An article in the latest edition of the Indiana Law Review examines, criticizes, and offers suggestions for improvement to the regulatory provisions that ensure Title IX's protections extend to pregnant students. Author Kendra Fershee, a law professor at UND, first describes and provides historical context for the regulations' main components. First, they ensure pregnant students have the right to stay in school, which is important in light of the historical, pervasive practice of expelling pregnant students. They also provide that pregnant students have the right to choose whether to attend an alternative program during their pregnancy, a provision that counters the practice of hiding pregnant students away in alternative programs. Last, the regulations require that schools offer pregnant students an education equal in quality to that received by their peers, as many then-existing education programs for pregnant students had a limited focus on life skills.
Unfortunately, Professor Fershee explains, the generality and vagueness of the regulations contributes to lack of regulatory oversight and enforcements that allows pregnancy discrimination to persist. She argues that the Department of Education should strengthen the regulations in a number of ways. First, the regulations should provide a mechanism for gathering information about pregnancy in schools and schools' efforts to comply with Title IX. She suggests that thee regulations should require schools to keep and report statistics on the number of pregnant students, dropout rates, transfer rates to alternative programs, and graduation rates. She also recommends that the Department devise an fast-track process for investigating claims of pregnancy discrimination, which would promote enforcement by taking into account the temporary nature of the condition of pregnancy and discrimination resulting from it. Finally, Professor Fershee recommends that the Department conduct routine reviews of schools' policies, practices, that it publish and enforce educational standards to ensure the equity and quality of alternative programs, and that it provide guidelines to school officials on counseling pregnant students.
Citation: Kendra Fershee, Hollow Promises for Pregnant Students: How the Regulations Governing Title IX Fail to Prevent Pregnancy Discrimination in School, 43 Indiana L. Rev. 79 (2009).