Dear Colleague Letter to Independent Schools: Federal Aid and Legal Compliance (Title IX) – May 2020

Dear Colleagues,

As you are considering accessing federal financial assistance for your school, it is important to understand that accepting government money comes with several significant compliance issues including Title IX, Title VI, Section 504, and other laws.  See the SBA loan application  (https://www.sba.gov/sites/default/files/2020-04/PPP-Borrower-Application-Form-Fillable.pdf), specifically, this provision on page 4 that references the laws Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Age Discrimination Act of 1975:

Civil Rights (13 C.F.R. 112, 113, 117) – All businesses receiving SBA financial assistance must agree not to discriminate in any business practice, including employment practices and services to the public on the basis of categories cited in 13 C.F.R., Parts 112, 113, and 117 of SBA Regulations. All borrowers must display the “Equal Employment Opportunity Poster” prescribed by SBA.  

There are details and nuances to complying with these statues that independent schools are not familiar with.  

As I see it, compliance with Title IX expectations will be our most immediate challenge.  Of course, our schools already have policies regarding discrimination, harassment, etc., it is important to note that receiving federal financial aid triggers other requirements. Most current policies, while good, do not meet those standards.  Some things that will need to be added will include a grievance procedure, a policy address sexual discrimination, hiring or appointing a Title IX coordinator and deputies, and a full program review.   An additional complication is that PPP comes from SBA and their guidance is based on the Department of Ed’s and SBA may add their own interpretation and guidance.  

Under Title IX, sexual violence (including sexual harassment) counts as forms of sexual discrimination, thus activating a Title IX process that includes approach different then we are used to for handling these sorts of incidents.  For example, Title IX requires prompt, fair and impartial investigation, that all parties receive information and have a right to ask questions about formal and informal processes, have an advisor present during all meetings, participants have an equal chance to participate including the opportunity to identify witnesses and relevant evidence, right to file a complaint with law enforcement, and a right to learn of and access to support services.  Additionally, investigations must occur independently of law enforcement meaning that we cannot ‘wait’ for law enforcement before we investigate.  These are all significant changes from how many of our schools handle things now.  

This article from NAIS (Coronavirus (COVID-19) Considerations for Schools: Does Title IX Apply to My School?) provides a lot of good information about the regulations and the fact that the PPP loans are considered federal funding.  An excerpt, 

Although many independent schools, particularly those with upper school students, have sexual misconduct policies in their student handbooks, these policies do not need to comply with federal Title IX regulations unless the school receives federal financial assistance (FFA). But if your independent school has received (or anticipates receiving) Paycheck Protection Program (PPP) loans through the U.S. Small Business Administration (SBA)[1] to weather the financial costs of the COVID-19 pandemic, you are now considered to be receiving FFA.[2] The receipt of FFA subjects your school to Title IX[3]—bringing legal and procedural responsibilities that may be unfamiliar. This article summarizes these newly applicable Title IX obligations, but we encourage schools to consult with counsel on the adequacy of their specific policies, both in light of the current SBA Title IX regulations and the impending U.S. Department of Education (ED) updated Title IX regulations expected later this month.

 […] 

Although the SBA regulations are not overly detailed, schools receiving PPP will—at the very least—need to do the following:

• • Designate at least one employee to coordinate the school’s efforts to comply with and carry out its responsibilities under the SBA’s Title IX regulations, including receiving and investigating complaints.
  • Notify all students and employees of the name, office address, and telephone number of the employee appointed.
  • Adopt and publish grievance procedures providing for “prompt and equitable resolution” of student and employee complaints.
  • Create a policy of nondiscrimination stating the school does not discriminate on the basis of sex in educational programs or activities.
  • Notify the following of the school’s nondiscrimination policy: (a) applicants for admission, (b) applicants for employment, (c) students, (d) parents of elementary and secondary school students, (e) employees, (f) sources of referral of applicants for admission and employment, and (g) all unions or professional organizations holding collective bargaining or professional agreements.
  • Prominently include the nondiscrimination policy in “each announcement, bulletin, catalog, or application form that it makes available to any person” described above or “which is otherwise used in connection with the recruitment of students or employees.”
  • Apprise each of its admission and employment recruitment representatives of the nondiscrimination policy.
  • Conduct a self-evaluation to evaluate current policies and practices and the effects of such policies and practices on the admission and treatment of students, and the employment of academic and nonacademic personnel working in connection with the school’s education program or activity.

In some other articles, NAIS goes on to suggest that schools ask the following questions regarding compliance with these regulations: 

1. 1. How do we define sexual discrimination?
   2. Does our definition include sexual harassment and sexual violence?
   3. Do we define consent in the context of sexual activity?
   4. Does our policy apply to all aspects of our school (i.e., all programs and activities)?
   5. Does our policy apply to students and employees?
   6. How can people make reports?
   7. Can third parties (i.e., parents) make reports?
   8. What role will the Title IX coordinator take in our response?
   9. How do we decide if an investigation is warranted?
   10. Who will conduct the investigation?
   11. What is the process for interviewing the parties and witnesses?
   12. Will we have a live hearing?
   13. Who will be the decision maker?
   14. What standard will the decision-maker apply (i.e., preponderance of the evidence, clear and convincing, etc.)?
   15. Do we have anti retaliation provisions in our policy?
   16. Can the parties appeal and, if so, on what grounds and to whom?

In summary, while we should take federal aid if needed, there are other “costs” that come with it.  I am happy to discuss this with anyone and help in any way. 

References

• https://www.nais.org/media/MemberDocuments/Legal/NAIS_Legal_Advisory_Guide_for_Considering_Federal_Financial_Assistance_2018.pdf
• https://www.nais.org/articles/pages/member/legal/coronavirus-covid-19-considerations-for-schools-does-title-ix-apply-to-my-school/
• https://www.nais.org/articles/pages/additional-covid-19-guidance-for-schools/#titleIX 
• https://www.fisherphillips.com/resources-alerts-schools-accepting-covid-19-loans-must-be
• https://www.sba.gov/sites/default/files/2020-04/PPP-Borrower-Application-Form-Fillable.pdf