Restoring a Title IX status quo - Fine Point Communications

While headlines last week focused on new federal regulations around Title IX, a smaller story involving that law had much greater effect on independent schools: In “a big win” for schools, a federal appellate court confirmed that Title IX does not apply to them.

That had long been the nationwide understanding, until a federal judge put it in doubt in 2022. On March 27, the 4th U.S. Circuit Court of Appeals cleared things up, unanimously deciding that a private school’s nonprofit status did not subject it to Title IX and its prohibitions on sex discrimination.

Advocates for independent education described the stakes of the case — Buettner-Hartsoe, et al., v. Baltimore Lutheran High School Association, d/b/a Concordia Preparatory School — as extraordinary. The financial onus of abiding by Title IX, they warned, “threatens the very existence of independent schools.”

The crux of the 2022 ruling was whether the tax exemption enjoyed by nonprofit organizations amounts to “federal financial assistance” — the trigger for mandating a school’s compliance with Title IX. No way, the 4th Circuit said.

“The plain text of Title IX contemplates the transfer of funds from the federal government to an entity,” the three-judge panel wrote in its opinion. Tax exemption, though, is an indirect benefit, one in which “no funds actually change hands.”

An indirect benefit is different, the judges wrote, than “federal financial aid through indirect means,” in which funds do change hands. The latter would bring Title IX into effect, but that was not the situation in this case, the court said.

Its opinion was silent on the hypothetical matter of, say, an independent school accepting the federal government’s Paycheck Protection Program (PPP) loans during the COVID-19 pandemic. Since federal funds changed hands there, would the school be subject to Title IX?

That’s a question for another day. For now, independent schools can continue to trust that Title IX doesn’t apply to them.

Keep your eyes and ears open

A Refill reader pointed out that last month’s discussion of a “post-social media” era skipped over one valuable way X, Instagram and others continue to help schools today — as an early-warning system. Good point!

Schools heard a lot about “social listening” back when Twitter was a vibrant platform and companies like Sprout Social, Hootsuite and Buffer made businesses out of their solutions.

Such monitoring is discussed less often now. Yet it’s still important to keep track of social channels day-in and day-out. For one thing, a school’s connection to an emerging story will likely show up first on social, whether through mention of an official tag or of the school’s name.

For another, the feed could contain vital safety information, as a recent report highlighted. In February 2023, people sheltering in place at Michigan State University from a gunman used their phones to tweet information to the campus police. Unfortunately, no one at MSU was minding the Twitter feed during evening hours, according to an independent review.

Michigan State changed its procedures and will now have communications professionals monitor social accounts during emergency situations. This is a step schools, too, should add to their crisis-response plans.

Don’t-miss clicks

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