirection.

36.22(1)(c) (c) “Termination” means the permanent elimination of a faculty member’s employment by the system.

36.22(2) (2) Layoff or termination due to certain circumstances.

36.22(2)(a) (a) The board may, under this section and s. 36.21, with appropriate notice, lay off or terminate any faculty member when such an action is deemed necessary due to a budget or program decision requiring a program change.

36.22(2)(b) (b) Any layoff or termination of a faculty member under par. (a) may be made only in accordance with the provisions of this section and implies the retention of rights indicated in this section. A faculty member who is laid off retains the rights specified in subs. (11) to (16) and a faculty member who is terminated retains the rights specified in subs. (13) and (14).

36.22(2)(c) (c) Nonrenewal of an appointment, regardless of the reason, is not a layoff or termination under this section.

36.22(3) (3) Seniority.

36.22(3)(a) (a) In the case of layoffs of faculty members due to a budget or program decision requiring a program change, layoffs shall follow seniority unless a clear and convincing case is made that program or budget needs dictate other considerations such as the need to maintain diversity of specializations within a department.

36.22(3)(b) (b) The faculty of each institution shall determine the form of seniority that is to be considered. This determination shall be effective uniformly throughout the institution. Seniority may be defined in the following, or in other, ways:

36.22(3)(b)1. 1. Without regard to rank, with seniority established by total years of service in the institution.

36.22(3)(b)2. 2. By rank, and within rank according to total years of service in the institution.

36.22(3)(b)3. 3. By rank, and within rank, according to length of service in the institution at that rank.

36.22(4) (4) Notification.

36.22(4)(a) (a) Each faculty member who is to be laid off shall receive prompt written notification from the chancellor. Prior to issuing a layoff notification, the chancellor shall offer to consult with, and seek advice from, a faculty committee designated or created by the faculty of the institution.

36.22(4)(b) (b) The notification under par. (a) shall include all of the following:

36.22(4)(b)1. 1. A summary of the reasons supporting the need for the layoff.

36.22(4)(b)2. 2. A statement of the basis on which the individual position was selected for elimination and one of the following:

36.22(4)(b)2.a. a. If the position was selected for elimination on the basis of seniority, the criterion used and data supporting the choice.

36.22(4)(b)2.b. b. If the position was selected for elimination on a basis other than seniority, the data and reasons supporting that choice.

36.22(4)(b)3. 3. A statement of the date on which the layoff is to be effective.

36.22(4)(b)4. 4. A copy of the statutes regarding layoff of faculty due to a budget or program decision requiring a program change and such other information or procedural regulations as the chancellor deems appropriate.

36.22(5) (5) Notification period.

36.22(5)(a) (a) In the case of the layoff of faculty due to a budget or program decision requiring a program change, notification must be given at least 12 months in advance of the effective date.

36.22(5)(b) (b) During the 12-month period under par. (a), and prior to entering layoff status, the chancellor may offer as appropriate, and the faculty member may accept, any of the following:

36.22(5)(b)1. 1. Terminal leave and early retirement.

36.22(5)(b)2. 2. Relocation leave accompanied by resignation.

36.22(5)(c) (c) Acceptance of either option under par. (b) terminates the faculty member’s association with the system at the end of the leave period.

36.22(6) (6) Faculty hearing committee. The faculty of each institution shall establish a committee or designate an existing committee to serve as a hearing committee for the purposes of this section. The committee shall consist of faculty members of the institution chosen by the faculty in a manner to be determined by the faculty. This standing faculty committee shall conduct the hearing, make a verbatim record of the hearing, prepare a summary of the evidence, and transmit the record and summary along with its recommended findings of law and decision to the board.

36.22(7) (7) Review hearing.

36.22(7)(a) (a) A faculty member who has been notified of layoff is entitled to a hearing before the faculty hearing committee as to the appropriateness of the decision to lay off that particular individual. The budget or program decisions made to discontinue, curtail, modify, or redirect a program are not subject to review in the hearing.

36.22(7)(b) (b) A hearing must be requested within 20 days of the receipt by the faculty member of notification of layoff. The request shall state with particularity the grounds to be relied upon in establishing the impropriety of the decision. Relevant information supplementary to that contained in the notification statement may be requested. The question to be considered in the review is whether one or more of the following improper factors entered into the decision to lay off:

36.22(7)(b)1. 1. Conduct, expressions, or beliefs on the faculty member’s part that are constitutionally protected, or protected by the principles of academic freedom.

