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Independent Schools Who Took PPP Must Comply With Title IX

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This fall I was asked to represent a 17 year old student of an independent school facing an accusation of off-campus sexual assault. Neither the Head of School nor its large national law firm believed that Title IX applied to them. They were wrong and it resulted in a very positive result for my client as well as a very real risk that this school’s forgiveness for its multi-million dollar PPP loan would be canceled.

Here is how COVID has impacted Title IX.

Many independent schools applied for and received funds from the Paycheck Protection Program (PPP) of the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

As a result, this triggers obligations under numerous federal laws and corresponding regulations, including Title IX. Independent schools must now insure their policies and procedures comply with the Title IX regulations that went into effect on August 14, 2020.

This requires schools to appoint a Title IX coordinator to receive and investigate complaints; providing notice to students and employees of the contact information for the Title IX coordinator; adopting grievance procedures for complaints of discrimination, sexual harassment, and sexual violence; providing a notice of a nondiscrimination statement to all applicants for admission and employment, students, parents, and employees and including such notice in all school publications, admissions, and employment materials, as prescribed by the Regulations; and evaluating whether there are equal athletic opportunities for members of both sexes.

Compliance with Title IX is not permanent. The SBA has made clear that once the PPP loan is paid or forgiven, independent schools are no longer required to comply. One important caveat, however, is that the duration of compliance with federal laws and regulations depends upon the purpose for which the federal assistance was used. For example, federal funds used in relation to real property may extend the duration of compliance with the federal regulation for as long as the property or building is used to provide educational programs or activities.

Consequences of Noncompliance: Similar to the SBA’s investigative, compliance, and enforcement provisions of Title VI, if an independent school does not comply with Title IX the SBA can suspend or refuse any financial assistance not yet provided or accelerate the maturity of the loan. The SBA also can make a referral to the U.S. Department of Justice. Additionally, individuals who believe they have been discriminated against on the basis of sex could rely on Title IX to bring a private lawsuit against the school.