Does Title IX Apply to Private Schools in New York?

Lesley Brovner & Mark Peters
October 17, 2023

Title IX of the Educational Amendments of 1972 (Title IX) applies to all schools – public and private – that receive federal funding. Once a school receives federal funding, its existence as a private or independent school does not exempt it from Title IX’s requirements except in certain specific ways, discussed below.

What Is Title IX?

Title IX provides, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The Title IX complaint process is an important mechanism available for students who want to combat sexual assault or harassment at school and on college campuses.

Under Title IX, discrimination on the basis of sex can include:

    • sexual harassment (including sexual harassment based on sexual orientation or gender identity)
    • rape
    • sexual assault

Exceptions to Title IX Coverage for Private Schools

There are several exceptions to Title IX coverage

  • Notably, Title IX does not apply to an educational institution that is controlled by a religious organization to the extent that application of Title IX would be inconsistent with the religious tenets of the organization. 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12(a).

Other exemptions include:

  • private colleges’ admissions policies
  • membership practices of fraternities and sororities

Impact on Students and the School Community

According to the Rape Abuse and Incest National Network (RAINN) the leading advocacy group in this area, 26-percent of female college students and almost 7-percent of male college students will suffer some form of sexual assault during their undergraduate years. The trauma of these assaults has a profoundly detrimental impact on students’ health, well-being and educational experience.

Sexual assault in schools and on campus is, among other things, a fundamental civil rights issue: When students suffer sexual assault, sexual harassment, and other forms of sexual misconduct, they are deprived of equal and free access to an education. Title IX requires institutions to protect all students, faculty, and staff from sex-based discrimination, including both sexual harassment and sexual violence. If the administration is made aware of an incident, covered educational institutions must take immediate steps to address the issue.

The Future of Title IX as it applies to private independent schools

Recently, several courts that have considered the issue of Title IX application to private schools have expanded the definition of the receipt of federal funding to include schools that do not directly receive funding but do receive 501(c)(3) tax exemptions. Most notably, last year in Buettner-Hartsoe v. Baltimore Lutheran High School Assoc., 21-Civ-0691 (D. Md. July 21, 2022) the court held that because a private school had a tax exempt status, it received federal funding and was subject to Title IX requirements. The law in this area continues to evolve. If Buettner-Hartsoe is adopted in the Second Circuit (which covers New York) it would have a significant impact as it would vastly expand Title IX coverage to private high schools that do not receive direct federal funds but enjoy tax-exempt status.

When To Contact an Attorney

If you have been the victim of sexual assault, harassment or other discrimination at an educational institution in New York State, and want advice on your legal options, contact the lawyers at Peters Brovner LLP, who have experience with these issues, for a legal consultation.