Massachusetts Needs a Working Educational Discrimination Law

Massachusetts is often lauded as one of the most progressive states in the country, and our state civil rights laws routinely provide broader protections than their federal counterparts. So it may come as a surprise that Massachusetts does not have a functional state counterpart to federal laws prohibiting discrimination in education like Title IX and Title VI.

Massachusetts has a law titled “Fair Educational Practices,” Mass. G. L. c. 151C.  That chapter contains provisions prohibiting educational institutions from doing the following:

1. Discriminating against a U.S. citizen on the basis of race, religion, creed, color or national origin in the admission process;
2. Retaliating against employees, students, or applicants for assisting in any proceeding under the law;
3. Asking for the race, religion, color, or national origin of an applicant;
4. Discriminating against someone seeking admission to a vocational school or post-bachelor’s degree program, or discriminating against such a student in the provision of benefits, privileges, or services based on the student’s  race, religion, creed, color, age, sex or national origin;
5. Excluding students from admission because they are blind, deaf, or require a guide dog;
6. Requesting information about, or to discriminate on the basis of a failure to provide information about, certain criminal records;
7. Sexually harassing students.

On its face, the law does not protect most students against discrimination. It protects only U.S. citizens against race/religion/creed/color/national origin discrimination in the application process, but not once they are admitted to the school (unless it is a vocational school or graduate degree program). The law does not prohibit sex discrimination, disability discrimination, or sexual orientation discrimination in admissions generally. The law only protects students from sex discrimination in admission to vocational schools or post-bachelor’s degree programs, and only protects those students in vocational schools or graduate degree programs from discrimination once they are enrolled in the program. However, the Legislature failed to create a method for enforcing the law except in narrow circumstances. The enforcement provision of the Fair Education Practices law,  Mass. Gen. L. c. 151C § 3(a), grants jurisdiction to the Massachusetts Commission Against Discrimination (MCAD) only for claims by people “seeking admission as a student to any educational institution, or enrolled as a student in a vocational training institution,” eliminating the stated protection for students enrolled in graduate degree programs.

In 1986 the legislature passed a law amending chapters 151B and 151C to explicitly prohibit sexual harassment, and added a provision granting jurisdiction to the Superior Court to hear claims of sexual harassment that could not be brought under another statute. Mass. Gen. L. c. 214, § 1C states: “A person shall have the right to be free from sexual harassment, as defined in chapter one hundred and fifty-one B and one hundred and fifty-one C. The superior court shall have the jurisdiction to enforce this right and to award the damages and other relief provided in the third paragraph of section 9 of chapter 151B.” In Morrison v. Northern Essex Comm. Coll., 56 Mass. App. Ct. 784 (Mass. App. Ct. 2002), the Appeals Court made clear that all students alleging sexual harassment are entitled to bring a suit to enforce their rights under chapter 151C and chapter 214, § 1C.

Both the MCAD and the Massachusetts courts have been clear that, outside of claims of sexual harassment, there is no mechanism by which most students can enforce their rights under 151C to be free from discrimination. In interpreting 214, § 1C, the Supreme Judicial Court has affirmed that the anti-discrimination provisions in 151C are not enforceable by students at most schools. In Lowery v. Klemm, 446 Mass. 572, 578 (2006) the Court noted: “General Laws c. 214, § 1C, thus extends to employees and students protection that is not otherwise available under G.L. c. 151B and c. 151C; it does not duplicate the relief provided by those statutes.” Other courts in the Commonwealth have reiterated that 151C only provides a private right of action for the students enumerated in §3(a) (those seeking admission to educational institutions and those enrolled in vocational institutions).

Other Massachusetts civil rights laws do not provide an avenue for relief for students. For example, the Massachusetts Public Accommodation law has been held not to apply to schools, and the Massachusetts Civil Rights Act only applies where a violation of a right occurs because of “threats, intimidation, or coercion” – a mere violation of a person’s civil right is insufficient to state a claim under that law. In 2010 Massachusetts passed an anti-bullying law, M.G.L. c. 71, § 37O, but that law does not create a private right of action for students to enforce it, and it is limited to prohibiting hostile environments caused by peer bullying. Students at Massachusetts elementary schools, high schools, colleges, and graduate programs thus have a limited ability to challenge discrimination they experience under state law.

Federal laws do provide some protection in this area. Title VI of the Civil Rights Act of 1964 states that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Title IX similarly prohibits discrimination on the basis of sex by any educational institution that receives federal funding. Public schools and most colleges and universities must therefore comply with Titles VI and IX, though private K-12 schools that do not receive federal funding are not bound by those laws. The Americans with Disabilities Act and Rehabilitation Act protect students from discrimination on the basis of disability.

The current state of the law leaves various groups unprotected. First, because Titles VI and IX apply only to institutions that receive federal funding, private K-12 schools (and those few colleges) that receive no federal funding are not bound to comply with those laws. Second, neither Title IX nor 151C explicitly provide protection against discrimination based on sexual orientation, unlike Massachusetts’ employment discrimination law, chapter 151B.  While Title IX has been interpreted to prohibit discrimination on the basis of gender identity and non-conformance with gender norms, it does not squarely address sexual orientation, leaving students discriminated against because of their orientation less protected than their peers.  To truly protect Massachusetts students from discrimination, these laws need to have a more expansive state counterpart that ensures that discrimination against all students is prohibited and can be remedied by the courts. The Massachusetts Legislature should finish closing the loopholes that it began to address with the passage of 214, § 1C, and ensure that 151C prohibits all sex, disability, and sexual orientation discrimination, and that all students have a right to enforce the statute in court.