Sexual harassment and assault occur in private schools too—secular and religious. These schools can also have legal obligations to comply with federal and state nondiscrimination laws.
UPDATE: During the COVID-19 pandemic, many independent schools received funds from the Paycheck Protection Program (PPP) of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Recipients of PPP loans are recipients of federal financial assistance, imposing obligations under numerous federal laws and corresponding regulations, including Title IX, Title IV, the Age Discrimination Act, and Section 504 of the Rehabilitation Act of 1973.
Learn more how you can hold private schools accountable for maintaining a safe learning environment free from sexual harassment.
Title IX and Private K-12 Schools
by Christine Garner, with input from Bill Howe, attorney Seth Galanter, and SSAIS.
This FAQ is about Title IX and private K-12 schools. It is not intended as definitive legal advice. We recommend that you contact an attorney to review your specific situation. The Department of Education’s Office for Civil Rights (OCR) continues to change its guidance. This information is based upon guidance provided prior to March 10, 2018.
Q1. Is a private K-12 school required to comply with Title IX?
If a private school receives any federal financial assistance (see Q3, Q4, and Q5 below), then it must comply with Title IX and not discriminate on the basis of sex (including in its response to sexual assault of a student), unless the school has a religious exemption (see Q2 below).
The statute provides that the entire private school must abide by Title IX even if only one department of the school receives federal financial assistance. If a private school is part of an entity with more than one school, then all schools within the entity must adhere to Title IX, even if only one of the entity’s schools receives federal financial assistance.
For example, if a private school receives lunches subsidized by the federal government, then the school cannot discriminate on the basis of sex in any of its programs – the non-discrimination obligation is not limited just to when it is serving lunch.
Q2. Must a private K-12 religious school comply with Title IX?
If a private religious school receives any federal financial assistance, then it must comply with Title IX. But it is exempt from those Title IX requirements that are inconsistent with the religious tenets of the religious organization that controls it.
Religious schools may submit exemption claims to federal agencies (such as the Department of Education) that give them federal financial assistance directly or indirectly, but a school is not required to file a written claim ahead of time for an exemption to be valid. The school can raise the religious exemption in response to a Title IX complaint.
To date, the most common religious exemptions apply to sports, pregnant students, or LGTBQ rights. It is difficult to envision a valid religious tenet that would exempt a school from having to address sexual harassment or sexual assault. If a religious school claims an exemption, you could still file a complaint with the federal government (see Q7 below), and it will decide if the exemption is valid.
Q3. What qualifies as federal financial assistance?
Federal financial assistance is assistance that assists a recipient financially. The most common type of assistance is a grant of money. But financial assistance is not limited to money. Anything that the federal government gives (directly or indirectly) to a school that the school would otherwise have to pay for is financial assistance. For example, as the Department of Justice explains, financial assistance can include the transfer of land, buildings or equipment; the use or rent of federal land, buildings, or equipment at below market value; federal training of school personnel; a loan of federal personnel to a school; subsidies; and other arrangements with the intention of providing assistance. Federal financial assistance does not, however, encompass contracts of guarantee or insurance by the federal government.
Not only must an entity receive federal financial assistance to be subject to Title IX, but the entity also must receive federal assistance for the time (usually the same school year) of the alleged discriminatory act(s). One exception to this is when the assistance is provided in the form of real or personal property. In this situation, the recipient is subject to Title IX for as long as it uses the property.
Private K-12 schools that receive federal financial assistance usually receive it from the Department of Agriculture (free or subsidized meals) or the Department of Health and Human Services (health services). Private schools might also receive financial assistance from other federal agencies. The Department of Education rarely, if ever, provides federal financial assistance to private K-12 schools.
Q4. If a student or teacher at a private school receives Title I or special education services from a public school, does that mean the private school is a recipient of federal financial assistance?
Title I of the Elementary and Secondary Education Act (ESEA) and the Individuals with Disabilities Education Act (IDEA) require public school districts to provide eligible students with special education resources and to provide “equitable services” to eligible children in private schools.
Department of Education policy states that when a private school student or teacher receives “equitable services” from a public school under ESEA Title I or IDEA, that does not mean that the private school is a recipient of federal financial assistance. However, the Department of Education also states that even though the private school is not a recipient, a public school that provides the equitable services is responsible for making sure that no discriminatory practices occur in the private school.
Q5. For a private school to receive federal financial assistance, does the money have to come directly from the federal government?