36.22(7)(b)2. 2. Factors proscribed by applicable state or federal law regarding fair employment practices.

36.22(7)(b)3. 3. Improper selection of the individual to be laid off.

36.22(7)(c) (c) For purposes of par. (b), “improper selection” has occurred if material prejudice resulted from any of the following:

36.22(7)(c)1. 1. The procedures required by the board were not followed.

36.22(7)(c)2. 2. Available data bearing materially on the role of the faculty member in the institution were not considered.

36.22(7)(c)3. 3. Unfounded or arbitrary assumptions of fact were made.

36.22(7)(c)4. 4. Immaterial or improper factors other than those specified in par. (b) entered into the decision.

36.22(7)(d) (d) The committee shall determine whether one or more of the improper factors under par. (b) entered significantly into and affected the layoff decision on the basis of the evidence presented. If the committee believes that one or more improper factors may have entered into the layoff decision but is convinced that the same decision would have been reached had the error or errors not occurred, the committee shall find the layoff decision to have been proper. The committee shall report its findings and recommendations to the chancellor and the faculty member.

36.22(8) (8) Hearing procedure.

36.22(8)(a) (a) If the faculty hearing committee requests, the chancellor shall provide legal counsel to the committee for a hearing under sub. (7). The hearing shall be closed unless the faculty member who has been notified of layoff requests an open hearing, in which case it shall be open.

36.22(8)(b) (b) The faculty hearing committee may, on motion of either party, 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 hearing committee under sub. (6). No faculty member who participated in the decision to lay off or who is a material witness may sit in on the faculty hearing committee.

36.22(8)(c) (c) The faculty member shall be given at least 10 days’ notice of the hearing. The hearing shall be held not later than 20 days after the request for hearing except that this time limit may be extended by mutual consent of the parties or by order of the faculty hearing committee.

36.22(8)(d) (d) The faculty member shall have access to the evidence on which the administration intends to rely to support the decision to lay off, and shall be guaranteed all of the following minimal procedural safeguards at the hearing:

36.22(8)(d)1. 1. A right to be heard on his or her own behalf.

36.22(8)(d)2. 2. A right to counsel or other representatives or both, and to offer witnesses.

36.22(8)(d)3. 3. A right to confront and cross-examine adverse witnesses.

36.22(8)(d)4. 4. A verbatim record of the hearing, which might be a sound recording, provided at no cost.

36.22(8)(d)5. 5. Written findings of fact and decision based on the hearing record.

36.22(8)(d)6. 6. Admissibility of evidence as described in s. 227.45 (1) to (4).

36.22(8)(e) (e) Adjournments shall be granted to enable either party to investigate evidence as to which a valid claim of surprise is made.

36.22(9) (9) Recommendations and review by the board. The layoff decision of the chancellor and the recommendations, if any, of the faculty hearing committee, shall be transmitted to the president and to the board and acted upon as follows:

36.22(9)(a) (a) If the faculty member has not requested a hearing before the faculty hearing committee, the chancellor’s decision shall be deemed proper and shall be reported for information to the president and the board.

36.22(9)(b) (b) If the faculty member has requested a hearing and the faculty hearing committee has found the decision to be proper, the report of the faculty hearing committee shall be forwarded to the president and board by the chancellor with a recommendation. The faculty member may request a review by the board, and the board review panel may at its option grant a review. Unless the board review panel grants the request for review, the recommended findings of fact and decision of the faculty hearing committee shall be the final decision of the board.

36.22(9)(c) (c) If after a hearing, the faculty hearing committee’s recommended findings of fact and decision are that the initial decision was improper, the chancellor shall review the matter and give careful consideration to the committee’s finding. If the chancellor accepts the committee’s findings, the chancellor’s decision shall be final. If the chancellor contests the recommended findings that the decision was improper, the verbatim record, a summary of the evidence, and the recommended findings of law and decision shall be forwarded to the board review panel. The chancellor and the faculty member shall be furnished with copies of this material and shall have a reasonable opportunity to file written exceptions to the summary and proposed findings and decision and to argue with respect to them orally and in writing before the board review panel. The board review panel shall hear and decide the case and the decision of the board review panel shall be final.