Should Private Schools Worry About Title IX?

What exactly is Title IX? Put simply, it's a law that prohibits sex discrimination under any education program or activity receiving federal financial assistance. This includes all public and private schools that are federally funded. Title IX applies to all aspects of education from equal opportunity in athletics to sexual harassment.

Should we exclude private schools from Title IX benefits and requirements if they don’t receive federal aid? The ongoing debate asks this question. Three recent court decisions have called this exemption into question by considering the indirect financial benefits many private schools receive through tax-exempt status or other federal programs like the Payroll Protection Program. While there’s no immediate cause for panic, these rulings may be paving precedent for private schools to be compliant with Title IX. 

These cases trend in the direction of extending Title IX to private educational institutions, most likely based on the financial benefit conferred by their tax exemption status.[1] If this trend continues, at some point, private schools may be required to become complaint with Title IX and could be liable for failure to comply.

Title IX of the Education Amendments of 1972

 Title IX of the Education Amendments of 1972 is a federal civil rights law that prohibits sex discrimination in education. Title IX is one of the most important pieces of legislation for ensuring equality in education, and its impact has been felt by millions of students across the United States.

The law prohibits sex discrimination, it says everyone in the US should have equal access to education, regardless of their sex. No one should be excluded from participation or treated unfairly. This includes ensuring that no one is subjected to discrimination in any education program or activity and denied the benefits of participation. 

Title IX also prohibits sexual harassment and assault in education. This includes any unwelcome conduct of a sexual nature by a student or a staff member that creates a hostile or offensive environment. Sexual harassment can involve things including sexual advances, lewd comments or jokes, and obscene gestures. Sexual assault is a more severe form of sexual harassment, and it refers to any non-consensual sexual contact. This can include anything from unwanted touching to rape.

What is the Definition of Federal Financial Assistance?

 The cases causing concern among private schools turn on the legal question of what constitutes “federal assistance,” but they all involve blatant discriminatory conduct that could easily have been avoided. In one, female students were subjected to continued sexual harassment by male students in and out of the classroom, and not only did the administration do nothing to stop the behavior, it told one student that she should learn to deal with it because “the real world doesn’t accommodate mental illness.”

Another involved a female football player on the team of a private school. During an away game, the host school discovered the female player. As a result, they chose not to compete against that school or any other school with a female athlete. Their stated concern was primarily for the well-being of women.

The underlying facts in the third case were not discussed in the court’s opinion. However, the District Court in Baltimore certified the case for immediate appeal which makes it the most significant of the three cases. If the ruling is affirmed by the Fourth Circuit, private schools should consider their compliance options, even if they are not located within the geographic area covered by the decision (Maryland, Virginia, West Virginia, North Carolina, and South Carolina). Schools that are located within those states will immediately become subject to Title IX.

Title IX Compliance

While courts are still deciding Title IX’s applicability to private schools, private schools should take time to learn about Title IX and take steps to ensure they follow its rules and regulations. 

Under current regulations, compliance requires much more than a common-sense approach to issues surrounding sex discrimination in the classroom and on the athletic field. It requires formal training for teachers and administrators, prompt and thorough investigations of complaints, record keeping, and remediation to support all students so that all students have equal access to a safe learning environment. Here are seven key areas to ensure Title IX compliance: 

• Update your policies: Schools need a clear Title IX policy to protect students, staff, and faculty from sexual discrimination and harassment. The policy should be easily accessible on the district website and widely distributed. 

• Ensure grievance processes are without bias: The grievance process should be fair, equitable, and without bias or conflict of interest. Before making a decision, it is necessary to share all investigation findings with both parties involved. Additionally, both parties should be granted the right to appeal.

• Identify and widely publish your Title IX Coordinator: The role of the Title IX coordinator is crucial in ensuring that sexual discrimination and harassment are addressed appropriately. The coordinator should be clearly identified on the district website and their contact information should be widely distributed. All parents or guardians of students, students, and employees should be notified of the coordinator’s role. Additionally, the coordinator must rearrange staff or hire new employees to effectively carry out their duties.

• Investigate all concerns and complaints: If a formal complaint is filed that meets Title IX sexual harassment criteria, you must investigate. You must complete investigations within a "reasonable amount of time." Have a decision maker who is separate from an investigator. 

• Keep Proper Records: Ensure effective documentation procedures are in place for how the district receives and maintains information including documenting an incident, notifying the parties and parents or guardians, conducting an investigation, and informing the appropriate and necessary people about the final outcome. Maintain all records for a period of at least seven years. 

• Train your Title IX coordinator, investigators, decision-makers, and appeals officers: All involved in the grievance process must be specifically trained. Training is required for "Title IX Coordinators, Investigators, Decision-makers, and anyone who facilitates an informal resolution process." Training must cover the new definitions of sexual harassment and sexual misconduct as well as the highly expanded investigation requirements. Each of these staff members is required to participate in a minimum of 8 hours of training, with follow-up training each subsequent year (see page 1960). Conflicts of interest must be accounted for and alternates will be needed.

• Train ALL school employees: K-12 schools must respond when ANY employee has notice of sexual harassment. School districts need to ensure that ALL staff understands what the Department defines as actual knowledge of a Title IX incident that triggers K-12 personnel’s duty to report to the district Title IX Coordinator. Districts need to ensure that ALL employees are trained on Title IX, how to recognize potential concerns, and how to report it internally to the Title IX Coordinator. School districts are required to train a minimum of 50 percent of their staff each year to account for turnover in staff or training of additional staff (see page 1959). 

McGrath Training Solutions offers training in each of these areas, including awareness training for teachers and administrators, investigation and documentation of complaints, student awareness training, and other areas of compliance. We can assist you in getting ready for any expansion of Title IX to private schools and provide training to your school leaders and staff on all upcoming changes. Give us a call for additional information.

 [1] Section 501(c)(3) of the federal tax code.