No. A private school may receive federal financial assistance even if it receives the federal money indirectly. In many federal programs (such as free or reduced-price meals or Medicaid), the federal government gives money to the States and then each State gives out the money (or spends the money on goods and services). Federal financial assistance may be passed to a private school through a state education agency, a state health department, a school food authority, or a public school district.
Q6. How can you know whether your private school receives federal financial assistance?
First, look at the school handbook and other paperwork you’ve received from the school. Federal agency regulations require recipients of federal financial assistance to include notices in each bulletin, catalog, or application form.
Second, ask the private school administration if they receive federal financial assistance. The school should know because they are required to sign an assurance of compliance prior to receiving the funds. This compliance provision can either be a separate form or part of a broader agreement with either the federal agency or with a state agency distributing federal funds. The assurance of compliance states only that the school “assures” that the school complies with Title IX and the other federal civil rights laws. The signed assurance of compliance does not mean that a federal agency has audited to see if the school is truly in compliance.
If the school refuses to answer or you do not trust their answer, you can search USAspending.gov (see instructions below) or the Federal Audit Clearinghouse. These databases show the federal financial award amount and the agency that provided the money.
Even if the school does not appear in one of these databases, it still might receive federal financial assistance because the federal assistance may be received indirectly, such as through a state education or health agency.
If you cannot verify whether your private school receives federal financial assistance, you can still file a Title IX complaint with a federal agency, such as Department of Agriculture, and they can help determine if the school receives federal funds.
Because filing a complaint with a federal agency is not a prerequisite to filing a lawsuit, and may not toll the statute of limitations, it’s best to consult with an attorney to determine the best course of action.
Q7. If my private school does receive federal financial assistance, how do I a file complaint under Title IX?
If you are not able to resolve your complaint with the private school, you can file a lawsuit in court or file a complaint with the federal agency that provided the school with financial assistance. You do not need an attorney to file a complaint with the federal agency, but it’s always better to consult with an attorney if you can.
The two most common sources of federal financial assistance to private K-12 schools are the Department of Agriculture and Department of Health and Human Services. As noted above, Department of Education rarely, if ever, provides federal financial assistance to private K-12 schools.
Here are the links to file complaints:
- Department of Agriculture: online through the Office of the Assistant Secretary for Civil Rights.
- Department of Health and Human Services: online through the HHS Office for Civil Rights.
- Other Federal Agencies: The Department of Justice has a webpage with links to all the civil rights offices of federal agencies. On the same webpage, there are links to each department’s process for filing a civil rights complaint.
If a private school receives funds from more than one federal agency, you only need file a complaint with one agency.
Q8. When must I file my Title IX complaint?
You must file a Title IX complaint within 180 days of the latest occurrence of the discrimination. A federal agency sometimes grants a waiver of the 180-day filing period, but it’s best to submit your complaint within that time frame. Because discrimination can be ongoing, discuss your filing deadline with an attorney as soon as you discover the discrimination.
Q9. What if my private school isn’t required to comply with Title IX?
You do not need to rely only on Title IX to prove sexual harassment and sexual assault are wrong. Even if your private school is not required to comply with Title IX, you can still demand that it address these issues and live up to Title IX standards. If a student is a victim of sexual assault at a private school, the action is still wrong and the school should respond to protect and help the victim. Depending on the facts, a private school might be liable for breach of contract, negligent supervision, or some other legal theory that would be best discussed with an attorney.
Private schools that receive federal financial assistance must also comply with other federal civil rights laws and an incident could violate more than one law: discrimination based on race, color, or national origin is prohibited by Title VI of the Civil Rights Act of 1964; discrimination based upon disability is prohibited by Section 504 of the Rehabilitation Act of 1973; age discrimination is prohibited by the Age Discrimination Act of 1975. In addition, regardless of whether a private school receives federal financial assistance, it must comply with Title III of the Americans with Disabilities Act of 1990, unless it is controlled by a religious organization.
Most states have their own anti-bullying laws. These statutes define bullying in different ways. Check with an attorney about whether a private school must comply with anti-bullying laws in your state.
In conclusion, if a student has been a victim of sexual harassment, do not give up. You have the right to demand protection and help from your private school.
- Browse to USAspending.gov advanced search webpage.
- On the left side, in the Filters box, under Time Period, select All Fiscal Years.
- In the Filters box, click Award Type, and select all of the categories (Contracts, Grants, Direct Payments, Loans, and Other).
