Boston Lawyer Blog

Beyond Sports and Sex Part 5: Title IX and Pregnant and Parenting Students

Published on: May 31, 2018 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have not gotten as much attention in the media or political arena as have Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination. Part 2 examined how Title IX protects students from non-sexual sex-based harassment. Part 3 looked at Title IX and dress codes. Part 4 covered when Title IX applies to religious schools.

Teen pregnancy has long been a subject of public health concern, political debates, and more recently, popular reality TV programming, but the legal issues surrounding it have not garnered much attention. Title IX prohibits sex-based discrimination in schools. In 1975, three years before pregnancy discrimination in employment would be prohibited by the Pregnancy Discrimination Act, the Department of Health, Education, and Welfare (now the Departments of Education and Health and Human Services) issued regulations implementing Title IX that included a prohibition on discrimination against students based on marital or parental status. One provision specifically states: “A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom.”

New Criminal Justice Reform Act Broadens Opportunities for Courts to Resolve Cases Before Arraignment

Published on: April 18, 2018 | by Naomi Shatz

On Friday, Governor Baker signed a sweeping criminal justice reform bill into law, and because it contained an emergency preamble it went into effect upon signing. The law makes significant changes to defendants’ ability to get a pre-arraignment diversion — a way to resolve a case without any criminal record.

Under the old law (Mass. G.L.c. 276A), a defendant could obtain a pre-arraignment diversion if she met all of the following criteria, set forth in section 2 of the law:

The case was one where a prison sentence was possible and the district court had final jurisdiction;
Was between ages 18-22 or was a military veteran;
Had not previously been convicted of any crime;
Did not have outstanding warrants or criminal cases in any court;
Received a recommendation from a program that she would benefit from the program.

Beyond Sports and Sex Part 4: When Does Title IX Apply to Religious Schools?

Published on: March 7, 2018 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have not gotten as much attention in the media or political arena as have Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination. Part 2 examined how Title IX protects students from non-sexual sex-based harassment. Part 3 looked at Title IX and dress codes.

Title IX is a federal law that prohibits schools that accept federal funding from discriminating on the basis of sex. As I’ve discussed in previous pieces, this includes discrimination in providing athletic opportunities, failing to properly address sexual harassment and sexual assault, gender-based harassment and bullying, and dress codes. It is generally understood that Title IX applies in all public schools, from kindergarten through graduate programs, and also applies to most private colleges because of their participation in federal financial aid programs. But courts have held that Title IX may also apply to private (including parochial) elementary and high schools. Conversely, there are private colleges and universities that have taken steps to ensure that Title IX does not apply to them. It is important for any students or parents dealing with discrimination issues at school to understand whether Title IX may protect them. CONTINUE READING ›

Massachusetts Courts Grapple with Universities’ Duties of Care Toward Their Students

Published on: January 16, 2018 | by Naomi Shatz

In news that might seem unsurprising to both lawyers and non-lawyers alike, on December 28 a judge in the Superior Court held that Endicott College was not liable for a student who got extremely drunk at a dorm party, and then assaulted three fellow students, leaving two with broken facial bones. After serving part of his four-year sentence for the assault and being paroled, the student brought suit against the college alleging that the college’s negligence caused his actions. The student argued that the college was liable in negligence for his actions under three theories: (1) social host liability (which applies to those who negligently serve alcohol to someone who later injures someone as a result of being intoxicated); (2) that the college had a “special relationship” with the student that imposed a duty of care to protect the student; and (3) that the school was negligent in supervising the student and preventing him from harming himself. The judge, assessing whether the college owed some duty of care to the student, determined that “No Massachusetts case . . . has ever determined that a special relationship exists between a college or university or its officials and its students that would impose a duty to protect students from the voluntary use of drugs or alcohol.”

Massachusetts Moves Toward New Law on College Sexual Assault

Published on: November 8, 2017 | by Naomi Shatz

On November 2, 2017, the Massachusetts Senate unanimously passed a bill that would dictate how colleges and universities in the Commonwealth must handle sexual assault allegations. As a mecca for higher education, with over 100 colleges and universities, Massachusetts could have been a leader in tackling campus sexual assault in a way that both protects the educational rights of victims of assault, and provides fair procedures to both victims and the accused. The bill that just passed, unfortunately, fails to achieve this goal.

