Whitney Phinney, a former graduate student at the University of Colorado’s medical campus, thought she had permission to bring her infant daughter, Sunny, to class. She’d spoken to the professor about her child-care challenges, and the professor had been sympathetic, telling Phinney that she’d put herself through law school with three children under the age of five.
But when Phinney brought Sunny to the Biotech Entrepreneurship class one Monday in the winter of 2018, and breastfed her during a guest speaker’s presentation, the professor wasn’t pleased. The following week, Phinney received an email from the director of her program telling her the breastfeeding made some in the classroom uncomfortable and suggesting she step outside if she needed to nurse.
“We also have to wonder what impression it might leave on the speakers regarding the professional conduct of our students,” the director added.
Mortified and angry, Phinney fired back that breastfeeding in public is covered under Colorado law, and anybody who was uncomfortable with it should be the ones to step outside.
“It is hard enough to be a mother working full time and attending graduate school, without having to deal with this type of harassment,” she wrote. Phinney notified the director and the professor that she was dropping the class and filed a complaint with the university’s Office of Equity and the federal Office of Civil Rights, or OCR.
Pregnant and parenting students have been protected under Title IX, which bans gender discrimination in schools and colleges, since it was signed into law in 1972. Under Title IX, colleges must treat pregnant students the same as any other student with a temporary physical or emotional condition, provide “reasonable and responsive” adjustments to their regular programs, and excuse all absences a doctor deems medically necessary. They must not treat fathers and mothers any differently from one another.
Yet 50 years after the passage of Title IX, some faculty members and administrators still aren’t sure what the law says about pregnant and parenting students, advocates and lawyers said. They said the rules are open to interpretation and are especially murky when it comes to parenting students, who make up one in five undergraduates today.
That could soon change. As part of the update proposed to Title IX rules this past summer, the Biden administration made explicit its expectations of colleges — including careful record-keeping about pregnant students — and affirmed that the law covers lactation.
But the proposed rules, coupled with the recent Supreme Court decision striking down Roe v. Wade, are likely to cause a spike in complaints against colleges while also making them — and their students — vulnerable in states looking to prosecute violations of anti-abortion laws, warned higher-education lawyers.
“We’re going to have more pregnant students, and we’re going to have more enforcement by OCR,” said Melissa Carleton, an attorney with Bricker & Eckler, a law firm that represents colleges in Title IX cases, in a recent webinar.
And given the lack of attention most colleges have paid to parenting students, some advocates wondered whether institutions are prepared to meet their legal obligations to this vulnerable population — never mind their moral one.
“These students have been allowed to fall through the cracks in higher education,” said Nicole Lynn Lewis, founder and CEO of Generation Hope, a nonprofit that supports teen parents.
An Overlooked Population
Though the number of student parents has been growing for years, many colleges are just starting to come to terms with the size of the population on their own campuses, Lewis said. Programs designed for pregnant and parenting students are growing in number but remain relatively rare.
“For too long, higher education has been in denial that this population exists,” Lewis said. “They’ve gone underresourced, undersupported, and unwelcomed on many campuses.”
Part of the problem may be that colleges aren’t sure how many of their students are parents. The best institutional-level estimates come from the Free Application for Federal Student Aid, which asks applicants if they have dependents. But even the FAFSA provides an incomplete picture, since student parents don’t always claim their dependents; some “dependents” are adults, and many students don’t complete the form at all.
For too long, higher education has been in denial that this population exists.
The most frequently cited national statistic — one in five undergraduates — appears in a report by the Institute for Women’s Policy Research that was based on a federal survey conducted in 2015-16. The report says that 70 percent of student parents are mothers, and two in five are single mothers.
Student parents face several hurdles to completion, including a nationwide shortage of affordable child-care options, a lack of lactation space and family housing on many campuses, and the daily struggle to juggle work, school, and family responsibilities. Though they have higher GPAs, on average, than their nonparenting peers and are often highly motivated, only a third earn a degree or certificate within six years.
Title IX aims to eliminate the most basic of the barriers to completion for pregnant and parenting students, ensuring that they aren’t discriminated against in academic, educational, athletic, and extracurricular programs.
In its guidance to schools and colleges, the Education Department has stressed that teachers and professors must excuse medically necessary absences and allow students to submit work after the deadline, regardless of instructors’ own policies on attendance and make-up work.
In practice, though, pregnant students sometimes have to fight to have absences excused or to receive extensions on assignments, advocates said. They may face pressure from faculty members to drop a class or to return to class shortly after giving birth.
“There’s this misconception that if a professor doesn’t like something, that somehow trumps federal law,” said Jessica Lee, director of the Pregnant Scholar Initiative at the University of California, Hastings College of the Law.
Lee said she’s spoken with students who were failed because they missed exams when they were having a miscarriage, and students who were just discharged from the hospital, still struggling to stand, and were asked by their college, “when are you coming back?”
