Assignment: Presentation on the chapter below. The presentation should be 8-10 minutes long.
Since the 1960s, the courts and Congress have focused on recognizing the right of girls and women to equal educational opportunity. This has led to significant progress for females in the areas of equal access to school sports, curricular exclusions, discriminatory admissions policies, and separate schools, and issues related to married or pregnant students. This chapter also examines the court cases and legislation that have struck down school practices that discriminate against teachers in areas such as salary, promotions, and maternity leave policies. In addition, this chapter explores the recent developments in the laws and regulations involving single-sex education, sexual harassment by students against students, and the rights of transgender teachers and students.
Sex Discrimination against Teachers
Employment Discrimination
Can Schools Pay Men More Than Women for the Same Work?
No. Under both the Equal Pay Act of 19631 and Title VII of the Civil Rights Act of 1964,2 sex cannot be used as the basis of a pay disparity between individuals who perform substantially the same work.3 A pay difference is permissible, however, if it is based on factors other than sex, such as experience or educational qualifications. Thus, in a New York case, the court dismissed a claim that Title VII was violated where elementary school principals were paid less than high school principals, even though the latter tended to be largely male, while elementary principals were nearly all female.4 The court explained that the mere fact that a lower-paid job was “traditionally female” is not enough to establish a Title VII violation: the critical question, rather, is whether any present violation exists. In examining the current situation, the Court found that the salary difference was justified by factors other than sex, including the fact that the high school principal’s job entailed greater responsibility and effort due to the size of the staff, physical plant, student body, and larger budget.
When Can Schools Pay Some Teachers More Than Others?
Schools may base their salaries on formal preparation and experience, and thus teachers may be placed on different steps of a schedule on the basis of those factors. Given objectively equal preparation and experience, some teachers may be paid more than others if such additional pay is based on merit or additional duties. These standards, however, must apply equally to men and women.
Can Male Coaches Receive More Pay Than Female Coaches?
Sometimes. The principle of equal pay for equivalent work has been difficult to apply in the area of coaching. Historically, significant disparities existed in favor of male coaches. While Title IX of the Education Amendments of 19725 has equalized some aspects of the funding of athletics, it has not been applied to coaching because Congress intended this particular law to apply to students and not to teachers or coaches. In short, Title IX is not an employment law.
The federal Equal Pay Act of 1963 and similar state laws have been used to challenge unequal pay, however. In one case, for example, female junior high school coaches brought suit when they were paid less than the male coaches in the same sports.6 The court explained that under the Equal Pay Act, the female coaches could prevail only if they could show that their coaching jobs were substantially similar to the male coaches’ jobs. Examining their respective duties, the court found that there were no significant differences between the male and female teams in terms of numbers of students, length of season, or number of practice sessions; and it concluded that the work of the male and female coaches was substantially similar and required the same skill, effort, and responsibility, except that the female track coach worked longer hours than the male coach. The court therefore awarded back pay to the female coaches. In a related case, however, the court found that a salary difference (ranging from $50 to $580) was not a violation where different work hours were required for female volleyball coaches and male football coaches.7
Must the Same Jobs Be Compared to Show Discrimination?
Yes. The Washington State government successfully turned back a legal challenge by female employees alleging not that they were paid unlawfully below their male colleagues performing the same jobs, but rather were entitled to be paid at identical rates based upon the “comparable worth” of their respective jobs as compared to those performed by males.8 The comparable worth argument is that women performing jobs of equal value to their employer should be paid the same as men performing different jobs with relatively similar or equal value. The courts have rejected this theory whenever it was advanced, including the case from Washington where the court held that the Equal Pay Act required a strict comparison between male and female jobs in order to justify a finding of discriminatory wages, and that it would not engage in the speculative process of determining the relative value of different jobs within a particular government agency.
How Does an Employee Prove Sex Discrimination?
Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on race, color, religion, sex, or national origin.9 The term discrimination has been interpreted by the Supreme Court to include two different concepts:
“Disparate treatment” . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. . . . Claims of disparate treatment may be distinguished from claims that stress “disparate impact.” The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive . . . is not required under a disparate impact theory. . . .10
A plaintiff bringing a charge of disparate treatment has the burden of proving each of the following: (1) that he or she belongs to the protected class; (2) that he or she applied and was qualified for the position; (3) that despite such qualifications, the plaintiff was rejected; and (4) that after the plaintiff’s rejection, the position remained open and the employer continued to seek similarly qualified applicants.11 Once the plaintiff has met the burden of proving a prima facie case—that is, has proven the above four elements, and thus is entitled to take his or her case to a jury—then the employer must establish a legitimate, nondiscriminatory reason for the actions taken. If the employer can do so, the plaintiff must then show that the reason given by the employer was merely a pretext.12
For example, Nettie Carlile was a public high school teacher who claimed that the district’s failure to grant her tenure was based on sex discrimination in violation of Title VII.13 During her three years at the high school, she received excellent evaluations. The district claimed, however, that it was concerned about her overall attitude and chose not to renew her contract. The district then hired Dan England to replace her and also to serve as the boys’ basketball coach.
The court applied the Title VII standard described above and concluded that Ms. Carlile only met her burden of proof for the first and third requirements (that she was a member of the protected class and was rejected for employment). The court explained that Ms. Carlile was not qualified for the position because the school district had different needs—it needed a teacher who was also qualified to coach basketball—and that she also failed to prove that the district hired someone who was similarly qualified to her. The court therefore ruled against her.
In a case raising a claim of “disparate impact,” the plaintiff must show a causal connection between the arguably gender-neutral employment practice and the differing treatment of a protected group. Most commonly, statistics are used to show that an employment practice disproportionately disadvantages women or men, such as a weight requirement for firefighters which tends to exclude women in greater numbers than men. Once the plaintiff has shown disparate impact, the employer then has the burden of proving “business necessity,” that is, that the challenged employment practice is necessary for the safe and efficient operation of the business. There must be a compelling reason for the practice without acceptable alternatives to accomplish the same business goals.