The Senate’s final version of the bill more or less tracks the Obama-era guidance on sexual misconduct; guidance that was revoked by the U.S. Department of Education in September. Despite various individuals and groups (myself included) testifying to the Massachusetts legislature in April about the need for procedural protections for both the complainant and accused in these cases, the Senate bill focuses exclusively on the needs of complaining students, without providing procedural protections to both students that would enhance transparency and ensure that each student can adequately advocate for him/herself.

Beyond Sports and Sex Part 3: Title IX and Dress Codes

Published on: October 31, 2017 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination. Part 2 examined how Title IX protects students from harassment based on sex stereotyping.

Title IX prohibits educational programs that receive federal funding from discriminating on the basis of sex. Because discrimination by definition means treating one person differently from another, there are only a few limited areas in which schools can draw explicitly gender-based distinctions and not run afoul of Title IX.

One area where schools have historically had explicitly gendered policies is in their dress codes. When Title IX was initially enacted, the implementing regulations prohibited sex distinctions in “rules of appearance.” This regulation seemed to squarely prohibit the implementation of gender-specific dress and grooming codes. However, the Reagan administration revoked those regulations in 1982, fewer than ten years after they had been issued, indicating that differentiating on the basis of sex in “rules of appearance” might very well be permissible under Title IX.

Beyond Sports and Sex Part 2: Title IX and Bullying/Harassment Based on Gender Stereotypes

Published on: October 24, 2017 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination.

To those people who have been following the social movement around campus sexual assault (and this blog), it may be clear by now that Title IX prohibits sexual harassment–that is, harassment that is sexual in nature. But Title IX also prohibits sex and gender-based harassment–that is harassment of someone because of their sex, whether or not the nature of the harassment is sexual. Courts have relied on case law developed under Title VII, which prohibits employment discrimination, to hold that Title IX prohibits harassment against students simply because of their sex. For example, the Eighth Circuit has held that Title IX prohibits harassment where “the underlying motivation for the harassment is hostility toward the person’s gender.” CONTINUE READING ›

Beyond Sports and Sex Part 1: Employment Discrimination Claims Under Title IX

Published on: October 5, 2017 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault.

The common conception of Title IX is that it is a law aimed at protecting students. That conception is too limited. Title IX’s reach is broader than the student body—it is directed at the educational program that receives federal funds, and broadly prohibits discrimination in such programs. The language of the statute states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Federal Regulations promulgated by the Department of Education make clear that Title IX prohibits employment discrimination in educational programs. 34 C.F.R. § 106.51 et seq. CONTINUE READING ›

Title IX and Sexual Assault on College Campuses: Back to School Edition

Published on: September 7, 2017 | by Naomi Shatz

Whether you are heading off to your first year of college, or are returning for your fourth (or sixth, or ninth) year of higher education, you are likely aware that sexual assault prevention is a big issue on college and university campuses today. We represent complainants and respondents in sexual misconduct proceedings in colleges and universities around the country. As attorneys who specialize in the field of campus sexual assault law we have information that all students should know before heading back to campus.

What is Title IX, and What Does It Mean for my School?

Title IX is the federal law that prohibits discrimination on the basis of sex in education. In addition to ensuring that there are equal athletic and educational opportunities for all students, it also requires schools to address and take steps to prevent sex-based discrimination on campus, including sexual harassment and sexual assault. If a school knows of sex-based discrimination on campus and does not adequately respond to it, a court may find the school has violated Title IX. CONTINUE READING ›

Massachusetts Legislature Passes Pregnant Workers Fairness Act

Published on: June 30, 2017 | by Naomi Shatz

Yesterday the Massachusetts Senate unanimously passed Senate Bill 2093, the Pregnant Workers Fairness Act (PWFA). Last month the House unanimously passed a similar bill, H. 3680. The PWFA is headed to Governor Charlie Baker, who has indicated he will sign it.

What is the Pregnant Workers Fairness Act?

The PWFA will amend Massachusetts’ anti-discrimination law (General Laws chapter 151B) to include pregnancy and related medical conditions (including breastfeeding) as protected categories. The law will also require employers to grant their employees reasonable accommodations related to pregnancy, childbirth, or related conditions if such accommodations do not cause an undue hardship on the employer. The law lists examples of the types of accommodations that might be required: more frequent breaks, time off to recover from childbirth, light duty, modification of equipment or seating, modified work schedules, and a private space for pumping breast milk. While the law allows employers to require medical documentation for some accommodations, employers are required to provide the following accommodations with no medical documentation: “(i) more frequent restroom, food or water breaks; (ii) seating; (iii) limits on lifting over 20 pounds; and (iv) private non-bathroom space for expressing breast milk.” CONTINUE READING ›