Excerpted From: Benita Miller, Keeping the Faith: Fortifying Title IX Protections Post-Roe for Black Girls, 56 Creighton Law Review 359 (June, 2023) (31 Footnotes) (Full Document Requested)




Pregnant and parenting teens have a right to stay in school to complete their education. Embedded in the federal Title IX Education Amendments is the guarantee that discrimination based on pregnant and parenting status is prohibited if a school is receiving public funds. Title IX regulations expressly state that schools “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. ...

There is a familiar ritual during high school where students are urged to create a list of goals to accomplish along with a selection of colleges. My peers and I were no exception, and we made our lists fully expecting that our lives' journeys would mirror our intended paths. Looking back, I realized that these lists are often created without regard to understanding how little control you have over what the future might bring or the ways in which your reality might be constrained. And for good reasons, this ritual is commonplace across economic, social, and racial lines. Children should be encouraged to dream, and those dreams should be supported by the adults in their lives. I had dreams of becoming a writer because of my love for bending words to make meaning. The advisor of my school newspaper encouraged my dreams, so I eagerly explored journalism programs across the country. The shiny brochures filled with happy, smiling students fueled my imagination of what was possible. Eventually, I narrowed my options and scheduled time with my counselor during my junior year. While I waited outside of Mr. Smith's office, I double-checked my list and imagined the different versions of me that would emerge based on my selections. It was the late 1980s, so I balanced a huge catalog filled with college profiles on my lap, fully prepared to dog-ear the pages after mutual agreement on the schools that would suit. Once it was my turn, I sat across from my counselor and noticed an array of posters tacked to the bulletin board on the wall above his desk. One particular poster stood out and caught my eye with the silhouette of a Black girl carrying a stack of books, and her belly was noticeably protruded with a roundness that signaled pregnancy. In bold print, near her bowed head, was a message: “the one on the left has a better chance of graduating high school than the one on the right.” Something about that poster gave me pause because the messaging rang clear-girls who wanted a future needed to avoid pregnancy. However, I was confused as to why the poster was displayed in my school, let alone in my counselor's office. Afterall, in a student body of more than 1,400 students, with the exception of maybe five girls, there were not a lot of pregnant girls in my school-or, for that matter, in my neighborhood. Still, sitting across from Mr. Smith, a man whose wisdom and direction I had come to rely on, I imagined he must know something that I didn't. Without raising questions, I cracked open the catalog and explored my future.

Later that same year, one of my classmates and friend dating back to elementary school became pregnant. When her stomach rounded and required flowing shirts, she packed up her locker and headed off to a special program. Remembering the message on the poster, I thought she was dropping out, but she assured me that she would return after having her baby. True to her word, she returned the next fall pushing her beautiful daughter in a stroller. While she resumed regular classes, her daughter attended the school's onsite childcare program. Mid-year, she found herself pregnant again, but this time chose not to leave school because she did not want to fall behind. Turns out the special program did not offer credit-bearing courses so none of those classes counted toward graduation. Navigating school was challenging for her because while the administrators did not intentionally push her out, none made it easy for her to stay. Despite her parenting obligations and the fatigue that pregnancy brings on, she still had early morning classes or those that required her to trudge up the steps loaded down with books. I would watch as she wedged her expanding body into the narrow space between the desk and seat reserved for students. This happened even when there was a table and free-standing chair in some of the classrooms. It was almost as if our teachers did not notice or were making a coordinated effort to make an example of her. Among our friend circle, we would help as much as possible by carrying her books, shielding her during the chaos of class changes, or squirreling away fruit to quiet her grumbling stomach throughout the day. Our support and refusal to condemn her became acts of defiance that dared the administrators to challenge us. So by the time graduation arrived, we felt triumphant.