For example, in an Arizona case, the school district required applicants for a teaching position in biology to also be able to coach football.14 A female applicant who was not selected for the job sued. The Arizona court held that the school district presented no evidence that less discriminatory hiring practices had been attempted and failed, “and there was in fact substantial evidence that hiring alternatives were available and were not used.” The Arizona court recognized that it might be possible for a school district “to show business necessity in the practice of coupling addendums (extra coaching assignments) and academic contracts.” However, the burden of proving that was on the school district and in this case, it did not prove such necessity. The court therefore ruled that the district was liable for damages.
What Happens in Mixed-Motive Cases?
In Price Waterhouse v. Hopkins, the U.S. Supreme Court ruled that employment decisions such as promotions and pay raises which are based in part upon sexual stereotypes constituted unlawful sex discrimination, even where legitimate reasons are also offered to support an employment decision.15 In that case, Ann Hopkins prevailed in her sex discrimination suit after she was denied a position as a partner in an accounting firm based in part on the fact that she was not “feminine” enough in her choice of clothing and conversation. In such so-called “mixed motive” cases, where there is evidence of both discriminatory and legitimate factors, then the burden of proof shifts to the employer to show that it would have made the same decision absent any discrimination. Congress later codified this decision when it enacted the Civil Rights Act of 1991, providing that
[a]n unlawful employment practice is established when the complaining party establishes that . . . sex . . . was a motivating factor for any employment practice, even though other factors also motivated the practice.16
What Remedies Are Available under Title VII to Victims of Sex Discrimination in Employment?
Title VII authorizes courts to enjoin a defendant from engaging in unlawful employment practices and to order such relief as is appropriate, such as reinstatement and back pay. In addition, the Civil Rights Act of 1991 amended Title VII to allow both compensatory and punitive damages.17 While governmental employers such as public school boards are exempt from liability for punitive damages, compensatory damages of up to $300,000 per victim depending upon the size of the employer’s workforce are available for such damages as mental stress, humiliation, and somatic conditions caused by the discrimination.
Other, more drastic remedies may be ordered by the courts under Title VII, including directing that a school district with a proven history of sex discrimination or sexual harassment institute written policies intended to eliminate discriminatory practices. Such orders are often incorporated into Consent Decrees, which require long-term court supervision over an employer’s employment practices, including periodic reporting of its claims of workplace sex discrimination and sexual harassment, as well as management and employee training.
Are Remedies Available If School Districts Retaliate against Employees Who Make Claims of Sex Discrimination or Sexual Harassment?
Yes. Title VII specifically prohibits employers from retaliating against employees because they have made claims or charges of discrimination or because they assisted others in doing so.18 This does not mean that employees are only protected when they file formal complaints of discrimination with a federal or local agency, such as the EEOC. Filing an internal complaint within the school system is an equally protected act for which retaliation is strictly prohibited. In a 2009 decision, the Supreme Court extended the term protected activities contemplated by Title VII’s anti-retaliation provision to include not only victims of discrimination who file complaints with their employers but witnesses and others who participate in investigations into claims of gender harassment or other forms of discrimination.19
In 2013, the Supreme Court clarified that Title VII retaliation claims require a different standard than do initial sex discrimination claims.20 In order to prevail in a retaliation claim, the complaining party must show that filing the discrimination claim was the actual cause for the retaliatory act—that “but for” her complaint, the employer would not have engaged in the retaliatory action. This “but for” standard is more difficult to meet than the “motivating factor” test discussed above. The Supreme Court justified imposing this higher burden by examining the design and structure of Title VII as a whole, and also expressed concern that adopting a less stringent standard could hurt employers such as school districts that might have to devote time and money to defending unwarranted claims.
Are Teachers Also Protected from Employment Discrimination under the Constitution?
Yes, if they work in public schools. Under the equal protection clause of the Fourteenth Amendment, individuals are protected from discrimination based on sex. To gain such protection, a teacher must prove that she suffered intentional discrimination. Once shown, the state can only justify its action by providing an “exceedingly persuasive” reason.21 For example, Elana Back, a psychologist who worked at a public elementary school, had outstanding evaluations until her tenure review approached.22 The principal then expressed repeated concerns that she would not be able to perform the desired job because she had young children. Based on the belief that Back would not be able to balance the demands of work and family, the administrators recommended that she not be granted tenure. When that occurred, Back brought suit under the equal protection clause. The court explained that “stereotyped remarks” can be evidence of sex discrimination, and that Back had produced enough evidence to meet her burden of proof. Ultimately, however, the court ruled that the school district was not liable for sex discrimination.23
Can Gender Be a Relevant Factor in Selection of a School Counselor?
Yes, ruled the Montana Supreme Court.24 The school in this case already had a male counselor, and in the search for a second counselor, males were excluded from consideration. The plaintiff challenged his exclusion, but the court ruled that gender in this situation was a bona fide occupational qualification (called a “BFOQ,” and a permitted defense to discrimination claims under Title VII) because the position might call for special sensitivities in relationships with female students. Thus, in this instance, discrimination based on sex was reasonable.
Are Teachers Protected against Sexual Harassment?
Yes. Sexual harassment is sex discrimination prohibited by Title VII. Sexual harassment claims can be brought under Title IX by students, but not employees unless the student-victim of harassment is on a work-study program. Many states also have laws barring sex discrimination in the workplace.
The Equal Employment Opportunity Commission, the agency that administers Title VII, has issued guidelines that define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of one’s employment, (2) submission to or rejection of such conduct is used as a basis for employment decisions, or (3) such conduct has the purpose or effect of substantially interfering with one’s work performance or creating an intimidating, hostile, or offensive work environment.25 In its first decision in a sexual harassment case,26 the U.S. Supreme Court approved these guidelines and held that a claim of “hostile environment” sexual harassment is a form of sex discrimination actionable under Title VII.
The primary purpose of laws and regulations related to sexual harassment is to protect women in the workplace, since historically they were victims of widespread abuse, intimidation, and exploitation. Most often, such abuse came from supervisors and bosses who were in positions of power over rewards and promotions. In education, it was principals, supervisors, and other administrators who occupied these positions. Historically, this kind of behavior was treated as immoral27 or unprofessional conduct, and many administrators lost their jobs or were otherwise disciplined. Educators, and not only administrators, are bound by the same principles. Teachers who harass their peers, secretaries, or even outside employees assigned to their school may be guilty of immoral or unprofessional conduct or sexual harassment. It is also clear that sexual advances or relations with students constitute misconduct and/or immorality warranting dismissal even of tenured teachers. An important distinction between students and adults is that minor students are legally incapable of consenting to such activities, whereas for behavior to constitute sexual harassment of adults, it must be unwanted sexual advances or other conduct. In short, genuinely consensual sexual behavior is not grounds for sexual harassment.28 Whether the advances or verbal behavior were unwanted is a question of fact and must be determined by taking all relevant evidence into consideration.