- In the Filters box, click Recipient, and in the Recipient Name search box, enter the name of the school or portion of the name, and then click the search icon (magnifying glass).
- Scroll to the top or to the bottom of the Filters box, and then click Submit Search.
Betsy DeVos Graduated from a Private High School: Why is it now facing a Title IX Lawsuit?
Education Secretary Betsy DeVos graduated Holland Christian High School in 1975. Through the efforts of Stop Sexual Assault in Schools, a family is now suing the school for violation of Title IX. Find out why this matters to all K-12 students and families.
“When the U.S. Secretary of Education’s own alma mater flouts its responsibilities under Title IX, we begin to understand the pervasive disregard for Title IX compliance that includes the majority of public schools nationwide,” said SSAIS Co-founder Esther Warkov.
The Devastating Effects of Sexual Assault in Private Schools
In this video made for Stop Sexual Assault in Schools, Alex and Susan Prout discuss how their lives were also devastated by their daughter Chessy’s rape at the prestigious St. Paul’s School and the subsequent trial that attracted national and international attention. Here they offer heartfelt advice for private school parents.
Standing in New York’s JFK airport, John Bradbury received a call. A partner and Director of Issues and Crises at Ketchum, a leading public relations firm, phone calls from colleges dealing with crises were not uncommon. This call, from the Chair of the Board of Trustees of the Emma Willard School, a prestigious all-girls, grades 9-12 predominantly boarding school in upstate New York, was different.
In July 2016, twenty years after the events took place, a former Emma Willard student came forward to publicly share her story of being raped by a teacher at the school, and how the administration at the time failed to appropriately respond to her disclosure. As the story unfolded, the current administration worked to understand these past events, and the Emma Willard community, including faculty, staff, students, parents and families, and the active alumnae community wrestled with feelings of shock, anger, and distrust.
While the common response from institutions in the midst of a PR crisis is to circle the wagons, the Chair told Mr. Bradbury that Emma Willard wanted to take a different approach: they wanted to learn from the the mistakes of the past. Not just that, but they wanted to share their experience and lessons learned with other private schools who were in similar situations, of which there were many. The Emma Willard School didn’t just want to change how private schools addressed sexual violence, they wanted to become leaders in doing so.
Private schools are not immune from the critical need to address sexual violence, including harassment and assault, as the headlines over the past years have made clear. Unlike public schools, private institutions that do not accept federal money are not legally beholden to Title IX, the law stating that no person should be subjected to discrimination in their education on the basis of sex. Yet there are myriad reasons remain as to why these schools can, and should, act in a manner consistent with the law:
- Educational duty: As educators responsible for shaping the minds of their students, private schools should ensure that all students are free to fully access and engage in their educational pursuits without experiencing sexual violence of any kind.
- Mission-driven responsibility: Many privates schools are driven by a mission that can only truly be fulfilled if a student can learn in an environment free from sexual violence and the devastating consequences – mental, physical, emotional, and academic – that often follow it. The Emma Willard mission is to “proudly [foster] in each young woman a love of learning, the habits of an intellectual life, and the character, moral strength, and qualities of leadership to serve and shape her world.” The administration and Board felt it was impossible to foster these qualities without reconciling with their past and wholly embracing the task of creating a culture of respect on campus. “I saw this as an opportunity for the school to be a leader in this area, and to do better than what was done in the 1990s and in other times,” said Lisa LeFort, who served as Chair of the Board of Trustees at the time the allegations came to light. “Safety on campus depends on establishing a culture of transparency and respect.”
- Unique opportunities: While the law may not require it, the flexibility and set-up of private schools present unique opportunities to lead the effort to address sexual violence:
- Curriculum: Since they are not bound by a state-mandated curriculum, private schools have the freedom to design their curriculum as they choose. This might include developmentally-appropriate content on sexual and reproductive health, including discussions of consent, healthy relationships, and bystander intervention, as well as identifying opportunities to integrate these issues into classroom discussions of literature or history. Additionally, the head of school (or similar) does not need approval from a superintendent or district School Board to adopt changes to the curriculum.
- Access to resources: While resources in any institution are finite, many private schools experience more flexibility than their public counterparts. Particularly in well-established private schools with a robust alumni community, there are opportunities to raise funds to support efforts to address sexual violence.
- Creating community: Private schools have an opportunity to shape their desired community. They may decide that addressing sexual violence head-on and fostering a culture of respect on their campus is essential, and through their decisions, actions, and messaging, they can build a community that embraces that charge. Boarding schools, who very much mirror a four-year residential college in their living/learning environment, have even more opportunity to shape community norms.
For these reasons and more, private K-12 schools can equip their students with the knowledge and skills needed to navigate potential experiences with sexual violence in higher education, the workplace, and generally in life. When confronted with historical allegations, the Emma Willard School chose to lean in and become leaders in this effort.
To kick off their work, the Emma Willard School engaged Culture of Respect, a NASPA – Student Affairs Administrators in Higher Education signature initiative to address sexual violence in higher education. Until this point, Culture of Respect had worked exclusively with colleges and universities, but was eager to adapt their model and tools to fit Emma Willard.
Overview of the Process
Culture of Respect came to Emma with its signature tools to help guide the school’s work: the CORE Blueprint is a six-point strategic roadmap that engages all campus stakeholders in addressing sexual violence. It is organized around six pillars, each of which plays an essential role in building a comprehensive institutional response to sexual violence.
The CORE Blueprint framework has traditionally been used in conjunction with the CORE Evaluation, a robust self-assessment survey meant to be administered by a multidisciplinary team of diverse stakeholders from across the school. The CORE Evaluation helps a school inventory its programs, policies, and procedures and identify areas for growth. Culture of Respect created a custom version of the CORE Evaluation, with questions tailored to reflect a secondary school audience.
Emma Willard organized its multistakeholder group, known as its Campus Leadership Team (CLT), in the summer and fall of 2016; it included students, faculty, staff, parents, and alumnae. Together, they administered the CORE Evaluation in early 2017. Guided by their CORE Evaluation results and an accompanying report created by Culture of Respect staff, the CLT translated gaps in their efforts into a detailed action plan, which they continue to work to implement on campus.
Examples of achievements that resulted from their action plan include:
- Added 2.5 full-time employees in residential faculty, counseling, and nursing
- Nursing staff completed training on trauma-informed nurse forensic exams with the local Sexual Assault and Crime Victims Assistance Program
- Improved working relationship with local hospital and law enforcement
- Memoranda of Understanding (MOUs) are being put in place with community service providers
- Brought together students to review and revise all aspects of the student handbook, particularly those related to student safety and well-being, in order to clarify the language and intention of the policies and protocols
- Reviewed and updated school policies related to sexual misconduct, as well as the employee handbook and standards of behavior
- Increased class time dedicated to discussions about consent and health education (Since beginning their work with Culture of Respect, Emma Willard School has doubled the number of classes related to healthy relationships, consent, and sexual health.)
- Expanded training for student leaders to include training on bystander intervention, and sexual violence awareness and response
- Provided professional development training for faculty and staff on boundaries for maintaining healthy relationships with students, as well as understanding complexities of gender
- Held regular town hall meetings about issues related to sexual violence, including the #MeToo movement
- Created an internal online calendar of activities related to sexual violence prevention and response that is available to students, employees, parents, alumnae, and a forward-facing webpage for the general public
- Students, faculty, and staff participated in the April 2018 Sexual Assault Awareness Month (SAAM), including distributing resources from the National Sexual Violence Resource Center, screening the documentary Audrey & Daisy, and participating in the 11th Annual Walk a Mile in Her Shoes event in Troy, NY
- Established the READY Center, a drop-in space for students committed to promoting their wellbeing through holistic and proactive educational programming
- In addition to administering the CORE Evaluation, Emma Willard School plans to administer a climate survey to learn more about students’ perceptions of their campus’s climate for sexual violence, as well as their perceptions of how their institution responds if violence occurs.
Most notably, employees have noticed that since this work began, students have been more willing to speak openly to teachers and administrators, and seek services and support when they need it. Shelley Maher, Dean of Students at Emma Willard, notes that as a result of the work they’ve done, “the girls and adults have a better understanding now that sexual violence needs to be believed, addressed, and never, ever undervalued, devalued or minimized.”
While Emma Willard has made great strides at implementing the objectives on their action plan, they are showing no signs of slowing down. Their staff agree that there is no “done” in this work, no finish line. Rather, this is an ongoing, iterative process of self-reflection and improvement. The PR professionals at Ketchum continue to receive phone calls from institutions in crisis, from those who are confronting mistakes of their distant past as well as those that occurred in recent months and years. When these calls come in, they try to encourage the school’s administration to think of their situation not as an opportunity to deflect and defend, but to lean in and lead.