However, we were collectively shocked when the principal asserted that my friend would be barred from walking across the stage. The principal believed her participation in the graduation ceremony would send a “message” of condoning teen pregnancy. I was the student government president and used this power to push for my friend's participation in the ceremony. Sadly, many students and faculty felt that the principal's decision was justified. But we did not give up, and I encouraged my graduating classmates to express outrage as well by reminding them that the gown donned during the ceremony would conceal a visible belly. We prevailed and my friend participated in the ceremony. At the time, I did not know that there were laws already in place that protected her, or myself for that matter, from discrimination. During the years between 1955 and 1960, corresponding to the Baby Boom era, women of all ages began to produce more children. The rise of fertility among teens both led to and resulted from a wave of early marriages that began in the period following World War II. Yet, beginning in the 1960s, American women abruptly changed course. For women of all ages, childbearing declined significantly. But, young women did not curtail their fertility as quickly as older women, nor perhaps did they react as swiftly to new economic realities affecting the family. “Whatever signals were leading older women to defer or curb their fertility were not as apparent to teens, particularly teens of color.” Up until the 1960s marriage and childbearing were tightly linked. Hence, ill-timed pregnancies often resulted in marriage; but such marriages became not so readily available for teens, especially Black teens. As a result, adoption became a popular alternative for White women, while Black women often relied on extended kin networks for support to raise their children. However, more recently across racial groups, teens tend to opt to remain single and far fewer today get married or put their babies up for adoption.

Teen pregnancy emerged at the forefront of national debates and policy legislation about single motherhood, welfare, and the decline of morality and family values in the United States. The phrase “teen pregnancy” is so ingrained into the U.S. political discourse and public sentiment that it may be surprising to note that this commonly used phrase has a relatively short history. Prior to the mid-1970s, the phrase was not used and the attention of the public and of policy makers was focused on unwed mothers of all ages. The phrase “teen pregnancy” came to symbolize moral challenges during a time of seismic social shifts in the country during the 1960s. White teens were considered “unwed” and victims, and notably the founder of Florence Crittenton Home for Unwed Mothers wrote in 1933:

It was startling indeed to have her [the unwed mother] presented as a victim - as an innocent girl of tender years, trapped, abducted, forcibly ravished, perhaps, or drugged, and then held prisoner through four of five years of utter degradation until excesses of disease wore her down into an ignominious grave.

Essentially, the Crittenton Home was founded on the basis of rescuing young unwed women from further depravity by modeling Christian values around hard work and responsibility. In contrast, that same year Wilson wrote, “in the not too distant future it is easily possible that every white girl who need their [F.C homes] help can be received with the aura of their protecting care ... the colored unmarried mother is still a problem to be reckoned with.”

The contrasting narratives persisted particularly in the growing social science research field which consistently concluded that unwed pregnancy among White women signaled a treatable neurosis while Black unwed pregnancy was linked to behavioral and perceived cultural norms. By the 1970s when the Carter Administration signaled a more favorable response to women's access to reproductive healthcare including abortion access, teen birth rates were largely unremarkable. However, more teens, particularly White teens, were sexually active outside of marriage or committed relationships. Consequently, there was an increase in pregnancies that resulted in abortion as well as higher rates of single parenthood-both among White women. These trends prompted social scientists and policymakers to fashion a response to what was now being treated as a problem. Leaning into the historical narratives, White teens were still being framed as victims worthy of redemption while Black teens were viewed as villains engaged in wanton behavior that impacted public resources.

In 1978, when the Office of Adolescent Pregnancy Programs was proposed under the Adolescent Health, Services, and Prevention and Care Act, and recommended funding for programs largely focused on preventative services and treatment. And while the Act, never passed the services, the notion that there was epidemic levels of teen births particularly among Black teens became an accepted belief. Consequently, by the time my friends and I were in high school, it was abundantly clear that Black girls were the face of teen pregnancy, and the public's response was strikingly different from the sympathies afforded to White teen girls.

Patricia Hill Collins opined in her seminal work, Black Feminist Thought, the inordinate attention paid to Black adolescent pregnancy and parenting in scholarly research, and the kinds of public policy initiatives that target Black girls illustrates the significance of the government supporting controlling images. The images of teen pregnancy became increasingly one focused on Black girls and linked to poverty. The poster above Mr. Smith's desk was a caution to girls that they played an outsized role being chaste and morally responsible.

