Should Private Schools Worry About Title IX?

So, what exactly is Title IX? Put simply, it is a law that prohibits discrimination under any education program or activity receiving federal financial assistance on the basis of sex. This includes all public and private schools that accept federal financial assistance. Title IX applies to all aspects of education from equability in athletics to sexual harassment. As the debate surrounding Title IX continues, many are wondering if private schools should be worried about the impact this legislation may have on their operations. Here's a look at a few of the ways in which private schools could be affected by Title IX changes. Schools that do not receive direct federal aid are currently exempt from Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex, both in the classroom and in school-sponsored programs. But three recent court decisions have called this exemption into question by considering the indirect financial benefits that many private schools receive through their tax-exempt status or as beneficiaries of other federal programs such as the Payroll Protection Program. And while there is no immediate need for private schools to panic, because the rulings are not yet final, there is cause for concern among private schools. 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 will be held accountable under Title IX.

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 is based on the simple principle that every person in the United States should have equal access to education, and no one should be excluded from benefits of or be subjected to regardless of their sex. 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 include things like unwanted 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. At an away game, when the host school learned of the female player, it refused to play that school or any school that had a female athlete on the team based on a concern for the “care 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

Private schools should become familiar with Title IX and consider what they can do now to prepare and ensure that they are compliant with Title IX. 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 and their sex is excluded from decisions.

• Update your policies: It is important that school districts have a clear and concise Title IX policy in place 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: Furthermore, the grievance process should be fair, equitable, and without bias or conflict of interest. For example, all information gathered during an investigation must be shared with both parties before a decision is issued, and an appeal should be allowed for both parties.

• 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. Furthermore, the coordinator should shift existing personnel or make new hires to effectively implement and support their role and responsibilities.

• Investigate all concerns and complaints: If a formal complaint is filed that meets Title IX sexual harassment criteria, you must investigate. Investigations should be completed 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 by August 14th, 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 effective communication for teachers and administrators, investigation and documentation of complaints, student awareness training, and all forms of Title IX compliance. We can help you prepare so you are ready now for any extension of Title IX to private schools and will train your school leadership and staff on any and all changes as they occur.

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