Protecting Pregnant Students

A group of Democrats in Congress are calling on the Education Department to clarify how Title IX protects pregnant students from discrimination, including whether students can be referred to law enforcement for seeking an abortion.

Title IX, the law that protects students from sex-based discrimination, requires all colleges that receive federal funding to provide specific accommodations for students who are pregnant or are parents. This can be anything excused absences for doctors' appointments to basic protections from discrimination. These protections have been codified into Title IX since 1975, and include language prohibiting discrimination for students who receive or are recovering from abortions.

As some states across the nation move to enact strict bans on abortion, catalyzed by the recent Supreme Court ruling that overturned the federal right to abortion, many women's rights advocates as well as Title IX experts are concerned on how these protections will operate as the country becomes increasingly hostile towards abortion.

The new Title IX proposal from the Biden administration that was released in June does go further to clarify the types of accommodations that students who are pregnant, parenting or seeking an abortion are able to request from their college, such as what constitutes a "pregnancy related-condition" under Title IX. However, after a 60-day public comment period, it could take as long as a year for the proposal regulations to become law.

A coalition of 60 Democrats wrote a letter to the Education Department on Thursday asking the department to take action to clarify specific protections for pregnant students under Title IX, including protections against disciplinary or legal action.

Representative Suzanne Bonamici from Oregon, who led the effort, said that she wants the department to clarify these protections "as soon as possible" in an interview with Inside Higher Ed.

"This decision will diminish the ability of pregnant students to access safe and legal reproductive care and place a heavier burden on institutions of higher education, many of which are woefully underprepared to handle a sharp increase in pregnant and parenting students," said the letter. "Creating additional barriers for students to access reproductive care and, in effect forcing many students to carry pregnancies to term, would likely prevent students from feeling safe on campus, hinder their ability to access equitable educational opportunities, and even interfere with their completion and graduation plans."

What Democrats Want

First, Democrats asked that the department issue updated guidance so that if students find themselves pregnant they can be aware of these rights and so colleges have more clarity on how to address pregnancy-related Title IX cases. Specifically, they are asking for updated guidance on the rights enshrined in Title IX for students who are seeking abortion, and for information on these rights to be shared by the department and Title IX administrators to students on campus, who are often unaware that the law provides these sorts of protections.

Although students can refer to their campus's Title IX office to receive information on what protections are available to them, the chilling effect from the recent Supreme Court decision could prevent students from reaching out to the office to see what options are available to them.

"I think it is really important for administrators and decision makers at the federal level to understand there is an incredibly high level of fear out there right now and so any guidance that they could give on these points is going to be very impactful," said Jessica Lee, director of the Pregnant Scholar Initiative, a project focused on raising awareness for the rights of pregnant students under Title IX.

She said that even though pregnant students have always been protected under Title IX, "there has not been much guidance or institutional knowledge making that right a reality."

Guidance from the Education Department to clarify how regulations in Title IX apply to specific situations related to pregnancy and abortion are important because, "leaving it up to individual institutions to figure it out is a recipe for disaster," said Lee.

Some colleges are legally allowed to disregard certain provisions in Title IX law if they claim a religious exemption, which must be granted by the Education Department. The lawmakers are asking that the department reach out to colleges with religious exemptions and ask how they are planning to provide accommodations under Title IX for students who are pregnant or seeking an abortion.

The lawmakers said that they are concerned with students who are pregnant or seeking abortion being especially at risk to being subjected to disciplinary action without increased oversight. "Disciplinary proceedings targeting only pregnant students can result in disparate outcomes for those students," said the letter.

They asked the department to prohibit colleges from referring students to law enforcement or subjecting them to disciplinary action for getting an abortion.

They also asked for the department to increase oversight on Title IX investigations that occur on college campuses for cases involving pregnant or parenting students to ensure that colleges are not neglecting their obligations under Title IX.

"Although we recognize that the department may not have comprehensive data on pregnant and parenting students and students who have terminated their pregnancy, we are confident that expanding direct outreach to all students will boost the Department's ability to effectively conduct oversight and investigate perceived Title IX violations against students who are pregnant or have terminated their pregnancy," said the letter.

They asked that oversight be especially increased in states that have enacted abortion bans, where the environment for students who are pregnant might be increasingly hostile.

Lastly, the lawmakers asked the department to clarify how the recent Supreme Court ruling will interact with other laws that protect student's privacy and information. Specifically, they are requesting that the department work alongside the Department of Health and Human Services to clarify laws that protect students' health information from being made public including the Family Education Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA).

The lawmakers want to ensure that colleges are prohibited from being able share information to law enforcement or state governments on student who might share with health service centers, academic advisors or campus counselors that they are planning on getting an abortion.

"We wants students [to know] if they have a conversation about abortion or reproductive care, if they go to the campus health center, that those conversations are private and that they're not going to be used for any disciplinary or legal action," said Bonamici. "We want students to be able to discuss their healthcare without being afraid."

Although the lawmakers are asking for immediate action from the department, it is not so certain that they will get what they are asking for, and might have to wait for the department to issue new guidance in the revised version of the proposed regulations.

"I think we all do have an expectation that based on the timing of the proposed regulations and the Dobbs decision the Department of Education is likely to offer revision to the proposed rule with greater information on termination of pregnancy," said Brett Sokolow, president of the Association of Title IX Administrators. "If the department wanted to sort of signal its future direction it could issue some guidance, and maybe it will, but if I had to bet I'd say they will wait for the final regulations."