Collins further cautions that “[b]ecause assumptions of sexual hedonism are routinely applied to Black urban girls, they are more likely to be offered coercive birth control measures ....” In one particular instance, the City of Baltimore implemented the use of the contraception Norplant in its schools. The plan faced backlash, and there was a similar response in 2015 when the City's Health Commissioner, Leana Wen, implemented a plan to offer an array of contraceptives in schools. Wen said that student access to birth control helped to cut the City's teenage pregnancy rate by one-third from 2009 to 2014. Wen said that providing access to contraceptives is part of comprehensive reproductive education. City Councilman Carl Stokes compared offering Norplant and Nexplanon to a “social engineering experiment” such as the Tuskegee trials that studied untreated syphilis in rural AfricanAmerican men in Alabama. “‘I'm just as opposed as I was to it then,’ said Stokes, who was on the City Council and opposed Norplant when city officials introduced it in schools in the early 1990s.” “‘They need parental permission to take children to the zoo, but they can surgically implant such a thing into a child's arm. I don't think so. It's social engineering at its worst.”’

While Wen's efforts were laudable and Stokes' concerns echoed and contextualized with the historical medical experimentation in the Black community that has led to mistrust, the plan and response failed to address the already low rates of adolescent pregnancy as well as the need to support young women who do become pregnant. Despite significant declines in teen birth rates, during this post-Dobbs era where there is a mix of mainstream conservatism, progressivism, and cultural narratives, there are reasons to have a heightened concern among Black women, especially those more likely to experience unwanted pregnancies that now have a stronger likelihood to result in birth. Additionally, what has emerged in more recent years is an increased interest in reviving pregnancy prevention campaigns that promote negative images much like the ones from the 1980s. The focus on narratives, as opposed to enforcement of rights, is consistent with how under-valued groups are forced to negotiate in public spaces. This is especially true for Black girls who are often the most subordinated among under-valued populations.

Unfortunately, my friend's experience was not unique and by the time I graduated law school and began working as a children's attorney, many of my pregnant and parenting clients shared similar stories of being ostracized or othered. The result of their experiences, coupled with memories of my friend's struggle, prompted me to start an organization focused on young parents. Now, instead of using my perch as student council president, I had legal expertise that I could leverage to make change. It was then that I discovered that pregnant and parenting students had a right to access school free from pregnancy-based discrimination.

Growing up, I understood the importance and legacy of Brown v. Board of Education so much that it was drilled into me to reference the case when talking about educational disparities. Yet, little attention had been paid to my identity as a girl and the ways in which I had been marginalized. This is not surprising given the ways gender identity, particularly for Black girls, had been compromised by narratives and beliefs around respectability. In the end, all of this resulted in the dual identities of Black girls being persistently disregarded.

In 2007, my organization, the Brooklyn Young Mothers Collective, set out to bring these identities together by amplifying the provisions in Title IX that governed education access for school-aged mothers. Enacted in 1972, Title IX prohibits sex-based discrimination in any school or any other education program that receives federal funding.

Specifically, Title IX disallows the exclusion of pregnant and parenting students from school settings, but it continues to support the establishment of separate settings so long as it is voluntary. These separate settings did not arise out of the same impetus as the single-sex schooling movement. A history of “special treatment” for pregnant students, in the form of separate schools, is “historically linked to invidious discrimination against pregnant girls.” Furthermore, when examined more closely, these settings reflect “deeply embedded stereotypes and assumptions” that are an outgrowth of the racialized narratives that have permeated the discussions around unwed motherhood and pregnancy.

When I began working with young mothers, my primary goal was to educate them about the perils of child welfare involvement by doing workshops at the Program for Pregnant Students in Brooklyn. The more I visited the school, the more the inequities became glaring - classrooms lacked supplies, teachers, and rigorous course offerings. Young women were lulled through the school days writing letters to their unborn children and knitting. This was wildly unacceptable because these young women needed and deserved the best opportunities available to improve their chances of becoming self-sufficient. My workshops began to focus on training a group of teen mothers to advocate for changes in the New York City Chancellor's Regulations and end pregnancy-based discrimination. Here, I saw an opportunity to ensure that teen mothers would no longer face pregnancy-based discrimination (especially Black girls) and would have the chance to wed their racial identity to their gender. This was not easy because the images around the negative outcomes for teen mothers, much like those above Mr. Smith's desk, remained an active part of the public discourse and contributed to the ostracization and othering of pregnant and parenting students.