The courts have ruled that employers are liable when employees engage in sexual harassment, and the employer knew or should have known about the harassment but failed to take appropriate remedial action. In two cases, the Supreme Court ruled that although Title VII allows the imposition of liability on employers for sexual harassment committed by supervisors, the employer may be able to avoid liability by showing that it exercised reasonable care to prevent and promptly correct any sexual harassment when it came to the employer’s attention. Employees must not fail to invoke the procedures provided by the employer for rectifying and terminating such behavior or risk having their claims denied by the courts.29 Therefore, school districts can best protect themselves from liability by adopting policies that specifically prohibit sexual harassment and establish official complaint procedures.
In a 1993 decision, the U.S. Supreme Court held that a hostile work environment requires an objective standard—an environment that a reasonable person would find hostile or abusive—as well as the victim’s subjective perception that the environment is abusive.30 The Court explained that whether an environment is “hostile” can only be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, and whether it is threatening or humiliating. The Court also held that the sexual harassment must be more than “merely offensive” conduct, yet it need not be so severe that it causes “tangible psychological injury.” On the other hand, where the conduct in question is limited to an occasional offensive utterance or an isolated act of gender insensitivity, with little more, the Supreme Court rejected a claim of “hostile environment” sexual harassment.31 Thus, where a female personnel department employee complained that her male supervisor embarrassed and offended her by reading a sexually suggestive statement contained in a psychological report relating to a job applicant, the Supreme Court observed that: “Workplace conduct is not measured in isolation; instead, ‘whether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; or whether it unreasonably interferes with an employee’s work performance.’ ”32
Is Same-Gender Sexual Harassment Actionable under Title VII?
Yes, according to the U.S. Supreme Court’s ruling in Oncale v. Sundowner Offshore Services, Inc. 33 Joseph Oncale was an offshore oil rig worker who alleged that he was assaulted, touched, and threatened by three other men while working on a Gulf of Mexico oil rig. Oncale said that he twice reported the situation to his employer’s highest-ranking representative on the job site, but no action was taken. He said that he feared that he “would be raped or forced to have sex.”
In this case of first impression, the Supreme Court held that Title VII applies to same sex harassment. In writing for a unanimous Court, Justice Scalia said that the severity of the harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, and to find a violation of Title VII, the behavior must create a hostile work environment for the victim. The Court cautioned that the statute does not reach ordinary socializing at work, nor does it turn Title VII into a general civility code for the American workplace. Where an employee is “exposed to disadvantageous terms or conditions of employment to which members of the opposite sex are not exposed,” Title VII is violated, according to the Court in Oncale, regardless of whether those conditions are created by members of the same or the opposite sex.
Are Gays and Lesbians Entitled to Legal Protections from Discrimination?
Twenty-one states and the District of Columbia have enacted laws prohibiting employment discrimination based upon an applicant’s or employee’s “sexual orientation.”34 In addition, some courts have relied on language in the Supreme Court’s opinion in Price Waterhouse v. Hopkins 35 to argue that gays and lesbians are victims of the same type of sex stereotyping that was found to be a violation of Title VII in that case, and thus should also be protected under Title VII. In Oregon, for example, a court applied Title VII when a lesbian employee at a country club was fired because of her supervisor’s animosity toward homosexuals.36 Many other courts, however, have ruled the other way, finding that discrimination on the basis of “sexual orientation” is different from discrimination on the basis of “sex.”37 In a 2009 case, however, a federal appeals court in Philadelphia ruled that harassment against a perceived homosexual employee based upon his alleged failure to conform to a “typical male stereotype” violated Title VII’s ban on gender discrimination.38
The best hope for legal protection may lie with proposals for a new federal law. The Obama administration has called for passage of the Employment Non-Discrimination Act (ENDA) that would prohibit discrimination in employment based on a person’s sexual orientation and gender identity.39 Congress, however, has yet to enact this legislation and, thus far, the courts have largely failed to extend the Fourteenth Amendment’s equal protection to gays and lesbians.40
Are Transgender Employees Protected from Discrimination?
There is currently no federal law that explicitly prohibits such discrimination, and this type of employment discrimination is prohibited in only a minority of states.41 In 2011, however, the Eleventh Circuit ruled that Title VII’s prohibition against sex discrimination also covers transgender employees.42 In April of 2012, the EEOC declared that transgender federal employees are protected from discrimination under Title VII.43
Marriage and Pregnancy
Can Teachers Be Dismissed for Getting Married?
Not public school teachers. Whatever rules of celibacy private schools may wish to impose on their teachers, public schools can no longer fire teachers for entering wedlock. This is not to say that teachers always had such a freedom. Historically many communities had contractual provisions forbidding marriage. Today such provisions would be struck down by the courts as being arbitrary,44 against public policy, and a violation of the liberty provision of the Fourteenth Amendment, which has been construed as prohibiting local governments from interfering with the fundamental right to marry.45
Can Teachers Be Dismissed If They Become Pregnant?
No. Title VII was amended to include the Pregnancy Discrimination Act (PDA)46 which prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. It also mandates that women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes as other persons. These provisions apply to all employers with fifteen or more employees, including both private and public schools. In a recent case, for example, Lyndsay Greenan proved a claim of pregnancy discrimination under Title VII when she was told that the principal “did not feel it would be a good idea for her to get pregnant during her first year of teaching.”47 After she did become pregnant, she was continually subjected to harassment and humiliation, including “hyper-vigilant” evaluations and inappropriate reprimands, such as being accused of being late to school when she had entered through a side door to the building. After she gave birth, the principal recommended that Ms. Greenan’s contract not be renewed. The court stated that Greenan had alleged a “string of events” that were precisely what was prohibited under the law.
