Title IX and Private K-12 Schools

Source: http://stopsexualassaultinschools.org/guest/title-ix-and-private-k-12-schools/

Stop Sexual Assault in Schools

Educating students, families, and schools about the right to an equal education free from sexual harassment

Title IX and Private K-12 Schools

by Christine Garner, with input from Bill Howe and SSAIS.

This FAQ is about Title IX and private K-12 schools. It is not intended as definitive legal advice. We recommend that you contact an attorney to review your specific situation. The Department of Education’s Office for Civil Rights (OCR) continues to change its guidance. This information is based upon guidance provided prior to March 10, 2018.

Is a private K-12 school required to comply with Title IX?

Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”  If a private school receives any federal financial assistance then it must comply with Title IX, unless the school has a legitimate religious exemption (see below).

The courts have ruled that even if one department of a school receives federal financial assistance, the entire school must abide by Title IX.  If a private school is part of an entity with more than one school, then all schools within the entity must adhere to Title IX, even if only one of the entity’s schools receives federal financial assistance.

Does a private religious school have to comply with Title IX?

If a private religious school accepts federal financial assistance, then it is required to comply with Title IX. A religious school can claim an exemption from Title IX requirements that it believes would be inconsistent with its religious tenets. Religious schools may apply to the Department of Education for exemptions to Title IX requirements, but a school is not required to file a written claim for an exemption to be valid.  The school can raise the religious exemption in response to a Title IX complaint.

The most common religious exemptions apply to sports, pregnant students, or LGTBQ rights. It is difficult to envision a valid religious tenet that would exempt a school from having to address sexual harassment or sexual assault.  If a religious school claims an exemption, you could still file a complaint, and OCR will decide if the exemption is valid.

What qualifies as federal financial assistance?

The Department of Justice (DoJ) defines federal financial assistance as “the award or grant of money.” The DoJ definition continues:

However, federal financial assistance may also be in nonmonetary form… [F]ederal financial assistance may include the use or rent of federal land or property at below market value, federal training, a loan of federal personnel, subsidies, and other arrangements with the intention of providing assistance. Federal financial assistance does not encompass contracts of guarantee or insurance by the federal government. It is also important to remember that not only must an entity receive federal financial assistance to be subject to Title IX, but the entity also must receive federal assistance at the time of the alleged discriminatory act(s) except for assistance provided in the form of real or personal property. In this situation, the recipient is subject to Title IX for as long as it uses the property.

Private K-12 schools usually receive financial assistance from the Department of Education, the Department of Agriculture, or the Department of Health and Human Services.  Private schools might also receive financial assistance from other federal agencies.

If a student or teacher at a private school receives Title I or special education services from a public school, does that mean the private school is a recipient of federal financial assistance?

Title I of the Elementary and Secondary Education Act (ESEA) and the Individuals with Disabilities Education Act (IDEA) require public school districts to provide eligible students with special education resources and also to provide “equitable services” to eligible children in private schools. If a private school student or teacher receives “equitable services” from a public school, that does not mean that the private school is a recipient of federal financial assistance.  Department of Education policy does not consider services provided to private school students or teachers under ESEA Title I or IDEA as federal funds given to the school.

How do you know whether your private school receives federal financial assistance?

First, ask the private school administration if they receive federal financial assistance. The school should know because they are required to sign an Assurance of Compliance prior to receiving the funds. The assurance of compliance states only that the school “assures” the federal agency that the school complies with Title IX and the other federal civil rights laws. The signed assurance of compliance does not mean the federal agency has audited to see if the school is truly in compliance.

If the school refuses to answer or you do not trust their answer, you can search USAspending.gov (see instructions below) or the Federal Audit Clearinghouse. These databases show the federal financial award amount and the agency that provided the money. Even if the school does not appear in one of these databases, it still might receive federal financial assistance.

If you cannot verify whether your private school receives federal financial assistance, you can still file a Title IX complaint with OCR, and they will determine if the school receives funds from the Department of Education. It’s best to consult with an attorney first to determine the best course of action because you can lose valuable time waiting for a determination from OCR.

If my private school does receive federal financial assistance, how do I a file complaint under Title IX?

If you are not able to resolve your complaint with the private school, you can file a lawsuit or file a complaint through the civil rights department of the federal agency that provided the school with financial assistance. The three most common sources of federal financial assistance to private K-12 schools are the Department of Education, the Department of Agriculture, and Department of Health and Human Services.

Here are the links to file complaints:

OCR sets the standard for review of a Title IX complaint, even if another federal agency is processing that complaint. If a private school receives funds from more than one federal agency, you only need file a complaint with one agency. It’s preferable to file a complaint through the Department of Education if your school receives funds from the Department of Education.

When must I file my Title IX complaint?

You must file a Title IX complaint within 180 days of the latest occurrence of the discrimination.  If you filed a complaint through your school’s grievance process and you feel your Title IX rights were violated, you can file a complaint with OCR within 60 days after the last act in the school’s grievance process. OCR sometimes grants a waiver of the 180-day filing period, but it’s best to submit your complaint within that time frame. Because discrimination can be ongoing, discuss your filing deadline with an attorney as soon as you discover the discrimination.

