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.

What to do when K-12 schools don’t follow Title IX – Adele P. Kimmel

In this excerpt from Sexual Harassment: Not in Our School! Public Justice Senior Attorney Adele P. Kimmel explains schools’ responsibilities to address sexual harassment and assault. Watch the full video at http://bit.ly/2q6dVqt and Part 2 at http://bit.ly/2pvZZs8 Sexual Harassment: Not in Our School! is an empowering video for middle and high school students, K-12 parents, schools, and community organizations. It’s about gender equality in education, students’ protections under Title IX, and much more. As high school students plan for their new gender equality group, we watch them interview nationally recognized education, legal, and LGBTQ experts and learn from counselors, advocates, and students. The video provides practical information on how to address sexual harassment and assault when it impacts a student’s education. Students and experts present powerful yet simple ways to make schools safe and free from sex discrimination. Visit SSAIS.org/video to learn how to bring Sexual Harassment: Not in Our School! to your audience free of charge. Share it widely using the Presentation Guide to start the conversation!


Prevent retaliation when reporting K-12 sexual harassment- VIDEO

To learn more about addressing sexual harassment and assault in K-12 schools, watch Sexual Harassment: Not in Our School! at https://youtu.be/8z9d7gnEuxI, and visit the free resources at http://ssais.org/video. #MeTooK12



Congress Passes Bill to Protect Young Athletes from Sexual Abuse


Last week, the House and Senate passed the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act that makes it mandatory for sports organizations to report the sexual abuse of athletes to law enforcement or social services within 24 hours. The bill is now waiting to be signed into law by the President.

The bill was co-authored by Senators Susan Collins and Dianne Feinstein and was introduced in March 2017, brought on by sexual abuse allegations against personnel involved with USA Gymnastics, USA swimming and USA taekwondo. In a press conference, Senator Collins said, “I believe that by moving this legislation forward, we have taken concrete action to end the thoroughly corrupt system that was exposed by these brave women.”

Aside from mandatory reporting, the bill also expands the statute of limitation so that the period for reporting begins only when a victim realizes they have been abused, ensures easier and safer ways to report abuse, and requires extensive training for people involved in sports that will teach them to follow strict standards for child abuse prevention and detection.

The bill was passed by the House and the Senate a week after former Michigan State and US Gymnastics team doctor, Larry Nassar, was sentenced in Ingham County, Michigan to 40-175 years in prison for sexually abusing girls who sought medical treatment. At Nassar’s sentencing hearing, 156 survivors made statements about their experiences and exposed the system that allows predators to prey on young girls. Nassar is accused of sexually assaulting over 200 women and girls.

On Monday, an Eaton County court sentenced Nassar to another 40 to 125 years in prison on three counts of criminal sexual conduct. That sentence will be served concurrently with the Ingham County sentence after Nassar serves a separate 60 year sentence in federal prison on child pornography convictions.

The survivors who have spoken out about the abuse they suffered under Nassar have sharply criticized Michigan State University, USA Gymnastics and the US Olympic Committee for failing to take any action with regard to accusations against Nassar. Since 1997, women and girls have reported being sexually assaulted by the former-doctor, yet none of the institutions that employed him ever took any notable action to investigate him or protect other athletes from his assaults.

Even Michigan State’s Title IX coordinator dismissed reports from students alleging Nassar had sexually assaulted them. After Nassar was reported to the FBI in July 2015, he was no longer allowed to treat patients at USA Gymnastics, but was permitted to continue sexually assaulting young women and girls for over a year at Michigan State.



Newswire: Susan Collins Press Releases 1/30/18; CNN 2/5/18



#MeTooK12: New campaign raises awareness about rights at school

Launched this month, #MeTooK12 aims to broaden the discussion about sexual harassment and violence to include elementary, middle, and high schools. Enforcement of Title IX at that level needs a major boost, students and advocates say.

” Enforcing Title IX

Among K-12 schools, “Title IX is perhaps the least enforced of the education laws,” says Bill Howe, who oversaw Connecticut’s Title IX compliance until 2015 and is now an education consultant in Hartford, Conn.

Some of the systemic problems he has identified around the country:

  • An attitude that since Title IX doesn’t come with extra federal funding, it’s a low priority to enforce it.
  • A lack of training and a practice of having people who are Title IX coordinators “in name only.”
  • Title IX coordinators who are also attorneys for school boards or hold other roles that create a conflict of interest, because they have incentive to protect the reputation of the district.

He hopes more schools will become proactive, instead of reacting to incidents or monetary motivations. He recalls a mayor asking for his help to improve practices in the school district when housing values were going down “because of the reputation for sexual assault at the high school.”


Red the entire article at https://www.csmonitor.com/EqualEd/2018/0118/MeTooK12-New-campaign-raises-awareness-about-rights-at-school



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