Teachers who are dismissed for becoming pregnant are also protected under a constitutional right to privacy under the liberty clause of the Fourteenth Amendment. In a case from Virginia, for example, school officials told an unmarried teacher that she had three options: (1) get married, (2) take a leave of absence, or (3) resign.48 The teacher chose to take a leave of absence and then sued. The trial court explained that the right to privacy encompasses decisions regarding whether to have a child, and this right extends to both single and married persons. The school district argued that it had a competing interest in preventing schoolchildren from exposure to a single, pregnant teacher, but the court found this claim to be “meritless,” since the effect on students would be “negligible at best.” In addition, the court found a violation under Title VII, concluding that the teacher would not have been forced to take a leave of absence if she had not become pregnant.
Must Pregnant Teachers Take Specified Maternity Leaves?
No. Under the Pregnancy Discrimination Amendments of 1979 to the Civil Rights Act of 1964 (PDA), an employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work.49 If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee, for example, by providing modified tasks or alternative assignments. Only if modifications are not feasible may schools require pregnant teachers to commence a leave without pay at some point which is not required by the teacher’s own physician. Whenever such a leave is taken, however, the teacher taking such leave is protected from losing her job by the provisions of the federal Family and Medical Leave Act of 1991 (FMLA).50 Even before the enactment of these federal laws, the U.S. Supreme Court ruled that school boards could not require that maternity leave be taken at mandatory and fixed time periods without running afoul of the Fourteenth Amendment.51 Thus, a school policy that requires all pregnant teachers to begin leaves at the fourth or fifth month of pregnancy may be administratively convenient, but it conclusively presumes such women to be unfit to teach past those dates. Such a presumption, particularly if unsupported by the employee’s own doctor, is overly broad and unduly penalizes female teachers who bear children; therefore the policy is unconstitutional. A “return policy” that specifies any number of months or years after childbirth before the teacher may return to work is equally invalid, as it is arbitrary. However, under the FMLA, a teacher may be required to commence her maternity leave at least five weeks before the end of a school term and to remain on such leave until the end of the term in order not to disrupt the instructional program.52
The FMLA—which is enforced by the U.S. Department of Labor and through individual lawsuits—generally requires state and local government employers to provide up to twelve weeks of unpaid leave during any twelve-month period for the birth or adoption of a child. Where married couples both work for the same employer, they may divide a total of twelve weeks’ unpaid leave between the mother and father as they choose. Upon return from FMLA leave, an employee must be restored to his or her original job, or to an equivalent job with equivalent pay and benefits. Employees may also bring civil actions against an employer for violations to recover damages for lost wages and employment benefits, as well as reinstatement.
What Are Reasonable Requirements in a Maternity-Leave Policy?
School officials may require a written notice of intention to begin a pregnancy leave as well as a notice of intention of the date of return. They may also require a medical certificate attesting to the medical fitness of the teacher to continue or resume her work. This would amount to a complete individualization of maternity-leave practices. Under no circumstances may a teacher be terminated because of a pregnancy (whether she is married or unmarried or whether she becomes pregnant through artificial insemination or other unconventional means) under the PDA, the FMLA, and local antidiscrimination laws which exist in most states.
Do Teachers on Maternity Leave Receive Disability and Other Employment Benefits?
Yes. Laws today generally require employers to treat pregnancy disability the same as any other disability. The federal PDA requires employers to provide medical benefits for pregnancy-related conditions of employees’ spouses, the same as are generally provided to spouses for other medical conditions.53 The Supreme Court, however, has ruled that the PDA, while mandating equal treatment regardless of pregnancy, does not prohibit a state from requiring employers to give women unpaid pregnancy leave and then to reinstate them to their jobs, when other disabled employees are not given such “special treatment.”54 The Court found that such a state law does not compel employers to treat pregnant employees better than other disabled employees; it merely establishes benefits that employers must, at a minimum, provide to pregnant workers.
Can a School District Enter into a Collective Bargaining Agreement That Allows Female but Not Male Teachers to Take a Leave of Absence for Child Rearing?
No. The Third Circuit Court of Appeals held that a provision in a collective bargaining agreement that allows only female teachers to take a year’s unpaid leave for child rearing violates Title VII.55 The court noted that the Supreme Court had ruled that Title VII did not forbid limited preferential treatment of pregnant employees, but it explained that those benefits were to cover only the period of “actual physical disability on account of pregnancy.” Here, the leave of absence was available to females only, and there was no requirement of any related disability. The court found that the collective bargaining agreement violated Title VII and was void for any leave granted beyond the period of actual physical disability on account of pregnancy, childbirth, or related medical conditions.
Sex Discrimination against Students
How Can Students Challenge Sex Discrimination?
Students who believe that they have been victims of sex discrimination can sue under the U.S. Constitution, federal law, or state law. The Supreme Court has ruled that the equal protection clause prohibits sex discrimination, and that the state can only classify people on the basis of sex when such a law or policy is “substantially related” to an “important governmental objective.”56 The Court also said that the justifications for gender classifications must be “genuine, not hypothesized or invented post hoc in response to litigation.” Applying this standard, the Court struck down the exclusion of qualified women from a male-only public military academy.57
Title IX is a federal law that prohibits sex discrimination “under any education program or activity receiving federal financial assistance. . . .”58 The Office of Civil Rights (OCR) is responsible for enforcing Title IX, and has investigated and resolved many types of discrimination complaints relating to issues such as inequitable funding for female versus male athletics. Students may use Title IX to seek an order to end discrimination and can also seek money damages. In addition, many states have enacted equal rights amendments that prohibit discrimination on the basis of sex.59
Can Girls Try Out for the Boys’ Team?
That depends. Governing regulations promulgated under Title IX by the Office of Civil Rights of the U.S. Department of Education state:
No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.
Separate team. Notwithstanding the requirements of [the above paragraph], a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try out for the team offered unless the sport involved is a contact sport. For the purpose of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.60
In distinguishing between contact and noncontact sports, this regulatory interpretation of Title IX reflects the physiological differences between boys and girls in muscle mass, size of the heart, and formation of the pelvic area, which may, on the average, prevent the great majority of women from competing on an equal level with the great majority of males. These differences permitted the courts to allow classifying students by sex in athletic competition and thus separating boys and girls without running afoul of either the Constitution or Title IX. However, where there was no girls’ tennis team and where a female student was denied the right to play competitive tennis on a boys’ team—a plainly noncontact sport within the meaning of the Title IX regulations—the court found that her rights to equal protection and due process were violated.61
Other courts have also ruled that in noncontact sports, such as golf, swimming, and cross-country skiing, where no teams exist for girls, they may compete for positions on boys’ teams. Where competitive teams are available for both boys and girls, the courts were satisfied with the provision of separate teams, even though the quality of competition tends to be higher for the boys.62
Once Even a Contact Sport Is Open to Students of the Opposite Sex, May Schools Discriminate by Gender?
