Pregnant Athlete Policies Addressed by ESPN's "Outside the Lines"

ESPN's "Outside the Lines" (reairing today at 3:30) is taking on the issue of pregnant student athletes and how they are treated by their universities and the NCAA. The accompanying article on ESPN's website explains that schools seldom have formal policies addressing pregnancy and often treat pregnancy as grounds to revoke an athlete's scholarship.

For its part, the NCAA does not offer any clear guidelines on this issue according to Professor Beth Soresam from Wright State, who is featured in the program. Deborah Brake, a law professor and Title IX expert from Pitt, told OTL that this omission could be leaving NCAA's member institutions open to Title IX violations. She explains that it is a clear violation of the Title IX implementing regulations to discriminate against students on the basis of pregnancy.

Professor Brake is referring to 34 C.R.F. 106. 40, which states that an educational institution receiving federal funds "shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student's pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom...." The regs also indicate that pregnancy should be treated like any other "temporary disability," and that pregnancy, childbirth, and recovery is "a justification for a leave of absence... at the conclusion of which the student shall be reinstated to the status which she held when the leave began."

Pregnancy is one of those things that affects women differently than men. While both male and female student-athletes can (and should) face equal challenges as a result of parenting (just ask Eric Butler), only female student-athletes will ever face possibility of being physically incapacitated for a period of time while they are pregnant and recovering from childbirth. Thus, a formal equality approach, one that revokes the scholarship of "any" student athlete who "gets pregnant," does not take into account this reality. The Title IX regulations wisely reject formal equality here, in favor of a standard that accommodates the physical incapacity that pregnant student athletes face. To paraphrase Professor Brake's comments to OTL, sometimes equality doesn't mean treating men and women exactly the same.