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Title IX and babies?

Mary Ann Mason, professor, Berkeley Law | December 3, 2014

This fall, Gov. Jerry Brown signed two bills that could greatly improve the lives of women in California higher education, and serve as models for the nation. The first, the “yes means yes” law makes  California the first in the nation to have a clear definition of when people agree to sex. The law goes further than the common “no means no” standard, which has been blamed for bringing ambiguity into investigations of sexual assault cases.

The second, less heralded, act focuses on pregnancy discrimination; it will help young women graduate students to achieve their professional goals.

The first such state law to be enacted, the bill orders compliance with Title IX’s protection of graduate-student women against pregnancy discrimination and offers protection beyond the explicit scope of Title IX.

Why did California have to pass a law to insist that higher ed complies with a federal law that was passed in 1964 and whose regulations explicitly protect students from pregnancy discrimination in admissions, hiring, coursework accommodations, pregnancy leave policies, workplace protection and  health insurance? Because almost no one in higher education recognized it; certainly not the students.

Some Title IX attention has been given to pregnant high school students so that they may finish high school, but scant attention has been given to higher education until recently. It was believed by most that Title IX only covered athletes — and in the last year — sexual assault on campus.

Law’s journey

The bill began its journey last winter. I received an email from a science fellow in in the California legislature. She said her assemblywoman wanted to do something for pregnant women graduate students and she knew about my work on pregnancy discrimination and Title IX. Our research work at Berkeley, mostly accomplished while I was the Dean of The Graduate Division, clearly revealed that childbirth is the main reason why young female scientists drop out of the academic pipeline with similar patterns in other fields.

What does pregnancy discrimination look like? You can see it in the attitudes of some scientists, who seem to believe that mothers cannot be serious scholars because academic science demands exclusive attention to research.

A Berkeley postdoc in neuroscience who is also a mother told me “I don’t think I’ll ever do a  tenure-track job and people were very upfront about that when I had my child.” And consider the postdoctoral particle physicist, Sherry Towers, who was effectively blacklisted by her adviser when she had a baby. When she was pregnant her adviser said that he would refuse to write her a letter of recommendation unless she returned from her pregnancy leave soon after giving birth.

In March, the science fellow at the legislature told me the amendment was ready; would I testify? She had lined up convincing support, mostly from student associations and unions and women’s advocacy groups.

I prepared my 34 slides and a killer talk. She told me gently that I had two minutes — but the committee (on higher ed) had already received copies of some of my work. The bill passed the Higher Education Committee without opposition; in fact the committee was enthusiastic.  It sailed through a full assembly vote and on to the senate for hearing and a unanimous “yes” vote. There it passed easily without a single opposition vote.

The bill focuses only on childbirth leave for graduate students — and it includes fathers and partners who are not the birth parent.  It is more generous than Title IX. Title IX  regulations only state that if an institution does not have a pregnancy-leave policy  for students (and few do), they must provide a leave as long a period of time “as is deemed necessary by the  student’s physician, at the conclusion of which a student shall be reinstated to the status she held when the leave began.”

Protective provisions

The new California law states that a student may choose  to take a leave of absence for childbirth according to the policies of the institution “or for a period of 12 additional months, whichever is longer” and return in good academic standing. It also allows a graduate student who is not the birth parent to take a leave of up to one month.

Currently, for women graduate students who are in peak child-bearing years, pregnancy leaves (if granted at all) are at the discretion of their professor or adviser. With no rules in place, I think of this as the “kindness of strangers” policy. Strangers (the faculty gatekeepers, rather than clear cut university policies) are often not so “kind.”

This law is written only for graduate students, in part because promoting women in science under Title IX is a publicly stated Obama initiative, and our research focused on this group. However, students in medical school, law school and other professional schools are also in their prime childbearing years.

And undergraduates have babies also. A great many community-college women, many not so young, drop out before finishing a degree or credential when they have a baby. Their dropout rate is 64 percent higher than that of their counterparts who did not have children.

In facing the mandate of this new law, in California colleges and universities should understand that Title IX’s Pregnancy Discrimination protection applies to all students.  Policies may be adopted to meet the needs of each higher-education constituency, but it should also be remembered that providing accommodation rules for pregnant students is not just a “good thing” to do, or just for California; it is federal law. It is time for all states to recognize this.

Comments to “Title IX and babies?

  1. I am Spanish and here many times getting pregnant means being dismissal, should be better defended, because it is a right. Good article. Many thanks.

    — Anabel

  2. It always struck me as strange that we treat students so differently than employees in general when it comes to such matters. With the 1996 Family Medical Leave Act, employees got the right to time off for a period of time without losing their job or privileges associated with it, to care for a family member, without pay. California for its part provides some funding for this time off with its Paid Family Leave. Now, students are at last afforded some of the same protections.

    But really, much of the struggle is not the first three months, but over the long haul AFTER maternity leave is over, during the normal course of graduate work. A case in point, consider the strange constructions of what a full time work load as a graduate student, with a 12 unit work load considered full time per the registrar. In addition to this, many graduate students top that off with a 25-50% GSI/GSR appointment to fund themselves, effectively leaving them with an officially sanctioned 125-150% workload.

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