I love writing with good news, especially good news that seems to have flown under the media’s radar. Last month, the Michigan Department of Education (MDE) did the right thing and adopted a new policy to ensure that its homebound/hospitalized instruction program would no longer discriminate against students who are pregnant and parenting in violation of Title IX.
You see, we discovered that under Michigan state law, all school districts are required to provide homebound or hospitalized instructional services to students who are absent for 5 or more consecutive school days because of a medical condition. As a matter of educational policy, this is a good thing because it helps to encourage students who are absent for an extended period to keep up with their work so they can stay engaged and remain on track to graduate. The problem was that the guidelines MDE used to implement that law expressly excluded pregnant students and those recovering from childbirth from receiving such services. That is precisely the sort of discriminatory treatment that Title IX was meant to prohibit and has prohibited for over 38 years.
We brought this to MDE’s attention last fall via a letter to the State Superintendent of Public Instruction. Thankfully, MDE was responsive to our concerns, changed its guidelines, and notified all superintendents in Michigan of the new guidelines. Now the guidelines, after stating the eligibility requirement that the student be absent from school for a medical condition, state:
The State School Aid Act, MCL 388.1601, et seq, does not define the term “medical condition.” But on the basis of federal law and federal regulations, that term, in this context, must be read to include pregnancy, childbirth, and recovery. Title IX, 20 USC § 1681(a), requires that no student may be denied participation, on the basis of gender, in any education program or activity receiving Federal financial assistance. The federal regulations that implement Title IX include a requirement that with respect to any service offered, pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery must be treated in the same manner and under the same policies as any other temporary disability. Homebound/hospitalized service is an educational program offered for the benefit of students temporarily unable to attend school for medical reasons. In accordance with federal law and regulation, pregnancy, childbirth, and recovery must be treated as any other medical reason for prolonged absence from school.
Also helpful is the statement — where the revised guidelines talk about the requirement that students get written certification of their need to be absent from their attending physicians — that:
Under federal law, school districts must “treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery there from as a justification for a leave of absence for so long a period of time as is deemed medically necessary by the student’s physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began” 34 C.F.R. 106.40(b)(5). The law does not require districts to excuse non-medically necessary “maternity leave” for pupils and or absences due to the illness or the medical appointment of a child for whom pupils are the custodial parents. However school districts are encouraged to develop an attendance policy that would authorize a reasonable period of time away from school immediately after delivery, even where medical need does not so require, and during the illness or medical appointments of a pupil’s child. Such “excused” absences would allow pupils to be eligible to be counted in attendance under the pupil accounting rules. For those pregnant or parenting pupils ineligible for homebound/hospitalized instruction, either because their excused absences are not medically necessary or because the pupils are anticipated to be absent for five or fewer days, it would be up to the district to determine how the pupil would make up lost course work during the excused period, provided that the process adopted by the district is consistent with that applied to all other types of excused absences or course withdrawals. It is recommended that school districts have a written policy that describes: a) The procedures the pupil must follow to make up the course work consistent with those applied to all other types of excused absences or course withdrawals; b) The conditions that must be met for the pupil to achieve the grade or credit, consistent with those applied to all other types of excused absences or withdrawals and; c) The pupil’s full range of educational options during and after the leave, including the unconditional return to regular schooling.
We applaud the Michigan Department of Education for admitting its error and taking prompt action to correct it. It’s now critical that Michigan’s school districts and schools get the message loud and clear and abandon discriminatory practices and use homebound instruction services to help keep pregnant and parenting students on track to succeed.
For more information on providing equal treatment for pregnant and parenting students pursuant to Title IX, check out our FAQs for schools. If you think your school may not be complying with the law, please send an email to us at firstname.lastname@example.org.