No. In a case brought against Duke University, Heather Sue Mercer successfully challenged a federal district court’s finding that the above-quoted regulation interpreting Title IX provided a blanket exemption for contact sports, and thus that the university did not discriminate against her during her participation in Duke’s intercollegiate football program. In so ruling, the court held that “where a university has allowed a member of the opposite sex to try out for a single-sex team in a contact sport, the university is subject to Title IX and therefore prohibited from discriminating against that individual on the basis of his or her sex.”63
Ms. Mercer, who had been an all-state kicker in high school, tried out for the Duke football team as a walk-on kicker—the only woman ever to try out for the team. Following a year of participation in conditioning drills and her winning kick in an intersquad scrimmage, the Duke kicking coach informed Ms. Mercer that she had made the team. She was listed as an official member of the team and appeared at all practices, although the following year she did not participate in any games. Yet she was then denied the right to attend summer football camp, was refused the right to dress for games or sit on the sidelines during games, and given fewer opportunities to participate in practices than other walk-on kickers, and eventually dropped from the team. Rather than try out for the team the following fall, Ms. Mercer filed a sex discrimination suit in federal court, alleging violations of Title IX, negligent misrepresentation, and breach of contract. A federal appeals court ruled that once Duke University opened up its football tryouts to girls, it was obligated not to discriminate on the basis of their sex once they made the team.
Can Boys Try Out for the Girls’ Team Even in Noncontact Sports?
Under Title IX, equal opportunity is fundamental. Thus, if a high school has more girls competing in sports than boys, Title IX would allow the boy to try out for the field hockey team. Some courts, however, have not permitted boys to try out for girls’ teams even when those teams did not necessarily involve contact sports. For example, a federal appeals court held that the mere fact that the sport was not identified in federal regulations did not necessarily mean that it was a coed sport.64 The court reasoned that it was a physiological fact that the boys would have an undue advantage competing against girls, and that, if permitted to play, could easily dominate such competition and displace girls from the teams. The policy thus made for fairer and better competition, promoting “participation in which girls, like boys, can learn to win and lose in a fair game.”
What Has Been the Impact of Title IX in Athletics?
The courts and the U.S. Department of Education’s Office of Civil Rights (OCR) have made it clear that Title IX requires that schools must offer girls and boys “substantially proportionate” playing opportunities. Thus, schools should ensure that girls and boys have relatively equal access to athletic facilities and equipment, that they receive the same level of coaching, and that they receive comparable uniforms and playing times. The OCR enforces Title IX by withholding federal funds from schools that are not in compliance.
By requiring that both genders have equal access to athletics, Title IX has had a profound impact on the growth of girls’ sports in high schools and colleges. Before Title IX was passed, the primary physical activities for girls were cheerleading and dance, and only 1 in 27 girls played high school sports; today that number is 2 of 5.65 One other indicator of Title IX’s impact is the fact that female Olympians from the United States outnumbered their male teammates for the first time at the 2012 London Olympics (269–261). In addition, women earned more medals than women from any other nation and more medals than American men.
Despite this positive impact in achieving gender equity in athletics, many issues remain. Boys still outnumber girls and less than two-thirds of African-American and Hispanic girls play sports, while more than three-quarters of Caucasian girls do.66 Girls also face inequities in access to facilities and inferior treatment. In 2009, for example, parents in Richmond, North Carolina, complained when the boys’ baseball team had access to the only baseball field with lights while the girls had to cut their games short when playing on an unlit field. In response to a Title IX complaint, the school district agreed to build a comparable field for the girls.67 Similarly, the Prince George’s County, Maryland, school district entered into a comprehensive agreement under Title IX to make improvements in the softball facilities for girls including adding protective fences and batting cages, and treating girls equally in terms of scheduling games and practice times, equipment, uniforms, publicity, and locker room facilities.68
Most Title IX lawsuits involve colleges and universities. Some colleges, for example, have eliminated some minor men’s sports in order to meet the mandates of Title IX. In Kelley v. Board of Trustees, members of the men’s swimming team brought a Title IX suit against the University of Illinois after the university terminated the men’s swimming program but retained the women’s swimming program.69 The Seventh Circuit found that the percentage of women involved in athletics at the university continued to be substantially lower than the percentage of women enrolled at the school, and concluded that the university’s decision not to terminate the women’s swimming program was extremely prudent.
In a 1997 decision, however, the U.S. Supreme Court let stand a lower court ruling that Brown University was in violation of Title IX when it eliminated women’s gymnastics and volleyball.70 The Brown case attracted national attention because the university had seemed to offer a model athletic program, with seventeen varsity sports for women and sixteen sports for men, and because when Brown eliminated women’s gymnastics and volleyball it also cut men’s golf and water polo. Women, however, made up 51 percent of the student body and only 38 percent of the varsity athletes, and thus the court held that the university was in violation of Title IX. The Brown case thus made clear that colleges and universities cannot deal with budgetary constraints by cutting women’s sports.
Title IX’s impact in college sports has been criticized because of its effect on male athletic programs. Representatives from sports such as wrestling and volleyball have argued that colleges’ efforts to comply with Title IX have led to budget cuts in the less popular men’s sports. They argue that focusing on “equality” for both sexes ignores the reality that men are more interested in participating in sports, and have brought a number of “reverse discrimination” suits. The courts have ruled against such suits,71 but in 2003 OCR issued a policy clarification stating that cutting men’s teams is a “disfavored” method of compliance.72
What Effect Do State Equal Rights Amendments Have?
Although many states have added equal rights amendments (ERAs) to their constitutions, the legal meaning of such amendments is not yet clearly established. There is no uniformity among the states on what the amendments mean for co-educational athletic competition, and variations probably will persist from state to state because such provisions are interpreted by the courts of the respective states and not by the Supreme Court.
