INTRODUCTION

The Department of Education’s proposed changes to Title IX is only the latest move by the
federal government to narrow protections for women and girls. Title IX was enacted
because both the criminal and civil legal systems massively failed to provide victims of
violence and discrimination the immediate safety and ongoing protections critical to
addressing these wrongs.

The proposed Title IX regulations describe sexual harassment as “severe, pervasive, and
objectively offensive”. This stringent definition means that a student suffering one incident
of unwanted touching may not qualify for protection. If a victim is subjected to veiled name
calling or subtle suggestive remarks, whose “objective” standard will apply?
These new regulations erase 20 years of advocacy by the women’s movement which
resulted in the recognition of the traumatic effects of domestic and sexual abuse. The
experience and knowledge gained by thousands of advocates, mental health researchers
and social scientists about the insidious and life-altering damage done by emotional abuse
has been ignored by the Department of Education. The hallmark of violence against women
and girls – the use of power and control in abusive relationships – is a universally
recognized dynamic which will disappear from Title IX protections under these proposed
regulations. How can an individual student ever have equal power in their fight for safety
against a teacher or a university? How can they pay for the attorney they will need to
uphold their civil rights in a proceeding which, under the proposed regulations, looks like it
belongs in a courtroom?

The diminution of rights and remedies available under federal law reinforces barriers to a
life free from violence and abuse for women and girls in Cook County and across the United
States. Victims will be less able to obtain an education if they are not protected in schools
and on campuses. Further, economic viability, which depends on a higher level of
education and higher paying jobs, may be denied these victims. Without a way to
adequately support themselves and their children, victims may be more vulnerable to
domestic violence. The negative consequences of these changes are far-reaching and long-
lasting.

Although the comment period for the proposed Title IX regulations ended on January 30 th ,
you can still make your voice heard. Write to your congresspersons and your senators. Let
them know your opinion of the fundamental injustices against women and girls the
administration is attempting to enshrine with these changes. Tell the Secretary of
Education, Betsy DeVos, what you think of her push to disempower women and girls. We
must continue to speak out and let elected representatives and cabinet officials hear our
voices.

LIFE SPAN’S SUBMITTED COMMENT ON PROPOSED TITLE IX REGULATIONS:

Life Span is a Chicago based non-profit providing counseling, advocacy, and legal
representation to victims of sexual and/or domestic violence. Our agency has a special
project providing services to students in area k-12 schools, colleges, and universities. We
serve about 100 students every year, many of whom suffer sexual harassment and sex
discrimination as defined by Title IX. The proposed regulations will have a chilling effect on
students’ ability to obtain safety and continue their education free of sex discrimination.

Proposed Section 34 CFR 106.30

This change codifies a Supreme Court’s decision in Davis v. Monroe Bd of Ed 526 U.S. 629
(1999) which defines sexual harassment as severe, pervasive, and objectively offensive. In
Davis the perpetrator of this student on student harassment attempted to touch the
victim’s breasts and genitals, made lewd comments, and put a door stop in his pants and
tried to hump the victim, conduct which occurred repeatedly over several months, all in the
presence of teachers.

A perpetrator’s harassing and assaultive behavior should not have to reach this level of
egregiousness to warrant action under Title IX. A student or teacher could engage in daily
name calling or making suggestive remarks and not be subject to a Title IX complaint under
the proposed rules, conduct which is deeply damaging to the victim. A perpetrator could
touch a victim’s genitals or breasts once and escape Title IX sanctions.
This change effectively removes Title IX as a mechanism that protects victims who choose
not to proceed through courts of law. Further, in many state court jurisdictions,
prosecution is not an option, either because the conduct is not a crime, or because
prosecutors elect not to go forward on cases with no physical evidence.

Proposed Section 34 CFR 106.44

This regulation would allow educational institutions to postpone a Title IX investigation
while a concurrent police investigation remains open. Currently, guidance finds this
circumstance not a reason to delay the Title IX investigation. This change could leave
victims unprotected for an unconscionable period of time. Sexual assault is part of the
definition of sexual harassment under Title IX. In Chicago, sexual assault evidence
collection kits take more than a year to be processed, and the police investigation into the
sexual assault can be put on hold until the “rape kit” results are ready. Halting the Title IX
investigation, which is not reliant on physical evidence, could physically endanger victims.
Such a delay will certainly result in increased trauma to the victim, who will be forced to
come in contact with the perpetrator on the school’s campus.

Proposed Section 34 CFR 106.45

Title IX established a non-judicial process for addressing sexual discrimination in
educational settings. The proposed changes encapsulated in 106.45 mimics court
proceedings to the detriment of student victims.

Cross Examination

The proposed regulation allows for cross examination during a live hearing by advisors,
instead of the submission of written questions under which Title IX previously operated.
This places a huge burden on the individual student. They will have to retain an advisor,
most appropriately an attorney, who can conduct a meaningful cross examination.
Presumably, the victim subject to cross will need an attorney to ensure questions are
proper. Attorneys will be cost prohibitive for many students. In contrast, educational
institutions have legal counsel. This presents an extremely unfair contest in which
students will suffer.
Standard of Proof
The elevation of the standard of proof from preponderance to clear and convincing is
inexplicable. Current Title IX guidance strongly recommends the lesser standard as
consistent with other civil rights laws. This new rule and its higher burden of proof is
another barrier for victims seeking to gain safety in class, in their dorms, at school events.

Mediation

Meaningful mediation requires that the parties be of equal power in the negotiation. A
victim seeking redress for sexual assault can never be on equal footing with the
perpetrator. A student will always face an imbalance of power in a negotiation with an
educational institution. There are no standards for the proposed mediation option, and no
proposed qualifications for mediators. Mediation under these circumstances could further
endanger the student victim.