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Abstract

Until three years ago, a policy at Delhi Charter School in Louisiana required that any pregnant student be effectively expelled. A pregnant sixteen-year-old student’s expulsion caught the attention of national media in 2012. The ACLU sued and the school quickly rescinded the policy. Although the policy was revoked, the un-adjudicated nature of the resolution leaves teen girls at the school and nationwide without any final court order to protect them against the (re)enactment of similar discriminatory policies. This Article analyzes the Delhi Charter School policy in order to make three related arguments. First, the Court should adopt a rebuttable presumption of state action when the plaintiff is a charter school student alleging the deprivation of a fundamental right. Second, any pregnancy expulsion policy enforced by a charter school violates both the Equal Protection doctrine and Title IX. The Equal Protection claim rests on the remedy left available under Geduldig v. Aiello, which otherwise crippled women’s access to remedies against pregnancy discrimination: if a facially neutral policy evidences discrimination, that policy is unconstitutional under the Equal Protection Clause. Due to the complete lack of rational justification for these policies, this Article argues that all pregnancy expulsion policies de facto evidence invidious discrimination. Third, while Title IX provides another source of remedies, it will not provide meaningful remedies without reform to its implementation. This Article concludes with suggested Title IX reforms.

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