Some girls are using such provisions to win the right to compete on boys’ teams that involve contact sports such as football and hockey. For example, under its state ERA, a Washington court ruled that girls are allowed to try out for the football team on an equal basis with boys.73 In Pennsylvania, a court voided a state interscholastic rule that prohibited girls from competing against boys “in any athletic contest”—because it prevented girls from trying out for sports that only had boys’ teams. In addition, the court clearly rejected “the notion that girls as a whole are weaker and thus more injury-prone, if they compete with boys, especially in contact sports.” This notion, wrote the court, cannot be justified “in light of the ERA.”74
These state ERAs can also be interpreted to require boys to be permitted to play on girls’ teams. Such rulings are inconsistent with Title IX, which would only allow boys to try out for the girls’ team when there is no team offered for boys in that sport, boys are underrepresented with regard to total athletic opportunities, and the strength and skill levels of boys are comparable to those of the girls.
Does Title IX Permit Single-Sex Education?
In general, no. Girls and boys must have equal access to the full curriculum without the imposition of stereotypic views of what girls and boys ought to be. Title IX, as well as state laws and local policies, prohibit excluding girls from computer classes or boys from cooking classes, though in some schools they are perpetuated through custom and informal pressures. However, in 2002, a provision of the No Child Left Behind Act required the Department of Education to issue guidelines for single-sex programs.75 In 2006, the Department of Education revised Title IX regulations to make it easier to offer single-sex classes.76 These regulations allow school districts to offer single-sex schools and classes as long as the gender that is given the special class receives a “substantially equal” educational opportunity and if they are “completely voluntary.” Single-sex education is definitely on the rise; one source cites the number of public K–12 schools offering some type of single-sex option as growing from 5 in 1995 to 547 in 2009.77
These regulations seem inconsistent with the Supreme Court’s rulings under the equal protection clause. For example, in Mississippi University v. Hogan, the Court held that it was a violation of the equal protection clause for a state’s all-women nursing school to deny admission to a male.78 The Court ruled similarly when the Virginia Military Institute (VMI) denied admission to women, holding that Virginia failed to offer an “exceedingly persuasive justification” for its admission policy.79 The state had offered two justifications for its policy: (1) single-sex education contributes to diversity in educational approaches and (2) the admission of women to VMI would require modifying its unique adversative method of teaching. Turning to VMI’s first justification, the court traced the long history of sex discrimination at VMI, and concluded that VMI had not shown any serious interest in promoting diversity. Examining the second justification, the Court granted that admitting women would require some changes, but found that there was no proof that women could not succeed in such a program, and VMI could not justify its policy on overly broad assumptions about women. The decision stated that the remedy for VMI’s discrimination was not to create a separate program for women at Mary Baldwin College, as the Fourth Circuit had decided, but for “women seeking and fit for a VMI-quality education” to be offered nothing less. The majority in United States v. Virginia was careful to explain that its decision applied only to educational programs recognized as “unique,” thus leading many schools to conclude that a separate but equal educational program for females might be constitutional if it truly provided equal educational opportunities.
Given this conflict between the Title IX guidelines and these cases, it is likely that lawsuits will challenge the “equality” of single-sex programs. The ACLU recently brought a suit claiming that a single-sex education program at a West Virginia middle school violated both Title IX and the equal protection clause.80 The court examined whether the single-sex classes were truly voluntary. The court ruled that parents had to clearly and affirmatively choose to place their children in a single-sex program, and it was not sufficient to offer an “opt out” provision. In another recent case,81 a federal court held that there was no unequal educational opportunity when a middle school offered single-sex classes in art, music, and physical education. The court found that there was no evidence that there was any disparity in the way the single-sex and coeducational classes were conducted, and no disparity was found in the content taught.
Does Title IX Prohibit Sex Discrimination in All Aspects of a School’s Education Program?
Yes, even if a single program receives federal funds, according to the Civil Rights Restoration Act of 1987.82 The Act amended Title IX, as well as other civil rights acts, to provide that a “program or activity” means all of the operations of an educational institution, regardless of the limited use of federal funds in any particular program or activity. In other words, a school that receives federal support only, for instance, for its science and technology programs may no longer discriminate on the basis of sex in its athletics or music departments.
Can Students Who Are Victims of Sexual Harassment Sue for Damages under Title IX?
Yes, ruled the U.S. Supreme Court in Franklin v. Gwinnett County Public Schools. 83 In that case, a female high school student claimed that her economics teacher at North Gwinnett High School had forced her to have sex with him. She filed a complaint with the Office of Civil Rights (OCR), alleging that she had been subjected to sexual discrimination in violation of Title IX. The U.S. Supreme Court ruled that Congress intended victims of sexual discrimination, including sexual harassment, to have all appropriate remedies available, including compensatory and punitive damages.
In Gebser v. Lago Vista Independent School Board,84 an eighth-grader, Alida Starr Gebser, had joined a book discussion group led by high school teacher Frank Waldrop, who made suggestive comments during the discussion groups and continued to do so when Alida took a class of his during her freshman year. The two began an intimate sexual relationship, which continued until her sophomore year when a police officer discovered them having sexual intercourse in a car. Mr. Waldrop was arrested and terminated by the school board, and the state of Texas revoked his teaching license. When the Gebsers sued the school district under Title IX, the district contended that it had no knowledge of Mr. Waldrop’s conduct and, therefore, was not liable. The Gebsers asked the Supreme Court to apply a Title VII standard, arguing either that the school district was strictly liable for the acts of its teacher or that it should be vicariously liable for acts committed by an “agent” of the district. The Supreme Court eventually upheld the lower courts’ dismissal of the Gebsers’ lawsuit, refusing to apply Title VII principles in the Title IX context.
In so ruling, the Court rejected agency principles that would bind the school board to the acts of its subordinates, such as teachers. Instead, the Court concluded that damages could only be awarded where school officials have actual knowledge of the alleged discrimination and act with “deliberate indifference” in responding to such discrimination. Only where such actual knowledge is attributable to a school employee with authority to take corrective action, however, can such indifference be presumed and liability found. Applying this test to the facts in Gebser, the Court said that evidence of complaints made to the school principal about the teacher’s inappropriate statements made in class did not constitute sufficient notice by a responsible school official of acts of sex discrimination and harassment. Accordingly, the lawsuit was dismissed.
