24 Jun New Draft Title IX Rules Released
Today is the 50th anniversary of Title IX being signed into law! While the landmark law prohibiting sex discrimination in education has long protected pregnant and parenting students, we know more protections are sorely needed to make Title IX’s promise of gender equity in education a reality. The Pregnant Scholar applauds the Department of Educations’ just-released proposed Title IX regulations as they relate to students who are, or will become, pregnant or parents. While further actions are needed to protect student parents, we encourage the adoption of these draft regulations without delay.
What’s in the proposed regulations?
In addition to making changes to the handling of Title IX complaints, and other broad changes, the proposed new rules include several changes to make the rights of pregnant students clearer and easier to safeguard. We provide an overview of some key changes below.
The draft regulations, if enacted, would:
- Define pregnancy and conditions related to pregnancy more consistently, and clarify that pregnancy includes potential, presumed, or past pregnancy, as well as related conditions and recovery from related conditions. This is critical for protecting students’ health, and for guarding against discrimination based on presumptions about someone’s fertility or family status. Of particular importance in light of the Dobbs decision, the definition of pregnancy and related conditions continue to include miscarriage and abortion (the phrase “termination of pregnancy” in the regulations is a legal term covering abortion, miscarriage, or other pregnancy loss).
- Recognize lactation as a pregnancy-related condition and set requirements for lactation break time and space. Under the new regulations, employees and students must be provided lactation space which is not a bathroom, and is clean, shielded from view, free from intrusion, and may be used for expressing breast milk or breastfeeding as needed. These requirements mirror existing state and federal workplace lactation laws that apply to most workers nationwide. The Department rightfully pointed out in the discussion that, “Lack of access to lactation space … could cause the student to miss school, quit school, or be unable to express breast milk or breast feed and, as a result, experience potentially painful physical side effects that prevents the student from fully accessing and obtaining the benefits of the recipient’s education program or activity.”
- Requires educational institutions to provide information to pregnant students on their rights. Currently schools are only required to have a Title IX coordinator and make their contact information publicly available. Under the new regulations, whenever any school employee learns that a student is pregnant or experiencing related conditions (from the student or someone on their behalf), they must inform the student how to seek assistance from the Title IX coordinator and provide relevant contact information. The Title IX coordinator will be required to 1) inform students of their rights to non-discrimination; 2) offer reasonable modifications (also known as reasonable accommodations or academic adjustments); 3) allow the student access to a separate and comparable educational program, if the student elects to join it; 4) allow voluntary leave; 5) provide lactation space; and 6) inform the student of applicable grievance procedures.
- Makes clear pregnant students’ rights to academic adjustments/modifications to policies, practices, procedures. While the Department of Education has long required certain reasonable adjustments be made to protect the pregnant students’ health and enable their continued education, the requirements have been difficult for many institutions to understand and implement. The new regulations make clear that educational institutions must provide reasonable modifications to policies, practices and procedures when needed for pregnancy or related conditions. These adjustments must be agreed to by the student and individualized to the students’ needs. Academic adjustments might not be required if the educational institution can show that making the change would “fundamentally alter” the education program. That standard has long been in place, and means schools wouldn’t have to make a change so significant that it “alters the essential nature of the recipient’s education program or activity.”
- Requires the Title IX Coordinator to ensure reasonable modifications are provided to pregnant students who need them. This would include, “determining what modifications are appropriate with input from the student and any other necessary individuals, communicating approved modifications to the student and any relevant staff members, ensuring that all other staff members involved in carrying out the modifications were performing their roles, and documenting when and how modifications took place.” In other words, the Coordinator would be tasked with ensuring the modifications are provided in practice, not just on paper. This is a critical step as currently many Title IX coordinators report struggling with requiring faculty members to provide reasonable accommodations for pregnant students. Now it is clear that the Title IX Coordinator has the authority, and the obligation, to do so.
- Eases access to leave for pregnant and birthing students. Title IX regulations have long required that medically necessary leave be provided to students for pregnancy, childbirth, recovery and related conditions. The new regulations make this requirement even clearer, and now also permit documentation from a licensed healthcare provider other than a physician to serve as documentation of medical necessity. Expanding the range of healthcare providers is useful as many pregnant students receive care from midwives, registered nurses, lactation consultants, and other non-physicians.
- Limits requirements on students to provide medical clearance in order to continue their studies. The old regulations allowed schools to request certification (e.g. a doctor’s note) that a pregnant student was physically and emotionally capable of continuing their studies, so long as other students with health conditions were also required to provide certification. Now, emotional ability is no longer considered, and certification can only be required if “(i) the certified level of physical ability or health is necessary for participation in the class, program, or extracurricular activity; (ii) the recipient requires such certification of all students participating in the class, program, or extracurricular activity; and (iii) the information obtained is not used as a basis for discrimination prohibited by the regulations.” The new regulations reduce the risk of a student being excluded from their educational program due to pregnancy and make it easier for all stakeholders to assess when such certification is appropriate.
- Defines parental status in keeping with other federal laws. The regulations continue to prohibit discrimination on the basis of sex in relation to any policy on parental status. The proposed definition of parent includes caring for child or someone who needs care due to disability, including biological parents, adoptive parents, stepparents, foster parents, legal guardian, and people filling a parental role (standing “in loco parentis”).
- Requires monitoring. Title IX Coordinators will be required to monitor their institutions’ educational programs “for barriers to reporting information about conduct that may constitute sex discrimination under Title IX…” Documenting barriers aids critical data collection and supports future action steps to best support pregnant and parenting students.
While the regulations make clear many protections for students who are or were pregnant, parenting students still need more protection. For example, while a student would be entitled to time off from school for pregnancy or childbirth, under the draft and current regulations they would not be clearly entitled to time off to care for their child’s health needs. Parenting students have repeatedly raised the need for accommodations to address their caregiving needs and have identified the many ways sex stereotyping informs these issues. Stay tuned for additional analysis and advocacy opportunities related to parenting students’ unique needs.
What’s next? (Updated January 2023)
After the regulations were proposed, there was a 60 day public comment period. The Pregnant Scholar Initiative is proud to have submitted formal comments to the Department of Education regarding the proposed regulations. While we applaud the progress the proposed regulations will bring, they do not reach far enough to protect against all forms of sex discrimination that pregnant and parenting students face. For this reason, our comments contain suggested changes and additions to the rules. The Pregnant Scholar was joined in this effort by hundreds of organizations, advocates, and current/former student parents. Read the letters here.
The new regulations are expected to formally take effect in May 2023.