Title IX and Pregnant/Parenting Students
The 37-word core of Title IX of the U.S. Education Amendments of 1972, Public Law 92-318, codified at 20 U.S.C. §§ 1681–1688 (available full-text through the online Government Publishing
Office), provides that:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
Although Title IX has become best known for its application to athletic programs to ensure equitable treatment of female and male student-athletes, including parity in sports participation opportunities
and equivalence in the other benefits ancillary to involvement in athletics, the broader purpose of the statute is to prohibit gender discrimination of any type in educational programs and activities, including bias against pregnant and parenting students.
Historically, even into the 1970s and 1980s before enforcement of Title IX became more commonplace, many schools districts had policies requiring expulsion of pregnant girls or mandating reassignment to alternative schools. The reasons for such sanctions included antiquated rationales such as 1) a fear of “contagious pregnancy” – the statistically unfounded belief that the presence of a pregnant girl would serve as an inducement for other young women in a school to become pregnant (studies have shown that the opposite is true and that a pregnant student serves as a deterrent to pregnancy by peers); 2) a belief that expulsion or mandatory transfer would serve as an effective method to shame the pregnant student and thereby deter other pregnancies; 3) a supposed stigmatizing impact on the school and fear by administrators that the presence on campus of a pregnant girl would stain the reputation of the institution; and 4) the purported health risks of attending school and participating in academic and extracurricular
activities while pregnant.
The U.S. Department of Education’s Regulations implementing Title IX, codified at 34 C.F.R. § 106, specifically address legal issues regarding pregnant and parenting students and prohibit disparate treatment of students based on pregnancy, childbirth, false pregnancy, termination of a pregnancy or recovery from any of these conditions.
The Title IX Regulations make it clear that it is illegal for schools to exclude a pregnant student from participating in any aspect of an educational program, including academic components such as regular courses, advanced placement or honors classes, and out-ofclass activities required for courses, along with extracurricular activities such as debate, forensics, theatre, choir, band, orchestra, yearbook, school newspaper, interscholastic sports, clubs, honor societies and other activities designed to develop student leadership skills.
Schools may implement special classes or programs for a pregnant student, but participation must be solely the choice of the pregnant student and all such alternative classes and programs must be of comparable quality to those offered to non-pregnant students. And any special services provided to students who have other temporary medical conditions must also be made available to pregnant students. Depending on the nature of the pregnancy, such accommodations may be required not just by Title IX, but also by the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973.
To assist school administrators in understanding the nuances of their legal obligations, on June 25, 2013, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) on the topic, along with a 26-page Policy Guidance detailing the specific mandates of the Title IX Regulations regarding pregnant and parenting students and student-athletes and setting forth strategies and policy development recommendations through which administrators, teachers, counselors, activity sponsors and coaches can better support pregnant and parenting students. The following are excerpts from the Policy Guidance addressing some of the Frequently Asked Questions pertaining to Title IX requirements related to pregnant and parenting students.
FAQ: May a school require a pregnant student to participate in a separate program for pregnant students?
No. A school may offer separate programs or schools for pregnant students, but participation must be completely voluntary, with no express or implied coercion, and the alternative programs must provide academic, extracurricular and enrichment opportunities comparable to those provided in the regular school program.
FAQ: In addition to allowing a pregnant student to attend classes, does a school need to allow her to participate in school clubs, class activities, interscholastic sports and other school-sponsored organizations?
Yes. The Title IX Regulations prohibit a school from excluding a pregnant student from any aspect of its educational programs, including all extracurricular activities such as school clubs, academic societies, honors programs, homecoming court or interscholastic sports. A pregnant student must also be eligible to hold leadership positions in these activities.
FAQ: May a school require a pregnant student to obtain a doctor’s permission before allowing her to attend school late in her pregnancy if the school is worried about the student’s health or safety?
Schools cannot require a pregnant student to provide written permission from a physician in order to stay in school or participate in curricular or extracurricular activities, including interscholastic sports, unless the same requirement to obtain a doctor’s note applies to all students being treated by a doctor. Schools cannot treat a pregnant student differently from other students being cared for by a physician, even when a student is in the later stages of pregnancy. For instance, a coach can require ongoing medical clearance to participate for a female athlete progressing into the later stages of pregnancy only if such doctor’s notes are required of all student-athletes as part of the return-to-play protocol for other medical conditions and injuries such as concussions, torn ligaments, broken bones and chronic health issues.
FAQ: Does a school have to excuse a student’s absences from curricular or extracurricular activities due to pregnancy or childbirth?
Yes. The Title IX Regulations require a school to excuse a student’s absences due to pregnancy or related conditions, including recovery from childbirth, for as long as the student’s doctor deems the absences to be medically necessary. When the student returns to school, she must be reinstated to the status she held when the leave began, which should include providing her the opportunity to make up any work missed. If the school requires students with other medical conditions to submit doctor’s notes to substantiate absences, it may require the same from a pregnant student.
FAQ: What if some teachers, activity sponsors or coaches have their own (stricter) policies about class-activity-practice attendance?
Every school that receives federal financial assistance is bound by Title IX. Schools are responsible for ensuring that the policies and practices of individual teachers, activity sponsors and coaches do not discriminate against pregnant students. If grades or ongoing participation in an activity or sport are conditioned in part on attendance, the student must be provided with reasonable alternative methods to be reinstated to the status she had before the absences or medical leave. Schools should ensure that teachers, activity sponsors and coaches are aware of and follow all Title IX requirements.
FAQ: What types of assistance at school must an institution provide to pregnant students and what types of special services does a school need to provide to pregnant students?
To ensure lawful access to curricular and extracurricular programs for pregnant students, a school must make adjustments to classes and activities that are reasonable and responsive to the student’s temporary pregnancy status. For example, a school might need to provide a larger desk, allow seating close to classroom doors to facilitate more frequent bathroom trips or permit temporary use of elevators. And with regard to special services, the Title IX Regulations require the same accommodations provided to students with other medical conditions. For instance, if a school provides special tutoring, online assistance or at-home instruction to students who miss school because of other temporary medical conditions, it must do the same for a student who misses school because of pregnancy or childbirth.
FAQ: What procedures for filing complaints must a school district have in place related to discrimination on the basis of pregnancy and parental status?
School districts must adopt and widely communicate to staff, students and parents grievance procedures for filing complaints of any form of gender bias under Title IX, including discrimination related to pregnancy or parental status. The grievance process should establish the methodology through which the district will investigate and evaluate complaints and must provide for prompt and equitable resolution of complaints. Every district must also be sure to comply with the requirement set forth in the Title IX Regulations to designate a Title IX Coordinator to oversee its efforts to comply with all mandated obligations under the law regarding the prevention of gender discrimination in educational institutions, including discrimination related to pregnancy or parental status. On April 24, 2015, because of studies indicating that many districts nationwide did not have in-place the federally-mandated Title IX Coordinator, the OCR issued a seven-page DCL setting forth details regarding the designation, legal authority, procedural responsibilities and mandatory training required for such personnel. Schools and athletics administrators should read and become familiar with all of the legal mandates and Title IX procedural requirements set forth in that DCL.
Lee Green is an attorney and Professor Emeritus at Baker University in Baldwin City, Kansas, where for 30 years he taught courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu