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Independent K-12 Schools Receiving CARES Act Assistance Must Comply with Federal Anti-Discrimination Laws, including Title IX and Section 504. Here's how.
The Coronavirus Aid, Relief, and Security Act (CARES Act) provided some welcome financial relief to independent elementary and secondary schools in the form of the Paycheck Protection Program, Economic Injury Disaster Loans, and the recently launched Main Street Loan Facilities. But, as many private K-12 schools are learning, receipt of these federal funds carries the obligation to comply with federal laws prohibiting discrimination for the duration of the loan. These include Title IX, Section 504, ADEA, Title VI, and other laws that prohibit discrimination based on sex, disability, age, race, national origin, religion, and other protected categories.
This article will outline some steps independent schools should take to comply with these federal laws.
Institutions of higher education and public K-12 schools are already familiar with the connection between the receipt and use of federal funds and compliance with federal anti-discrimination laws. At its core, the government wants to make sure that federal funds are being used to support safe, effective, and equitable learning and working environments.
Fortunately, schools have the same goal: to provide safe, effective, and equitable learning and working environments. But for independent schools, the receipt of federal funds will mean a shift in focus. Many independent schools already engage in work that is designed to support students, keep them safe, and treat them fairly. These schools may have policies stating their commitment to a diverse and inclusive learning and working environment and prohibiting discrimination and harassment. But anti-discrimination laws have a different focus and carry different requirements.
Having a policy or a commitment to diversity and inclusion is not enough.
Federal anti-discrimination laws focus on preventing and responding to discrimination and harassment. Under these laws, schools must have robust policies that provide specific information and procedures to take specific action. Some schools are well ahead in creating substantive and meaningful policies and procedures. However, these schools will want to ensure that their policies and procedures comply with the specific requirements of federal law. Other schools are behind. In these schools, policies do not exist, are thin, confusing, or vague, or have not been reviewed since 2004. These schools must take the time to create and revise their policies and procedures.
The good news is that by taking these mandatory actions, schools will see benefits that will live well beyond the life of the federal loan, such as greater clarity around expectations and a formal mechanism to ensure equity. The federal requirements and oversight exist only through the duration of the loan, but the compliance steps that schools take can have long-lasting impact.
The compliance work is detailed and comprehensive.
Here are some recommended steps to frame out your compliance strategy:
1) Identify the person responsible for compliance. The Department of Education's regulations for Age Discrimination, Title IX, and Section 504 of the Rehabilitation Act all mandate that an institution identify a person responsible for coordinating the school's efforts to comply with these laws. Compliance is more than having legal counsel. It means assigning an employee of the organization, as part of their job duties, to engage in activities required by these anti-discrimination laws and by institutional policies and procedures. Schools must identify the person who will be responsible and disseminate their contact information. Schools should also ensure these employees are properly trained for the role. Schools may also consider hiring an external compliance professional to serve in an interim capacity as the school gears up its compliance work.
2) Assess and revise policy and procedure: Regulations mandate that institutions implement grievance procedures that provide for a prompt and equitable resolution of complaints. Procedures must outline how to file a complaint and the steps in the grievance process. The proposed and pending (not yet final and released) Title IX regulations add significant new steps that institutions must take. This work requires an understanding of state and federal laws, and schools should consult their legal counsel.
3) Provide notice: Compliance is more than a link on a website. Regulations mandate that institutions disseminate their policies and procedures to students, parents, employees, applicants for admission (and their parents), and applicants for employment. Disseminate the policies and procedures through electronic and paper means. Hold trainings. The policy and procedures should be easy to find. Schools should train administrators, faculty, staff, and students on the policy, setting expectations and providing notice. Schools will want to make sure parents are involved in the roll out of any new or revised policy.
4) Establish compliance mechanisms. This is where institutions can get into trouble. After creating substantial policies and procedures and disseminating them, schools must be prepared to follow them. The policies and procedures must be applied fairly, consistently, and in a non-discriminatory manner. Create a case management system that includes checklists of steps to take and case management forms to document that a matter has been handled consistent with policy and law.
While this is sounds like a lot of work, it is meaningful, impactful work that will support your students and employees. An effective compliance program provides a formal mechanism to effectuate an equitable learning and working environment. The benefits will last well beyond the date any loans are paid off.
Recommendations for implementing Title IX regulations can be found here. These informational articles also apply to work required in furtherance of all anti-discrimination compliance obligations.