Can Individual Teachers Be Found Liable for Violating a Student’s Rights under Title IX?
No. Only recipients of federal funds, such as school districts and universities, may be liable for damages arising out of violations of Title IX. Individual teachers and administrators, while subject to suit under other laws and theories of negligence, are thus not proper defendants under Title IX.85 This does not mean that students have no redress. On the contrary, in a 2009 ruling the U.S. Supreme Court upheld the right of a student who was a victim of sexual harassment on the school bus to bring a Title IX action against the school district, and a simultaneous action under the equal protection clause of the Fourteenth Amendment against individual school administrators.86 In so deciding, the Court determined that the filing of a Title IX lawsuit against the school district did not preempt the student’s right to seek redress through other legal theories, since Title IX does not include a comprehensive enforcement mechanism.
Can Schools Be Liable under Title IX If Students Engage in Sexual Harassment of Other Students?
Yes. In Davis v. Monroe County School District,87 the Supreme Court settled a long-simmering dispute in the federal appeals courts by defining under what conditions a school district may be liable for peer sexual harassment. There, a fifth-grade female student, Lashonda Davis, had been subjected to a prolonged pattern of sexual harassment by a male classmate, which included lewd comments and inappropriate, unwelcome touching. When the behavior did not stop even after the child and her mother complained repeatedly to the classroom teacher, the mother spoke to the principal, who asked her why her daughter “was the only one complaining,” and allegedly told the mother that he would have to “threaten” the offending student a bit harder.
The Davis family filed suit against the board and certain school officials under Title IX, seeking monetary damages and insisting that even after over three months of harassment no discipline was imposed against the offending male student. Indeed, Ms. Davis was not even permitted to change her seat so that she would not have to sit next to her alleged harasser. The lawsuit also alleged that the board of education lacked a written policy regarding peer sexual harassment and that its personnel lacked any training in dealing with it. The Supreme Court held that a school district must be found “deliberately indifferent,” that is, to have consciously ignored pervasive acts of peer sexual harassment in order to be found liable under Title IX. If a school district is able to demonstrate that its response to such harassment was not “clearly unreasonable,” no liability will accrue. Moreover, the Court ruled that damages for peer harassment are only available where the behavior is “so severe, pervasive, and objectively offensive” that it denies its victims the equal access to education that Title IX is intended to protect. Thus, such things as “simple acts of teasing and name calling” were not considered sufficient grounds for imposing monetary liability on a school district.
A school district was found liable when two male middle school students, John and James Doe, were victims of sexual harassment by other members of their basketball team.88 Players used the gym locker room to get dressed before and after practices, and these younger students were subjected to horseplay and games of “lights out” where the older students humped and gyrated on the seventh-graders. John also had his pants pulled down and was anally penetrated with a marker. Although the students were afraid to report any of these incidents, the basketball coach knew what was going on and did not report it to anyone.
John’s mother found out about the marker incident and reported it to the principal, who suspended the perpetrators for ten days. Later, school officials required the seventh- and eighth-graders to use the locker room at separate times, mandated that its door be kept open, required the coach to more carefully monitor the room, and provided counseling and training in preventing bullying. The court found, however, that the district failed to take remedial action until it was too late, and thus its response amounted to deliberate indifference under the law.
Are Students Protected against Harassment Based on Sexual Orientation?
Yes. In guidelines issued by the U.S. Department of Education’s Office of Civil Rights (OCR) following the Supreme Court’s decision in Davis, the OCR specified that: “if harassment is based on conduct of a sexual nature, it may be sexual harassment prohibited by Title IX even if the harasser and the harassed are the same sex or the victim is gay or lesbian [emphasis added]. If, for example, harassing conduct of a sexual nature is directed at gay or lesbian students, it may create a sexually hostile environment and may constitute a violation of Title IX in the same way that it may for heterosexual students.”89
In Nabozny v. Podlesny,90 a jury awarded nearly $1 million to a gay student in Ashland, Wisconsin, who testified about years of abuse he suffered at school, including being shoved into a urinal and urinated on, an assault and mock rape in a classroom, and a beating so severe that he required hospitalization. He described his many futile efforts to get the school to intervene. His mother told the jury how school officials repeatedly ignored complaints from her and Jamie’s father. Jamie’s former teachers, counselors, and even a classmate who had regularly harassed him (but had never been punished) also came to the witness stand and verified key parts of Jamie’s testimony, including anti-gay statements by school officials in meetings to discuss the assaults. The appeals court concluded that school officials were “deliberately indifferent” to Jamie’s plight and that they violated his constitutional right to equal protection under the laws based upon his gender and sexual orientation.
In Flores v. Morgan Hill Unified School District,91 the Ninth Circuit Court of Appeals ruled that if a school knows that anti-gay harassment is taking place against students, it is obligated to take meaningful steps to end it and to protect students, or run afoul of Title IX. In Flores school officials knew of vicious, even violent anti-gay harassment, but took no meaningful steps to end it or to protect students. On the rare occasions when school administrators did respond to such harassment, it was so half-hearted that it only emboldened the attackers. Students were known to brag about how school officials let them get away with harassment or received light punishments. Ultimately at least two of the victims dropped out of school.
What Rights Do Pregnant Students Have?
Title IX also protects students who are pregnant or who have been pregnant (including new parents) from discrimination, including exclusion from academic and other activities including sports, honor societies, and opportunities for leadership. The law also protects students from harassment based on pregnancy or related conditions, and thus prohibits acts such as name-calling, jokes, or spreading rumors about her sexual activity. Some of the law’s requirements specific to pregnant and parenting students include: (1) a school must provide equal access to school and extracurricular activities for students who are pregnant, who have been pregnant, or who have a child, and special services for temporarily disabled students must be provided for pregnant students as well; (2) separate programs or schools for pregnant and parenting students must be completely voluntary and must offer opportunities equal to those offered for non-pregnant students; (3) absences due to pregnancy or childbirth must be excused for as long as is deemed medically necessary by the student’s doctor; and (4) a doctor’s note can be required for pregnant students to participate in activities only if the school requires a doctor’s note from all students who have conditions that require medical care.92
In June 2013, OCR published a pamphlet describing ways that schools can more effectively support the academic success of pregnant and parenting students.93 The pamphlet notes, for example, that a school must make reasonable adjustments to accommodate the pregnancy status and might do so by providing a larger desk or allowing more frequent trips to the bathroom. The school must also excuse a student’s absences due to pregnancy, and must offer the opportunity to make up any work she has missed; for example, a school could accept an online course credit program.