Discrimination against parenting students can be trickier to pin down, but it is “often rooted in outdated notions about caregiving and sex stereotypes,” said Cassandra Mensah, a lawyer on the workplace-justice and education team at the National Women’s Law Center. It shows up in comments suggesting that a mothering student isn’t committed to her studies, she said, or that a father shouldn’t have to miss class for his child’s doctor appointments.
‘Who’s Going to Believe a Student?’
There’s no way to track how many complaints alleging pregnancy- or parenting-related discrimination have been filed with the federal Office of Civil Rights, since the agency provides details only about cases that resulted in a resolution agreement.
A search on the agency’s database of “recent resolutions,” using the keyword “pregnancy,” yields 23 cases involving colleges and technical schools between 2013 and 2020. They include a beauty school that forced students to withdraw upon reaching the seventh month of pregnancy; a state college that required nursing students to submit a doctor’s note saying they were physically able to participate in clinical rotations; and a community college with a professor who told a student who gave birth on the day of an exam that she’d have to take an incomplete or retake the class.
The most recent resolution, which hasn’t been added the database, came in June against Salt Lake Community College. It involved a student with morning sickness whose professor suggested she drop the class, telling her she “needed to take some responsibility for the things that were going on.”
Those cases probably represent only a tiny fraction of the complaints filed against colleges, though. Many cases are handled internally, never reaching federal investigators or the courts, advocates said. And the vast majority of all complaints are settled quietly, behind the scenes.
“Most of the time, it just takes a bit of education,” Lee said. “Folks don’t understand their obligations, but once they do, they’re quick to change.”
Occasionally, though, a case is so egregious that it leads to a high-profile and costly judgement against a college. That’s what happened with Tina Varlesi, a former graduate student in the social-work program at Wayne State University, whose faculty adviser failed to protect her from an internship supervisor who repeatedly told Varlesi to stop rubbing her belly and to wear looser clothing, saying the men at the facility were being “turned on by her pregnancy.”
Varlesi, who was eventually flunked by the supervisor, sued the college for pregnancy discrimination and retaliation and was awarded $850,000 by the courts.
“I knew it was wrong, and I knew I had recourse,” said Varlesi, whose failing grade kept her from graduating in 2008. Still, she said, several lawyers and professors discouraged her from suing.
“I was told, ‘Who is going to believe a student over a professor?’” she said.
Varlesi was rejected by several other social-work programs — she believes she was blacklisted — but was eventually admitted to the University of Michigan at Ann Arbor, earning her master’s in social work in 2014. Now in her 40s with a teenage son, she provides wellness coaching and antidiscrimination training to companies, and occasionally consults for lawyers pursuing cases similar to hers.
But it’s still painful for her to recall how she went from honors student to pariah so quickly.
“There are some days where I’m just like …” she said, her voice trailing off. “I lost so much time.”
Closing the Gaps
The proposed updates to the Title IX rules governing pregnant and parenting students have been overshadowed by far more controversial changes involving gender identity and the handling of sexual-misconduct cases. Yet they are not insignificant, advocates said.
Under current rules, colleges cannot discriminate against students on the basis of “pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.” But the existing regulations don’t define those terms, leaving it open to debate whether the law covers lactation and medical conditions that are not related to recovery, such as gestational diabetes and preeclampsia.
The proposed rules would clarify that lactation is covered under the law and explicitly include medical conditions related to pregnancy. In its commentary on the rule, the Education Department said it was seeking to close perceived “gaps in coverage.”
The rules would also spell out the responsibility of campus Title IX coordinators, who must enforce the law. Among other things, coordinators would be required to notify pregnant students of their rights under Title IX, determine which modifications are appropriate, and document when and how they are provided.
“These new regulations cut out the gray area,” Lee said. “They’re going to make the pathway a lot more clear for both students and colleges.”
She said students often aren’t aware they’re entitled to accommodations and don’t know how to request them, if they are.
Discrimination against parenting students can be trickier to pin down, but it is “often rooted in outdated notions about caregiving and sex stereotypes.”
But the process of deciding which accommodations are “reasonable and responsive” to students’ needs will never be black and white, said Joshua Richards, a lawyer with the firm Saul Ewing Arnstein & Lehr, who has advised colleges on Title IX cases. Students’ needs vary, and what’s reasonable in one situation may be completely unworkable in another, he said.
Take a pregnant student’s request to attend classes remotely, for example. A hybrid program might have no problem accommodating that shift. But it wouldn’t work in a nursing program where students have to handle a dummy or administer an injection, Richards said. Title IX allows colleges to refuse requests that would “fundamentally alter” the program or activity. And what’s fundamental is open to interpretation.
Richards also worries that the proposed rules’ well-intentioned record-keeping requirements for Title IX coordinators will create legal risk for colleges in states where abortion is now illegal.
In Texas, for example, private citizens can sue anyone who “aids or abets” an abortion. If a college’s records show that staff had provided formerly pregnant students with information about how to obtain abortion pills through the mail or had offered them advice on traveling out of state, the college or its employees might be sued.
