​On January 26, 2023, the U.S. Department of Education’s Office for Civil Rights (“OCR”) published a letter and resolution agreement regarding a December 2020 complaint (OCR Complaint # 04-21-2060) filed against Troy University by a student alleging discrimination on the basis of pregnancy in violation of Title IX and its implementing regulations. The letter and resolution agreement offer insight into the legal obligations of colleges and universities when it comes to effectively supporting pregnant students.

What You Need To Know:

• Listing a point of contact is not enough—institutions should prominently publish information on their websites and in their student handbooks articulating the rights of pregnant students, the procedures by which pregnant students can request adjustments, contact information for university personnel tasked with coordinating requests from pregnant students and the Title IX Coordinator (if different), and the grievance procedure for students to file complaints of sex discrimination, including pregnancy discrimination, with web links to such procedures.
• These clear processes should be supported by robust training for faculty and staff on student rights and relevant procedures to ensure that employees are prepared to afford pregnant students the same opportunities to participate in the institution’s programs and activities as other students requiring temporary adjustments (for example, due to illness or injury).
• Assistance for pregnant students must be provided in a cohesive, intentional way, rather than in an ad hoc or piecemeal manner.
• The obligations articulated by OCR’s letter and resolution agreement are based on current obligations enforced by OCR, and are not dependent on the forthcoming notice of final rulemaking under Title IX OCR plans to publish in May (which is likely to include a new set of pregnancy-related obligations).

The Troy University resolution agreement related to the experience of a pregnant student during the fall semester of the 2020-2021 academic year. Prior to the start of the semester, the student was connected to the Title IX Coordinator, whose published responsibilities included “work[ing] with the University on its obligation not to discriminate against students based on their parental, family, or marital status, or exclude pregnant or parenting students from participating in any educational program, including extracurricular activities.” However, there was no established institutional process for addressing requests for assistance by pregnant students, and the Title IX Coordinator had never facilitated accommodations for a pregnant student before.

In an email to the Title IX Coordinator, the student requested that a table be installed in the classroom, as she could not fit behind the desks, and while she did not request other academic accommodations from the Title IX Coordinator, she engaged in robust correspondence with instructors, who offered accommodations such as participating in class via Teams, and re-opening closed assignments and tests for the student to complete. However, the student’s grades began to suffer due to pregnancy-related attendance issues.

The student emailed the Title IX Coordinator, asserting that the table had not been installed, and explaining the impact of her attendance issues on her grades. The Title IX Coordinator ensured the table was installed and agreed to reach out to the student’s professors about her absences and allowing her to make up missed work, but it was not until a month later, when the student was hospitalized for early labor and ultimately delivered her baby, that the Title IX Coordinator contacted the faculty. At that point, the student was still corresponding with instructors and attempting to complete some assignments, but was not attending class, submitting work consistently, or maintaining consistent contact. One of the instructors emailed the Title IX Coordinator to ask for guidance on how to handle the student’s grades, but instead of providing guidance to the faculty, the Title IX Coordinator responded that he was going to follow-up with the student, and after one unreturned phone call to the student, took no further action, and provided no guidance to the faculty member. The student received a D and an F for her classes that term.

Title IX Rights for Pregnant Students

Title IX offers protections to pregnant students, including prohibiting discrimination based on pregnancy, childbirth, and recovery (34 C.F.R. § 106.40(b)(1)); the right to reasonable adjustments in response to the student’s pregnancy akin to that which an institution provides to students with other temporary medical conditions (34 C.F.R. § 106.40(b)(4)); and the right to access a leave of absence for so long as is medically necessary, and to be reinstated upon return to the status which the student held when the leave began (34 C.F.R. § 106.40(b)(5)). Of relevance here, OCR has been unequivocal that when grading is based in part on class participation or attendance, and a student misses class because of pregnancy or childbirth, the student “should be allowed to make up the participation or attendance credits [the student] didn’t have the chance to earn.”

With respect to Troy, OCR was concerned that the University had failed to satisfy its legal obligations to the student in that it did not:

• Make reasonable adjustments in response to the student’s pregnancy-related requests, including promptly and consistently intervening when contacted about issues, and offering guidance to the student’s instructors when such guidance was sought;
• Engage in an interactive process with her to explain the available options and determine what adjustments would be appropriate, such as an incomplete or late withdrawal, as it has offered to students with other temporary conditions; 
• Provide pregnant students information about how to seek adjustments related to pregnancy; or
• Offer training to students or employees regarding Title IX’s application to pregnant students.

OCR also observed that while the student did receive some pregnancy adjustments from faculty, “these efforts were ad hoc and uncoordinated and dependent on each professor’s individual interpretation” of the Title IX Coordinator’s email instructing them to accommodate the student.

Lessons for Colleges and Universities

The Resolution Agreement included a commitment by the institution to amend the student’s transcript and reimburse her financially, but it also required the University to take larger, structural responsive action. Specifically, the University was required to:

• Publish revised policies and procedures for requesting and providing adjustments for pregnant students and disseminate them to all students and employees;
• Post information regarding these procedures, the rights of pregnant students, the name and contact information for the individual(s) tasked with coordinating requests for adjustments from pregnant students, and the grievance procedure for students to file complaints of pregnancy discrimination;
• Provide training on these topics to all faculty and to all staff involved in providing resources to or addressing requests for adjustments from pregnant students, giving examples of pregnancy-related adjustments that may be appropriate; and
• Develop a system for tracking requests for pregnancy-related adjustments and the University’s response to such requests, including the reasons for any denials.

On an industry-wide level, many colleges and universities—especially smaller institutions and those which have not traditionally served a large population of pregnant and parenting students—do not have published procedures for pregnant students to request reasonable adjustments. Such institutions should promptly adopt appropriate procedures and disseminate them widely.

These procedures should be supported by training for employees regarding how and to whom students may submit requests for adjustments, the contact information for the individual(s) tasked with coordinating adjustments, and the grievance procedure for students to file complaints of sex discrimination, including pregnancy discrimination. Given that for many institutions, requests for assistance by pregnant students are infrequent, asynchronous online training that can be sent to faculty and staff supporting a pregnant student along with information about the specific adjustments that student requires would be a positive step forward, in addition to posting the relevant information to the institution’s webpage.

It is anticipated that the upcoming updated Title IX regulations will include far more specificity for institutions related to their obligations to pregnant students. This resolution agreement serves as a signal for institutions to promptly start putting into place the building blocks of a system for supporting pregnant students. Between the anticipated new regulations and the intensifying scrutiny of all issues related to pregnancy and reproduction, allocating institutional resources and attention to this issue is critical, and will lead to improved outcomes for students who are managing pregnancy while pursuing post-secondary education.