What Are the Rights of Transgender Students?
This area of the law is just developing, and the legal protections will vary by state. A minority of states offer some form of protection, usually under a state’s antidiscrimination law.94 For example, California just became the first state to require that public K–12 schools permit transgender students to choose which restrooms they wish to use and which athletic teams they wish to join.95 In Colorado, that state’s civil rights division recently ruled in favor of a first-grader who was barred from using the girls’ bathroom because she is transgender.96 Coy Mathis was born with male sex organs, but identified as a girl from the age of eighteen months. The school district had allowed her to use the girls’ bathroom during Coy’s year in kindergarten, but the next year told her that some students and staff might be uncomfortable with that arrangement, and then required her to use a staff or a gender-neutral bathroom. In the first ruling of its kind,97 the Colorado Division of Civil Rights ruled that relegating Coy to using a set of restrooms which no other student was likely to use “would prove highly disruptive to her learning environment and overtly demonstrate her separateness from the other students.” In Maine, however, a court reached the opposite result.98 There, the court concluded that a school district did not violate a transgender student’s rights under the Maine Human Rights Act when officials prohibited the biologically male student from using the girls’ restroom. The court explained that “there is . . . no basis to require accommodation [to the student’s request] under existing law, regulation, or statute.”
In a recent suit brought under Title IX, a California school district has entered into a settlement agreement with the Department of Justice’s civil rights division over the district’s treatment of a transgender student.99 The student began identifying as a boy from an early age, and around the age of five or six told his parents that he was praying to God to be put in a male body. When he entered middle school, officials refused his request to use the male restroom; when the district sponsored an overnight camping trip for all seventh-graders, the student was required to stay in a separate cabin. The family filed a complaint under Title IX, and the school entered into a “resolution agreement” establishing that the boy can use the male restroom and also addressing policies and staff training for assisting the needs of transgender students. Officials from the Justice Department made clear their position that “all students, including transgender students, who do not conform to sex stereotypes, are protected from sex-discrimination under Title IX.”
Are Students Protected from Having Their Sexual Identities “Outed”?
As of now, there is no clearly established law under the Fourteenth Amendment protecting this type of privacy right for high school students. In one recent case, for example, the Fifth Circuit held that two Texas softball coaches were not liable after they confronted a 16-year-old student about whether she was a lesbian and then “outed” her during a meeting with her mother.100 In the one dissenting opinion, a judge argued that the courts have recognized a right to privacy with respect to personal matters, and that the student’s privacy rights should have been balanced against the interests of the coaches—protecting the student from her girlfriend’s alleged “bad influence” and eliminating team dissension caused by rumors of the lesbian relationship.
Are Teachers Protected If They Protest Unequal Treatment of Students Based on Gender?
Yes. As discussed in Chapter 1, Coach Roderick Jackson complained to officials of the Birmingham, Alabama, school district that the girls’ basketball team, which he was assigned to coach, was afforded equipment, locker space, and practice facilities that were inferior to those given to the boys’ team. When he was removed from his coaching position he sued, claiming that school officials unlawfully retaliated against him for asserting the Title IX rights of his female players to receive equal access to athletic programs and opportunities. Rejecting the lower court’s determination that Title IX did not afford individuals the right to seek any remedy for retaliation claims, the Supreme Court ruled that Title IX contained an inherent right to protest its violation without fear of retaliation by school officials, and that even though he was a male, Coach Jackson had the same rights as female athletes to protest their unequal treatment.101 This led the Court to remand the case to the lower courts with instructions to allow Coach Jackson to prove whether he was, in fact, removed from his coaching position in retaliation for having raised concerns about unequal playing conditions for his female athletes.
Summary
Over the past twenty years there have been significant improvements in gender equality in the schools, in large part as a result of the application of federal laws. It is no longer legal to pay men more than women for the same work, though differences in pay are still acceptable if based on significant differences in workload and responsibilities.
Males may not be given preference over females in administrative positions or in other job assignments. Federal legislation has prohibited compelling pregnant teachers to leave their jobs on some predetermined date; that is now a decision left entirely up to a woman and her physician. Federal and local legislation also prohibit sexual harassment in the workplace.
Sex discrimination and stereotyping in the school life of students have also been successfully challenged. Preferential treatment of boys in school athletics has spawned many lawsuits as well as OCR regulations intended to equalize access to sports for both boys and girls. Title IX and its regulations have opened the door to improving opportunities for girls to participate in competitive sports at all levels, and have been credited with the worldwide success of women’s sports. The larger number of young women applying to colleges as compared with men is further evidence of the removal of gender barriers in education.
Many states have enacted equal rights amendments, which protect both women’s and girls’ rights. There is no uniform interpretation of such amendments, however, in the area of sports or the rights of transgender people.
Sexual harassment and sex abuse by teachers against students of the opposite sex have formed the basis for the imposition of monetary damages under Title IX, but only where school officials with the power to intervene have actual knowledge of such activities and display “deliberate indifference” by failing to take appropriate action. Similarly, where students are victimized by sexual harassment committed by their peers, including harassment based on sexual orientation, a school district may have monetary liability where school officials have knowledge of the harassment, the harassment is sufficiently severe and pervasive as to deny victims equal access to education, and school officials remain deliberately indifferent to such conduct.
Pregnant students may be neither excluded from school nor compelled to attend separate classes or separate schools. Similarly, courts now tend to protect the rights of such students to participate in extracurricular activities, though health and safety considerations may be used to exclude an individual from a particular activity where the student’s own physician (and not merely school officials) so determines.
References
Schimmel, D., Stellman, L. R., Conlon, C. K., & Fischer, L. (2014). Teachers and the Law (9th ed.). Pearson Education (US). https://bookshelf.vitalsource.com/books/9780133570878