“In some ways, the regulations put schools on a collision course with state laws,” he said. Richards helped draft comments for several higher-education associations that asked federal regulators to strike the pregnancy section from the rule and issue separate regulations.
Similar concerns have been raised by advocates for pregnant students who fear that a zealous attorney general might subpoena the records to identify and prosecute students who have had an abortion. They’re asking the Education Department to retain the record-keeping requirement but instruct colleges on how to protect student privacy.
Up to the Professor
When it comes to parenting students, the proposed new rules shed little light on which accommodations colleges should provide. They don’t specify, for example, whether professors must excuse absences due to child-care disruptions or children’s medical appointments.
The one exception deals with lactation, where the draft rules would also require colleges to provide students with a lactation space, much as federal law already requires for employees. Under the rules, the space must not be a bathroom and must be “clean, shielded from view, free from intrusion from others.”
It’s not clear that such language would have protected Phinney, whose professor told civil-rights investigators she’d never given Phinney permission to bring her daughter to class. If protections for lactation remain in the final rules, it will be up to the Office of Civil Rights and the courts to decide what constitutes breastfeeding discrimination. In doing so, they’ll need to answer questions like, are students entitled to breastfeed anywhere on campus or only where children are permitted?
In Phinney’s case, a campus civil-rights investigator found that the professor and the program director had offered “legitimate educational reasons for wanting to ensure the classroom environment was professional and free from distractions,” and that their refusal to allow Phinney to breastfeed in class did not prevent her from participating in the program.
“It is within a faculty member’s discretion of whether or not children are allowed in the classroom setting,” the investigator wrote.
Phinney appealed the decision, and the campus Title IX coordinator upheld it, noting a lack of clarity about whether breastfeeding was covered under the law as “a related medical condition.” Federal investigators dismissed Phinney’s complaint while the internal appeal was pending, and Phinney did not refile it.
After dropping the class, Phinney switched to another program at the University of Colorado’s medical campus and finished in 2020. But it wasn’t easy, she said.
“I really struggled to continue because I felt completely unwelcome there, like I didn’t belong, and had to choose,” she said. “I had to choose between being a student and being a parent.”
Phinney didn’t stop advocating for student parents, however. She co-founded a parent-support and “lactivist” group called “Milk and Cookies,” and pushed the university to adopt a sweeping lactation policy. The medical campus passed what she considers a “watered down” version of the policy in 2021, and the system enacted its own policy this year.
‘A Floor, Not a Ceiling’
Now, with the Education Department signaling that it will take a tougher stand on pregnancy discrimination, advocates and lawyers alike are advising colleges to consider crafting policies that cover not just lactation, but all accommodations for pregnant and parenting students. Such policies are becoming common among graduate schools, but they are less often seen at the undergraduate level, Lee said.
Carleton, the Title IX lawyer, suggested that colleges conduct a cross-campus review of their policies, considering how they approach pregnancy across the campus, including in athletics, research, and other domains.
Colleges shouldn’t stop there, either, Carleton said. “The law sets a floor, not a ceiling,” she said, arguing that how colleges treat their pregnant and parenting students affect everything from recruitment and retention to fundraising and public relations. “There are legal requirements, and then there is an institutional ethic of care,” she said, that helps students graduate.
With that goal in mind, a small but growing number of colleges are taking a systemic look at how they support student parents — and where they’re falling short.
Montgomery College, in Maryland, which was part of an inaugural cohort of four colleges chosen to be a part of Generation Hope’s FamilyU technical-assistance program in 2021, has begun surveying its student parents to determine their needs and has created a new website pointing them to resources. It’s added more diaper-changing stations, lactation pods, and highchairs to its campuses, and has started a blog where student parents can share their stories.
The next step, said Ja’Bette Luisa Lozupone, director of student affairs for the Germantown campus, will be tackling the policies and practices that can derail student parents and getting a better handle on their outcomes.
“We want to find out how many we lose at each point, from registration to completion,” said Lozupone, whose job is focused solely on student parents. “When you have a fifth of the population that is parenting, that has the potential to really move the needle when it comes to enrollment.”
Student parents are pushing for further improvements, including a study area for families and the option to take all courses online. But they said they appreciate the attention the college is paying them.
“They’ve brought more awareness to student parents,” said Rocelyn Alvarado, president of the college’s newly formed Student Parent Alliance.
Alvarado, who is on track to graduate this spring, said she hopes the alliance will “provide a loving and supporting environment” that will encourage other student parents to persist despite the challenges.
“Student parents are often criticized, judged, and looked down upon,” even by their families, said Alvarado, whose own family questioned her decision to enroll in college after she became pregnant at age 19.
Alvarado said her professors have been understanding when she’s needed to miss class when her daughter is sick, never demanding a doctor’s note. But she’s never asked for an extension on an assignment, since her professors are always telling students to plan ahead.
“I don’t want to use being a student parent as an excuse,” she said. “I want them to see me as an equal.”