We are excited to announce distinguished Title IX attorney Felice Duffy has joined the national Title IX powerhouse law firm of Nesenoff & Miltenberg LLP.

CALL US 24/7 AT 212-736-4500

Title IX & Student Conduct Code Blog

Nesenoff & Miltenberg, LLP

Does Title IX Apply to All Schools?

Title IX refers to Title IX of the Education Amendments of 1972, which is now incorporated in the federal code and clarified and expanded by extensive federal regulations and policies put out by the U.S. Department of Education. So do the provisions and requirements of Title IX apply to all schools in the United States? Does this include private schools? How about trade schools?

With the new rules recently released, it becomes more important than ever to understand whether a school is required to follow Title IX rules and whether you have a right to seek a remedy under Title IX if a school has failed to live up to Title IX obligations regarding discrimination and harassment on the basis of sex.

Federal Funding is the Key

Although a federal law could conceivably apply to every educational institution in the country, Title IX specifically states that it applies to “any education program or activity receiving Federal financial assistance.” (The statute includes some exceptions, which we will examine shortly.) Limiting application to schools that receive federal funding might make it seem like the Title IX requirements don’t apply to private schools.

But there are many ways that financial assistance can be provided to a school. For starters, most colleges and universities accept student loans funded by the federal government. This makes them recipients of federal financial assistance and therefore subject to Title IX, even if they are privately operated.

Many private schools have tax-exempt status, so they do not pay federal income tax. Does that mean that they are receiving financial assistance from the federal government? At least one court has answered in the affirmative. But in a recent decision, Buettner-Hartsoe v. Baltimore Lutheran High School Association, the Fourth Circuit Court of Appeals held that the withholding of a tax burden is not the same as an affirmative grant of funds and that, therefore, granting a tax exemption does not constitute federal financial assistance. Unless and until the U.S. Supreme Court rules otherwise, private schools in Fourth Circuit states will not be subject to Title IX unless they receive federal funds in other ways. The Fourth Circuit covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Courts in other federal circuits may disagree, but in many cases, judges are persuaded by the reasoning of their colleagues in other jurisdictions.

It is worth noting that the school involved in this particular case was a high school. Because of federal financial aid, very few colleges in the country are not subject to Title IX. A limited number of colleges have deliberately chosen to opt out and refuse all federal grants and aid. Generally, these institutions act based on religious grounds.

Exemption for Military Training Institutions

According to the federal statute, the requirements of Title IX do not apply to “an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine.” The reasoning behind this is that although these institutions educate students, their primary purpose is viewed as the training of individuals for military service.

It is important to be aware that Title IX does apply to ROTC programs operating on the campuses of other educational institutions. In addition, Title IX applies to military colleges such as The Citadel and Virginia Military Institute that are not official service academies such as the Merchant Marine Academy.

Exemptions for Admissions Policies

The statute also contains exemptions for some schools only with respect to the school’s admission policies. For instance, the prohibition on sex-based discrimination does not apply to private undergraduate colleges and universities when they are making admissions decisions. This allows schools to admit all students of a single sex. However, all programs and activities of the institution are required to comply with Title IX requirements if the school receives any sources of federal funding.  Public elementary and secondary schools are also permitted to offer nonvocational single-sex schools as long as they provide substantially equal schools to both sexes.

Private Schools Controlled by Religious Organizations

If the application of Title IX provisions would “not be consistent with the religious tenets of a religious organization,” then private schools under the control of that organization are not obligated to follow the Title IX provisions. Students and employees at religious educational institutions may not be afforded Title IX protections. As the scope of Title IX has been expanded to include sexual orientation and gender identity, which many religious organizations find objectionable, this exemption could become much more prevalent.

While the U.S. Department of Education keeps a list of colleges and universities that claim exemption from Title IX provisions, a school does not have to be on the list to claim exemption.

Trade Schools

Title IX applies to educational programs and activities. Does this include programs that train individuals for employment, such as training in computer repair, welding, or HVAC services? Are these considered educational programs?

If a school is accredited so that a student can use a federal grant or loan to pay for tuition, then that school should be subject to Title IX provisions. In fact, the statute specifically states that it applies to institutions of vocational education.

Consider the Policies of the School

Students, faculty, or staff who are looking for a remedy for harassment or other forms of discrimination in a college, university, or other academic institution should also examine the school’s policies. Offensive or harmful conduct that violates Title IX often violates a school’s code of conduct. It may be possible to seek relief for a violation of the school’s policies.

Duffy Law Helps Protect Rights Under Title IX and School Codes of Conduct

The right to be free from discrimination and harassment on the basis of sex has become very complex as Title IX rules and interpretations have expanded over the years. Challenges through lawsuits and institutional claims of exemption add to the confusion.

At Nesenoff & Miltenberg, LLP, we are committed to helping individuals protect their rights and future opportunities at educational institutions. If you have been accused of a Title IX violation or conduct code violation or believe that a Title IX violation or conduct code violation has not been treated properly by your school, an attorney may be able to help protect your rights. For a confidential consultation with our team, call 212-736-4500 or contact us online today.