Following the COVID-19 outbreak, many independent schools applied for and received certain federal stimulus benefits, such as Payroll Protection Program (PPP) funds and Economic Disaster Loans. The federal government has confirmed that acceptance of such aid triggers compliance obligations, including the mandatory provisions of Title IX of the Education Amendments Act of 1972, Title VI, the Age Discrimination Act, and Section 504 of the Rehabilitation Act of 1973.

The legal obligations that many independent schools have incurred as a result of their acceptance of federal loan funds are not permanent. The U.S. Small Business Administration (SBA) has made it clear that once the loan is paid or forgiven, the obligations will no longer apply. One important distinction, however, is that the duration of any legal obligations may be extended depending upon the purpose for which the federal assistance was applied. For example, if any federal aid funds were used to pay rent or mortgage interest, (as permitted by the PPP application), this may extend the duration of the federal regulation for as long as the property or building is used to provide educational programs or activities.

Generally, Title IX prohibits discrimination in school programs and activities on the basis of sex. Most independent schools already have a non-discrimination statement and related policies and procedures; however, these are generally not enough to demonstrate full compliance with Title IX.

Some of the key compliance requirements for Title IX include: appointing a Title IX coordinator to receive and investigate complaints of sexual harassment, sexual abuse, and sexual violence; providing notice to students and employees of the name and contact information for the coordinator; adopting appropriate grievance procedures for the “prompt and equitable resolution” of complaints of discrimination, sexual harassment, and sexual violence; providing notice of a non-discrimination statement to all applicants for admission and employment, students, parents and employees, and including such notice in all school publications, admissions, and employment materials.

Title IX regulations include an exemption for certain educational institutions – including independent schools – from the prohibition against discrimination on the basis of sex in admissions and recruitment. Therefore, a school may still recruit and admit students of one sex even if it receives federal financial assistance. The SBA has stated that the operation of private, single-sex elementary and secondary schools is still permitted.

Title VI requires that recipients of federal assistance ensure that no one, on the basis of race, color, or national origin, is excluded from participation in, denied the benefits of, or is otherwise subjected to discrimination by the recipient’s business or other activity. Most independent schools already employ policies prohibiting such discrimination. However, Title VI creates a federal obligation to prevent discrimination, and permits the federal government to both investigate and conduct compliance reviews. The Title VI protections extend broadly to applicants, employees, students, parents and others. To ensure compliance with Title VI, a school would need to have a compliance procedure that allows for the reporting and investigation of any complaint of discrimination or harassment on the basis of race, color, or national origin, and must permit the SBA to investigate such complaints.

Section 504 prohibits discrimination on the basis of disability in programs or activities at schools that receive federal financial assistance. As with Title VI, most independent schools already have an obligation under the Americans with Disabilities Act (ADA) (which shares the same definition of “disability”/“handicap” with Section 504) not to discriminate on the basis of a disability.

Independent schools will continue to be exempt from the Family Educational and Privacy Rights Act (FERPA) because the funding source for the PPP loans is not the U.S. Department of Education.

Our Education Law team at Carmody, Torrance, Sandak & Hennessey, LLP is available to assist you should you have any questions. Please contact any of our team members below.

Vincent Farisello
(203) 578-4284;

Sarah S. Healey
(203) 578-4225;

Fatima Lahnin
(203) 784-3116;

Tamara M. Nyce
(203) 578-4275;

Ann H. Rubin
(203) 578-4201;

D. Charles Stohler
(203) 575-2626;

Giovanna T. Weller
(203) 575-2651;

Nick Zaino
(203) 578-4270;

Ann H. Zucker
(203) 252-2652;