Recent Court Cases May Subject Independent Schools to Title IX Regulations

Two recent court cases, noted below, have ruled that an independent school’s tax-exempt status should be considered federal financial assistance, which would subject these institutions to Title IX regulations.

• July 21, 2022: the U.S. District Court for the District of Maryland – Buettner-Hartsoe v. Baltimore Lutheran High School Association
• July 25, 2022: the U.S. District Court for the Central District of California – E.H. v. Valley Christian Academy

In Buettner-Hartsoe v. Baltimore Lutheran High School Association, the court ruled that the School is subject to the requirements of Title IX of the Education Amendments Act of 1972 (Title IX) because, according to the ruling, its (501(c)(3) status, in and of itself, constitutes receipt of federal financial assistance. Shortly thereafter, the California court came to the same conclusion in E.H. v. Valley Christian Academy. These rulings represent a dramatic change in the understanding of the existing law.

The National Business Officers Association is partnering with the National Association of Independent Schools (NAIS), Southern Association of Independent Schools (SAIS), and the Association of Independent Schools of Greater Washington (AISGW), and a team of legal experts to author an amicus (friend of the court) brief in support of the school’s motion to the Maryland federal court in the Buettner-Hartsoe case to reconsider its decision or, alternatively, to grant an immediate appeal. 

According to NAIS’ legal counsel, “…this opinion does not necessarily mean that all nonprofit schools must have Title IX programs today”. Maryland and California institutions should seek the advice of legal counsel regarding the potential impact of these specific rulings on their institutions. Independent schools across the country may also wish to take proactive steps in anticipation of additional similar rulings, including seeking the advice of legal counsel and reviewing existing policies.

This content was written by CLA’s John Toscano, Principal and Independent School Segment Leader. 

The following additional information provided by RWC, Randy Walker, CPA;

“ A recipient institution that receives Federal funds must operate its education program or activity in a nondiscriminatory manner free of discrimination based on sex, including sexual orientation and gender identity. Some key issue areas in which recipients have Title IX obligations are: recruitment, admissions, and counseling; financial assistance; athletics; sex-based harassment, which encompasses sexual assault and other forms of sexual violence; treatment of pregnant and parenting students; treatment of LGBTQI+ students; discipline; single-sex education; and employment. Also, no recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in a proceeding under Title IX. For a recipient to retaliate in any way is considered a violation of Title IX.”