A Confusing Email from the CDE
(Updated July 20, 2018)
On July 16, 2018, California private school administrators received an email from California Department of Education staff member Sharon Felix-Campos, bearing the subject line: “Sex Equity in Education Act Annual Notification.” The body of the correspondence contained the heading: “SEX EQUITY IN EDUCATION ACT ANNUAL NOTIFICATION.” You received this email because a state law (SB 1375) that was enacted in 2016 requires the CDE to issue an annual notification regarding the requirements established by the bill to “all public schools, private schools that receive federal funds and are subject to the requirements of Title IX, school districts, county offices of education, and charter schools…”
But there’s a problem. The CDE doesn’t know which private schools “receive federal funds,” so it simply sends the notification to all private schools. By reading the remainder of the information on this page, you will have a better understanding of what being a “recipient of federal financial assistance” means. Most importantly, you’ll learn that private schools whose students and/or educators receive federally funded services under programs such as Title I, or Title II, Part A are not deemed recipients of federal financial assistance by the U.S. Department of Education.
This year’s correspondence from the CDE contains the following confusing sentence: “Additionally, the law may not be applicable to all private schools receiving federal funds.” That sentence probably should have read: Additionally, the law may not be applicable to all private schools.
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On April 4, 2017, the California Department of Education distributed an email with the words “SB 1375 Notice” in its subject line. To the best of our knowledge, the correspondence was sent to all private schools with affidavits on file for the current school year.
The correspondence contains the following heading, appearing in bold-face, all-caps type:
“IMPLEMENTATION OF SENATE BILL 1375 REQUIREMENTS RELATED TO SEX EQUITY IN EDUCATION”
The body of the email also contains the following paragraph:
“Senate Bill 1375 strengthens and expands the Title IX and state sex equity in education requirements. Specifically, on or before July 1, 2017, public schools, private schools, school districts, county offices of education, and charter schools are required to post information on their Internet Web site relative to the designated Title IX Coordinator, the rights of students and the responsibilities of schools, and a description of how to file a complaint.”
Accompanying the email is a three-page attachment titled “Implementation of SB 1375” in which various compliance requirements drawn from California Education Code Section 221.6, and selected federal regulations accompanying Title IX appear.
What’s the Problem?
The body of the CDE’s email implies that all private schools are subject to compliance with SB 1375’s provisions, though that is certainly not the case. As Education Code Section 221.6 makes clear, SB 1375’s provisions apply only to “private schools that receive federal funds and are subject to the requirements of Title IX.”
Nowhere in the body of the email, or in the accompanying attachment, does the CDE address the question of how one would determine whether a private school is regarded as a recipient of federal funds, and is, therefore, subject to the requirements of Title IX.
Are Private Schools “Recipients of Federal Financial Assistance?”
For purposes related to the enforcement of Title IX, the answer would appear to be: Generally, no. In describing the scope of Title IX, the U.S. Department of Education’s Office of Civil Rights – the office that has been primarily responsible for the enforcement of Title IX – provides the following information on its “Title IX and Sex Discrimination” webpage:
“Title IX applies to institutions that receive federal financial assistance from ED, including state and local educational agencies. These agencies include approximately 16,500 local school districts, 7,000 postsecondary institutions, as well as charter schools, for-profit schools, libraries, and museums. Also included are vocational rehabilitation agencies and education agencies of 50 states, the District of Columbia, and territories and possessions of the United States.” (Emphasis ours)
Do private nonprofit schools receive federal financial assistance from ED? The U.S. Department of Education addresses that question in a FAQ Related to Nonpublic Schools appearing on its website. In the FAQ, question #9 asks: “Are private elementary and secondary schools whose students or teachers receive equitable services under ESEA or IDEA considered to be ‘recipients of federal financial assistance’?” Here’s ED’s answer:
“No. Private schools whose students and teachers receive equitable services under ESEA or IDEA are not considered recipients of federal financial assistance. These programs are considered to be operated for the benefit of students and teachers in private schools, not for the benefit of the private schools themselves. As a result, certain requirements that apply to recipients (which may include certain civil rights requirements and the military recruiter requirements discussed in question 10) do not apply to private schools by virtue of their students or teachers receiving equitable services under ESEA or IDEA. However, if a private school otherwise receives federal financial assistance, including a grant or subgrant of federal funds to implement a federal education program, the school would be considered a recipient.
“If a private school is a recipient of federal financial assistance, that school is subject to the federal civil rights laws prohibiting discrimination based on race, color, national origin, sex, disability, and age. If a private school is not a recipient, but the private school’s students and teachers receive equitable services under ESEA or IDEA, the LEA involved remains responsible for ensuring that there is no discrimination with respect to the federal education program.”
Thus, a private school whose students and educators receive federally funded services furnished under provisions of the Every Student Succeeds Act and/or the Individuals with Disabilities Education Act is NOT regarded as a “recipient of federal financial assistance” by the U.S. Department of Education. Only private schools that receive federal financial assistance to implement a federal education program are so regarded.
If you have questions about whether or not your private school receives federal funds and is subject to the requirements of Title IX – and is, therefore, also subject to the provisions established by SB 1375 – you are encouraged to seek advisement from qualified legal counsel. Please bring the information contained on this page to your attorney’s attention.
Note: The content displayed on this page is neither intended, nor should be construed as legal advice.
What is SB 1375?
SB 1375 was a bill authored by California State Senator Hannah-Beth Jackson (D. – Santa Barbara) that was signed into law by Governor Brown on September 26, 2016. The text of the bill can be viewed, here. The legislation requires various entities to post specified information relating to Title IX “in a prominent and conspicuous location on their Internet Web sites” on, or before July 1, 2017. The specific information to be posted is enumerated in California Education Code Section 221.61.
What is Title IX?
Title IX’s “full name” is Title IX of the Education Amendments of 1972. According to the U.S. Department of Education, which has been primarily responsible for its enforcement, “Title IX protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance.”
What the Title IX Regulations Say
As enforced by ED, Title IX applies to “institutions that receive federal financial assistance from ED.”
- Title IX regulations indicate that Title IX applies to recipients of “Federal financial assistance” (34 C.F.R. §106.11).
- “Federal financial assistance” is defined in the regulations as assistance “authorized or extended under a law administered by the Department” (34 C.F.R. §106.2(g)).
- The “Department” is defined as the “Department of Education” (§106.2(b)).