What if my private school isn’t required to comply with Title IX?

You do not need to rely only on Title IX to prove sexual harassment and sexual assault are wrong. Even if your private school is not required to comply with Title IX, you can still demand that it address these issues and live up to Title IX standards. If a student is a victim of sexual assault at a private school, the action is still wrong and the school should respond to protect and help the victim. Depending on the facts, a private school might be liable for breach of contract, negligent supervision, or some other legal theory that would be best discussed with an attorney.

As noted in the Assurance of Compliance, schools must also comply with other civil rights laws and an incident could violate more than one law. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin. Discrimination based upon disability is prohibited by Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990. Age discrimination is prohibited by the Age Discrimination Act of 1975.

Most states have their own anti-bullying laws. These statutes define bullying in different ways. Check with an attorney about whether a private school must comply with anti-bullying laws in your state.

In conclusion, if a student has been a victim of sexual harassment, do not give up. You have the right to demand protection and help from your private school.

Legal disclaimer

Instructions on how to conduct a search on the USA Spending website:

  1. Browse to USAspending.gov advanced search webpage.
  2. On the left side, in the Filters box, under Time Period, select All Fiscal Years.
  3. In the Filters box, click Award Type, and select all of the categories (ContractsGrantsDirectPaymentsLoans, and Other).
  4. In the Filters box, click Recipient, and in the Recipient Name search box, enter the name of the school or portion of the name, and then click the search icon (magnifying glass).
  5. Scroll to the top or to the bottom of the Filters box, and then click Submit Search.

Title IX Applies to Private Schools

Source: https://www.aauw.org/2010/10/12/private-schools/

Title IX Applies to Private Schools

October 12, 2010

Caitlin Russo, a student at Greensburg Central Catholic High School in Pennsylvania, was being harassed by a teacher. She complained to the school’s administrators, but they ignored her and suggested she was out to ruin the teacher’s reputation. She also complained to the Diocese of Greensburg, which runs the high school, but they also ignored her. So Russo sued the school and the diocese for violating her rights under Title IX, the law that prohibits sex discrimination in educational institutions that receive federal funding.

Though the law has been famously exercised to enforce equal access to sports participation, Title IX doesn’t only apply to student athletics. The law prohibits gender discrimination in all educational activities, covering everything from sexual harassment to opportunities in math and science.

In court, the school’s lawyers disputed Russo’s claims to Title IX protection, arguing that the private, parochial high school and other schools run by the diocese were not bound by Title IX because they did not receive any federal funding.

However, the U.S. District Court disagreed. In a September 15 decision, the court ruled that the private high school must comply with Title IX because another school within the diocese took federal subsidies for a school lunch program. The decision set a precedent that if a private school accepts federal money, Title IX applies to that school and all other schools within the same organization.

This is a victory for women’s educational rights that will lay the groundwork for future enforcement in private schools. This decision should remind all schools that receive any federal funding that their students are protected under Title IX. If students attending those schools believe their rights have been violated, they have protection under the law.

Learn more about campus sexual harassment and what to do if you are facing sexual harassment through AAUW’s Legal Advocacy Fund and Legal Referral Network.


School Lunch Subsidies Render Catholic Schools Subject to Title IX


Tuesday, September 28, 2010

School Lunch Subsidies Render Catholic Schools Subject to Title IX

Congress, whose powers are limited to those enumerated in the Constitution, passed Title IX under its power to spend for the general welfare. Consequently, the statute’s ban on sex discrimination only applies to those schools that receive federal funding. Sometimes this restriction is mischaracterized one that limits the laws school to public schools. But a recent federal court decision reminds us that private, parochial schools can be federal funding recipients. In that case, schools operated by the Diocese of Greensburg (Pennsylvania) were deemed subject to Title IX by virtue of accepting federal subsidies under the National School Lunch Program. (Though the court did not need to address the question, it also considered the schools federally-funded by virtue of their participation in the E-rate program, which entitles the school to discounts on qualified purchases of classroom technology.)

As the decision in this case points out, courts have uniformly recognized that schools receiving school lunch program subsidies are subject to Title IX. But what made this recent case trickier was that the Diocese of Greensburg operates several schools, only one of which participated in the school lunch program. The plaintiff alleged that the Diocese was liable for Title IX violations that occurred at one of other schools — one did not participate in the school lunch program. But the court reasoned that Title IX would still apply. Since the Diocese did not organize or operate its schools as separate legal entities, the Diocese itself is the educational institution subject to Title IX by virtue of receiving federal funds for one of its programs. It is the same theory that renders one university department (such as athletics) subject to Title IX based on the federal funding received by another program or department.

This seems like a reasonable interpretation of the Civil Rights Restoration Act, which amended Title IX to impose institution-wide liability. What remains to be seen is whether this interpretation will extend Title IX’s application to parochial schools beyond this particular case. That will turn on whether dioceses with several schools typically organize them separately, and if not, whether they could easily reorganize them as separate entities in order to limit liability.

Decision: Russo v. Diocese of Greensburg, 2010 WL 3656579 (W.D. Pa. Sept. 15, 2010)


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