On August 14, 2020 UW System adopted emergency rules and interim policy changes necessary to be in compliance with the new federal Title IX regulations. These changes are temporary in nature only. The permanent rules to modify Chapters UWS 4, 7, 11, and 17 of the Wisconsin Administrative Code (“Procedures for Dismissal,” “Dismissal of Faculty in Special Cases,” “Dismissal of Academic Staff for Cause,” and “Nonacademic Student Misconduct”) to comply with the new federal regulations related to Title IX of the Education Amendments of 1972 requiring that all educational institutions that receive federal funds eliminate sex discrimination in their education programs and activities were submitted to the Governor’s Office and Legislature following the Board of Regents approval on December 10, 2020. Permanent rules will likely take effect in early 2021.
The UW System Office of Compliance and Integrity is working with campuses to provide guidance and training necessary to implement the new procedures. For questions please contact email@example.com.
Outline of Major Substantive Changes
Title IX Sexual Misconduct and Non-Title IX Sexual Misconduct
The new federal regulations narrow the scope of conduct to which Title IX applies but specify that schools are not prohibited from addressing a broader scope of conduct under institution conduct codes. The University of Wisconsin System is committed to continue to address all forms of sexual misconduct, regardless of whether they fall within the scope of federal Title IX. Under the proposed changes, allegations of sexual misconduct that do not fall within the scope of Title IX will continue to be addressed using our student and employee conduct codes.
The new federal regulations require the adoption of the definitions for sexual assault, dating violence, domestic violence, and stalking from the federal Clery and Violence Against Women Acts. Previous UWS code definitions mirrored the Wisconsin criminal statutes.
The definition of sexual harassment for Title IX purposes is redefined to include quid pro quo and “unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectionably offensive…” Prior to these changes the standard mirrored Title VII in requiring that conduct be “severe or pervasive (and objectionably offensive).” Conduct that meets the Title VII standard but does not meet the new Title IX standard will continue to be addressed under UW System conduct codes.
The new federal regulations outline the instances of sexual misconduct to which schools are required to respond. A school must respond when: (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. These final regulations 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 postsecondary institution, such as many fraternity and sorority houses. The proposed code language specifies the procedures to be used by UW System schools in addressing sexual misconduct that meets the new definition and scope of Title IX, as well as the procedures to be used in addressing sexual misconduct that falls outside of the scope of Title IX.
The proposed language adds a definition of sexual exploitation to the list of sexual misconduct that UW System schools will address. This change is in line with the majority of peer institutions, including most Big Ten universities. Sexual exploitation is defined as “a person taking nonconsensual sexual advantage of another person.” Under our current policies, such conduct sometimes falls outside of the definitions of sexual misconduct and must be addressed through other policies. This change will officially recognize sexual exploitation as a form of sexual misconduct.
Title IX Sexual Misconduct Procedures
The new federal regulations require that notice to parties of formal Title IX complaints outline the grievance process, explain the allegations of sexual misconduct with sufficient detail, include a statement that the respondent is presumed not responsible, inform parties of their right to an advisor and to review evidence, and cite to UW System code provisions that prohibit making a false statement.
Mandatory Dismissal and Discretionary Dismissal
The federal regulations define certain Title IX cases which must be dismissed by a school and certain Title IX cases which may be dismissed but are not required to be. Universities are required to dismiss allegations that do not meet the definitions of sexual misconduct under Title IX, that did not occur during the university’s education program or activity, or that occurred outside of the United States. Universities may still address these under other codes of conduct or state law. A school has the discretion to dismiss a complaint if it is formally withdrawn in writing, if the respondent is no longer enrolled or employed by the school, or if circumstances are such that it prevents the school from gathering sufficient evidence to reach a determination. A discretionary dismissal requires notice and specified reasons for discretionary dismissal of the complaint. The parties have the right to appeal a university’s mandatory dismissal or discretionary dismissal of a Title IX complaint. The proposed language incorporates these changes.
Under the federal regulations, investigations of formal Title IX complaints must be conducted by an assigned investigator and must allow the parties an opportunity to present witnesses and evidence as well as review the evidence provided. Investigators are not permitted to make official findings of responsibility but may make recommended findings. The new Title IX regulations require that official findings be made only after a hearing. The proposed language incorporates these changes.
The federal regulations require that all postsecondary schools conduct live hearings with cross-examination conducted directly, orally, and in real time for all Title IX cases. Cross-examination is to be conducted by the party’s advisor; direct party questioning is not permitted. A hearing officer must determine the relevance of each question and explain any decision to exclude a question as not relevant. At a live hearing, 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 proposed language incorporates these changes.