By Kathryn Leehane, author, freelance writer, and victims advocate
In October 2017, I wrote an OpEd for the Washington Post about the sexual abuse I endured in high school and how it was mishandled by the administration. Though I didn’t disclose any names or locations, dozens of people figured out what teacher I was talking about and came forward with their own stories of mishandled abuse.
The reports of sexual abuse and misconduct span decades and involve over a dozen abusers and over a dozen mandated reporters who violated the law by not contacting police when presented with the abuse complaints. The statute of limitations for civil and criminal action had expired in many of the cases, so most of the survivors have few legal options. Additionally, Presentation high School has not received any federal funding that would have allowed a family to sue them for violating Title IX.
The standard protocol when a school is accused of sexual misconduct/cover-up is for the school’s leaders to call for an independent investigation, as recommended by the National Association of Independent Schools (NAIS). It’s important for a neutral third party to be able to question the appropriate individuals to determine if anyone broke the law, but also to demonstrate to the school’s alumni, parent, and student communities that it takes the allegations seriously.
Sadly, Presentation’s current President, Mary Miller, has refused to conduct an independent investigation, and instead has accused the victims of “trying to revise history.” While I had written a piece about closure, I could not turn my back on the survivors and the current and future students at the school. I teamed with another alum, Cheryl Hodgin Marshall, and a child abuse advocate/lawyer to advocate for the victims and enact change at the school.
Based on our experiences, here is a list of actions to take when working for justice:
- Facebook Group: Start a private (or secret) Facebook group to facilitate communication between alums and concerned parties. Appoint an administrator/moderator who will screen potential members and who will moderate discussions to keep discussions civil.
- Online Petition: Create an online petition to request an independent investigation, which is “industry standard” under these circumstances.
- Meeting with the Board of Directors: Request a meeting with the Board of Directors to present allegations and work to make changes. (We were unsuccessful at doing this.)
- Press Conferences: Hold a press conference and invite local media to share survivor and witness experiences and respond to any public statements made by the school. Our press conferences were scheduled just prior to school breaks to minimize the disruption to the students.
- Postcard Campaign: Write letters and/or postcards to the Board of Directors members and the Sisters of the Presentation (who own the school), pleading for change.
- Website: Create a website to outline the problem and creating a timeline of allegations, which is critical in maintaining transparency. Provide resources for survivors, and suggest ways for people to help.
- Social Media Campaign: Create accounts on social media to increase public awareness. Use the same graphics/design as the website to create a recognizable “brand.”
- Facebook: Make Pres Safe. Good for long text and graphics. Tag the school, the church, the local police department, the district attorney, and/or any relevant parties.
- Twitter: Good for short text. Use hashtags relevant to the school and to the movement (e.g., #MeTooK12, #CatholicMeToo, #ChurchToo). Tag the school, the church, the local police department, the district attorney, and/or any relevant parties. @MakePresSafe
- Instagram: Make Pres Safe. Good for pictures and shareable images. Use hashtags relevant to the school and to the movement to gain momentum (e.g., #MeTooK12, #CatholicMeToo, #ChurchToo).
- Letters to Donors: Write a letter to donors to ask them to temporarily withhold donations until appropriate changes are made at the school.
- Vigils/Demonstration: Conduct peaceful vigils/demonstrations during board meetings to increase public awareness: Our demonstrations were all conducted outside of school hours—in the evenings during various Board meetings.
- Town Hall: Conduct a Town Hall-style meeting at a local community center. Use social media to invite community members.
NOTE: Survivors of childhood sexual abuse and victim advocates often face harsh criticism and attempts to discredit and/or shame them. It’s essential to maintain a professional tone—especially when dealing with detractors. Focus on facts, not emotions. It is not always easy, but it is critical. It may be necessary to take break to regain composure before responding to comments.
Many current teachers, parents, and students fear backlash when trying to ensure schools are adhering to mandatory reporting laws. Several of the tasks above can be done anonymously. There are also whistle-blower laws to protect teachers from losing their jobs.
We have been advocating for permanent changes in leadership and policy at Presentation High School for nearly a year. In most other organizations/institutions, the accused enablers of sexual abuse would have been put on leave by now. But we will not give up; we must protect the children at the school and advocate for the survivors. Doing the right thing isn’t always easy, but it’s always the right thing to do.