It was not uncommon for school administrators, advocates, and leading social service providers to use refrains like “kids having kids” despite the nationwide staggering drop in the number of births to teens due to higher rates of contraceptive use. Ironically, during this same time period teen pregnancy prevention programs touted success based on helping girls acquire skills that incentivized them to delay childbearing. However, these programs often failed to target girls most at-risk of experiencing early childbearing.

It was clear that society's discomfort with pregnancy and female sexuality influenced how pregnant and parenting students navigated the New York City public school system and constrained the potential of these settings to appropriately educate students. This lack of appropriate support placed these young women at greater risk of completely disconnecting from school with consequential outcomes. Eventually, in partnership with the New York City Department of Education (“DOE”), the programs were closed in 2008. The DOE updated the NYC Regulation of the Chancellor to codify Title IX with stronger protections for pregnant and parenting students. The regulations expressly state that pregnant and parenting students have the right to fully participate in educational programs and activities including any class or extracurricular activity for which they are otherwise eligible without requiring a specific certificate of medical clearance simply because they are pregnant or parenting. The ability to keep their pregnancy and parenting status private is paramount to young women being able to fully access, not only school, but healthcare.

[. . .]

As Women's and Gender Studies expert, Lee Smith Battle, explains teen mothers are stigmatized for violating age norms for parenting and for being members of devalued racial or socioeconomic groups. Stereotypes of young mothers perpetuate stigma by teen pregnancy prevention campaigns, television shows, sex education programs, professionals, and the general public.

This persistent “worry about teen pregnancy is based on a value judgment that, for moral, social, or economic reasons, only married couples should have children. Those who hold this view believe that unmarried teens should be prevented from having babies because their singleness (rather than their immaturity) disqualifies them from motherhood.” As noted, while the U.S. teen birth rates have declined since the late 1960s, they are highest in the world. According to the Guttmacher Institute, the lower rates are largely attributable to increased and consistent access to contraceptives. School-based health centers can play a key role in addressing unplanned teen pregnancy. Failing to provide contraceptive services on-site is problematic, especially where all women live in “contraceptive deserts” limiting their access to such health care. In fact, according to Pew Research, the teen birth rate in the United States is at a record low, dropping below eighteen births per thousand girls and women ages fifteen to nineteen for the first time since the government began regularly collecting the data. In 2018, the birth rate among fifteen to nineteen year old girls and women was less than half of what it had been in 2008. Given their status as minors, adolescents are uniquely affected by new abortion restrictions. While adolescents are less likely to become pregnant, when they do, they are more likely to characterize their pregnancy as unintended. Moreover, adolescents tend to show up later in their pregnancy for care. Young people may have difficulty traveling, and thus obtaining access to care in other states becomes more challenging. In addition, laws requiring parental involvement put reproductive care out of the reach for many.

When the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”) ushered in welfare reform requiring teen parents to live with a parent, guardian, or in an adult-supervised setting. They were also required to participate in educational or training activities in order to receive assistance. These regulations while seemingly supportive and meant to curb future pregnancies as well as supposed instances of child maltreatment were often burdensome. Teens and their babies did not achieve better outcomes and the presumed supports that would flow from adult supervision were often elusive. Instead in the decades since the passage of welfare reform, a story of greater inequality is emerging given the restrictions around abortion care and “contraceptive deserts.” Additionally, the trends in young women being “pushed out” of school due to a patchwork of support systems in school settings and communities coupled with the stigmatization around early childbearing, it will be paramount to raise awareness around Title IX and empower advocates and more importantly young parents to push for access and inclusion. This will be especially true during the post-Dobbs era when the already fragile collection of rights are equally at risk.

Benita Miller currently serves as the Executive Director of Powerful Families, Powerful Communities in New Jersey.