ACLU Letter to VMI

Board of Visitors
Virginia Military Institute
201 Smith Hall
Lexington, Virginia 24450

Dear Members of the Board of Visitors:

It has come to our attention that the Virginia Military Institute board of visitors has passed a resolution requiring students who are pregnant or who cause a pregnancy to leave VMI or face expulsion.

Such a policy would appear to be in violation of federal regulations implementing Title IX of the Education Amendments of 1972, 20 U.S.C. 1681, et seq, which provide in part:

A recipient [of federal funds] shall not...exclude any student from its education program or activity...on the basis of such student's pregnancy . . . unless the student requests voluntarily to participate in a separate program or activity of the recipient.

A recipient shall treat pregnancy . . . in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service which such recipient administers, operates, offers or participates in with respect to students admitted to the recipient's program or activity.

In the case of a recipient which does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy . . . 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. (Although Title IX does not apply to any institution whose primary purpose is the training of individuals for the military services, VMI does not appear to fall under that exception. See United States v. Commonwealth of Virginia, 766 F.Supp. 1407, 1427 (W.D. Va. 1991), in which VMI stipulated that "[t]he role of VMI is not primarily to develop career military men for the U.S. armed services.")

The policy would also appear to violate the federal Constitution's guarantees of equal protection and right to privacy.

Should VMI adopt the proposed policy on pregnancy, likely consequences are litigation and/or the withdrawal of federal funds to VMI pursuant to Title IX. We urge you to consider these potential consequences as you make your policy decision.

Sincerely,

Kent Willis
Executive Director
ACLU of Virginia

Leonora Lapidus
Director, Women's Rights Project
ACLU National Office