By Schwartz Hannum PC

Does your school’s application for admission ask potential students to provide a photograph? Are applicants required to indicate whether they are male or female? Do you promise not to discriminate against student applicants based on their genetic information? While all of these practices may be well-intended, some of them may miss the mark when it comes to avoiding discrimination and promoting diversity on campus.

Take the request for a photograph. The Internal Revenue Service (the “IRS”) notes that requiring a photograph may indicate that the admissions process is racially or ethnically discriminatory, even if that is not the school’s intent. Indeed, the IRS specifically requires private schools to include policies in their Bylaws and admissions materials, stating that the school does not discriminate based on race, color, or national or ethnic origin, as a condition of obtaining and maintaining § 501(c)(3) tax exempt status. Schools may, therefore, consider asking student candidates about their ethnicity as an optional question on an application, but should not insist on obtaining this information as a condition of admission.

Where does your state law stand on gender identity and expression? Some states prohibit this form of discrimination in public schools and many independent schools are choosing to take a fresh look at dress codes, restrooms and locker rooms with this characteristic in mind. Be sure that your school’s non-discrimination statement and application for admission are consistent with your school’s philosophy on this evolving topic. Do you need to know the gender of the applicant? You might consider increasing the number of check boxes on an application to permit a wider range of answers to the gender identity question, or include no check boxes, but ask a student applicant to self-identify in a way that best fits the applicant. Of course, in single-sex schools, this topic is significantly more complex.

Schools sometimes try to be inclusive with respect to genetic information. Under federal law, employers are generally prohibited from discriminating against employees based on genetic information; however, discrimination based on genetic information is not prohibited by independent schools toward student applicants and current students.  Though your school may not intend to evaluate students on this basis, schools are not legally required to include this characteristic as a protected class with respect to student applicants.

With schools focused on diversity and inclusion for the whole school community—based on financial need, disability, citizenship, the protected classes mentioned earlier and other characteristics—it is important to ensure that your non-discrimination statements and practices are consistent across the organization, are in sync with your school’s mission and are lawful. We recommend that independent schools review their non-discrimination policies wherever they appear—as illustrated in the list below—to ensure that they are drafted appropriately for both students and employees:

• Student/Parent Handbook(s);
• Employee/Faculty/Staff Handbook(s);
• Acceptable Use Agreements (Employees/Students);
• Bylaws;
• Employment Applications;
• Enrollment Contract; and
• Website

If you have any questions about legal compliance with respect to non-discrimination policies and diversity initiatives, please do not hesitate to contact a member of the Firm’s Education Practice Group.

By Sara Goldsmith Schwartz

Recently, a first-grader in Colorado who was born a boy but identifies as a girl was awarded the right to use a girls’ restroom at school.  In its decision, the Colorado Division of Civil Rights noted that the school’s prohibition on the first-grader’s use of the girls’ restroom had created an environment that was “objectively and subjectively hostile, intimidating or offensive.”  Similar cases have surfaced across the country.  For example, the Maine Supreme Judicial Court recently heard a similar case: the question was whether a boy who identifies as a girl is entitled to use a girls’ restroom at school, under Maine’s human rights law.

As these cases illustrate, gender identity issues at schools can create both practical and legal challenges.  Some of the questions that consistently arise in these cases are: which bathroom can the student use? Which pronoun should be used when referring to the student who is of one gender, but identifies with another?  School policies and practices that do not properly address gender identity issues can expose schools to potential legal liability.  At least thirteen states (i.e., California, Colorado, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, North Carolina, Oregon, Vermont, and Washington) and the District of Columbia have passed laws that specifically prohibit bullying, harassment, intimidation or discrimination on the basis of gender identity in schools.

We recommend that schools carefully evaluate applicable laws in the school’s jurisdiction.  We also recommend that schools update their policies related to anti-discrimination, anti-bullying and anti-harassment to account for potential gender identity issues.

Please do not hesitate to contact us if you have any questions regarding gender identity issues or the applicable state law that governs your policies and practices related to gender identity.