Childbirth Doesn't Count?

Complaint says college violated Title IX by refusing to allow a student dealing with a high-risk pregnancy and delivery to miss some classes without penalty.

August 1, 2013

A Missouri college’s policy that fails to excuse students for pregnancy-related absences violates Title IX of the Education Amendments of 1972, says a complaint filed by the National Women’s Law Center.

From her hospital bed, just hours before her emergency Caesarean section, Brandi Kostal sent an e-mail to the dean of student services at Logan College of Chiropractic/University Programs regarding the college’s attendance policy.

After Kostal, a student in the college’s chiropractic program, sent a follow-up e-mail, Dean of Student Services James Paine responded a week later, writing:  “Please find the attendance policy attached. Unfortunately, child birth is not currently listed as an event for which attendance is excused."

Fearful of receiving an “Attendance Failure” grade, which is a penalty for students who miss more than 15 percent of classes at Logan, Kostal returned to her classes 11 days after her emergency Caesarean delivery — even though she had obtained a letter from a doctor saying that she was a “high risk” patient and would be “incapacitated for recovery” from her delivery date in March until the beginning of May.

Under Title IX, “A school must excuse a student’s absence because of pregnancy or childbirth for as long as the student’s doctor deems the absences medically necessary. When a student returns to school, she must be allowed to return to the same academic and extracurricular status as before her medical leave began.” This language was reiterated in a “Dear Colleague" letter, which was sent by Education Department’s Office for Civil Rights to colleges in June. The letter, along with an accompany pamphlet of guidance and best practices, reminded colleges that they have legal responsibilities to support pregnant and parenting students.

Kostal said that besides e-mailing Paine, she also stayed in communication with her professors about her situation, asking how she could make up missed assignments. Despite this, she was told by the college that she would have to withdraw from her master’s classes, be penalized for missing classes or return to classes immediately.

“The school was very aware of what my pregnancy was going to entail and what type of recovery,” Kostal said. “I mean the communication was very clear and was done well in advance, so everyone was on the same lines, of what I was going to have to do.”

Kostal completed most of her classes, but the director of her master’s program said in an e-mail that it would not be in Kostal’s “best interest” to receive an “incomplete” grade for two online classes. An “incomplete” grade would have allowed her to complete exams and assignments after she had finished her recovery. Instead she received two failing grades for those classes. Kostal said she had an “A” in one of those classes and a “B” in the other prior to her hospitalization. The National Women's Law Center released copies of these and other e-mail exchanges.

Paine said he could not comment on the complaint and directed his questions to Logan’s general counsel, Laura McLaughlin. McLauglin said in an e-mail that Logan does not comment on pending litigation.

The National Women’s Law Center’s Lara S. Kaufmann, senior counsel and director for education policy for at-risk students, said the college’s attendance policy that fails to excuse students for pregnancy-related absences is in clear violation of Title IX, which prohibits discrimination on the basis of sex in education.

Kostal sent a link from the NWLC website, which states the language regarding pregnancy and absence policies, to officials at Logan while she was recovering from labor.

The Logan attendance policy states that a student may be excused from an absence for the following reasons: military service, jury duty, national licensure examinations and off-site sanctioned events.

In May, McLaughlin responded to a letter from Kostal’s lawyer, saying that Logan advised Kostal to take a lighter course load before her trimester began, and Kostal “refused.” In the letter, McLaughlin said that “in an effort to compromise,” Logan is offering to withdraw Kostal from her two failed classes, without notation of pass or fail.

But Kostal does not wish to withdraw from those classes. Instead, she is asking that her two “F” grades be removed from her transcript, that she be allowed to resume those two courses this term and that Logan restore any grade deductions from other classes because of pregnancy-related absences. Her complaint also asks for the college to adopt a policy addressing the rights of pregnant and parenting students under Title IX, conduct faculty training on Title IX and include this new policy in the student handbook.

Kostal’s Title IX complaint comes just two months after the National Women’s Law Center settled an almost identical discrimination complaint made by a pregnant student at the City University of New York. The student was told by CUNY administrators that she would not be able to make up tests or missed assignments as a result of her pregnancy.

The student provided received $3,000 from the university, and the university promised to “communicate the longstanding non-discrimination policy to the faculty and staff.”

“We hear weekly from students who are being pushed out of their schools because of cases like these,” Kaufmann said. Colleges, she said, should be providing support to help pregnant students reach their educational goals, instead of making things more difficult.

With the reappearance of these types of violations, “it certainly looks like there is a lack of awareness of the Title IX application” to pregnant students, said Erin Buzuvis, a professor at the Western New England School of Law and a co-founder of the Title IX blog.

While university faculty and administrators may be more aware that Title IX applies to more than “just athletics,” it seems to be less known that not accommodating pregnant students can also be classified as sex discrimination, Buzuvis said.



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