As Independent Schools throughout the Country Navigate the Rough Seas of the COVID-19 Global Pandemic, Does the Federal Financial Assistance Available to Them through the CARES Act PPP Loan Program an
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As Independent Schools throughout the Country Navigate the Rough Seas of the COVID-19 Global Pandemic, Does the Federal Financial Assistance Available to Them through the CARES Act PPP Loan Program and/or the Economic Injury Disaster Loan Program Provide a Life Ring or an Anchor?
Faced with a world of uncertainty as they huddled at a safe and government mandated social distance with their administrative teams and boards via Zoom video conferences, heads of independent schools throughout the country found themselves prioritizing their respective institution’s needs in hopes of salvaging the remainder of the academic year. How do we educate at a distance? How long is this going to last? What do we do about spring athletics? How do we handle employment issues from faculty and staff? Are we going to be able to host a graduation and, if so, when? Are our families going to be able to continue making their scheduled tuition payments? Should we roll-back the budgeted tuition increase, and if we don’t what is our enrollment going to look like in the fall? Every comment being shared seemed to evoke a litany of new questions which had yet to be considered. Of course, it became immediately apparent that the proverbial elephant in the room was “How are we going to manage our finances throughout this disruption?” And finally, how are we going to weather this unprecedented global event financially and still maintain our reputation as a preeminent PK-12 institution without compromising the unique culture that sets us apart from our peer schools?
Considering the gravity of the answers to these questions in light of the nature of a school’s core mission, it was not a surprise that when the federal government announced that it would be rolling out federal financial assistance (“FFA”) opportunities to small businesses, including private and secondary independent schools under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) through the U.S. Small Business Administration (the “SBA”) in the form of Payment Protection Program (“PPP”) and Economic Injury Disaster Loans (“EIDL”), independent schools, just as retailers, restaurants, law firms, and other small businesses scrambled to get their SBA applications in order and submitted to their local banks seeking a portion of the limited relief available. After all, with so many unanswered questions, even the most conservative schools well into their second century of educating primary and secondary students saw this as a prudent and necessary step toward their survival – and in many cases it likely was.
However unlike other small businesses which took advantage of these resources, because of a variety of regulations previously enacted in federal anti-discrimination legislation, independent schools that received this assistance now find themselves subject to federal regulations, when prior to the acceptance of this relief independent schools were, for the most part, immune from these statutes – including but not limited to Title IX of the Education Amendments Act of 1972 (Title IX), Title VI of the Civil Rights Act of 1964 (Title VI), the Age Discrimination Act of 1975 (the Age Discrimination Act) and Section 504 of the Rehabilitation Act of 1973 (Section 504). In fact, on April 3, 2020 in a FAQ circular about the PPP and EIDL, the SBA went through great lengths to explain that “[r]eceipt of a loan through any SBA program constitutes Federal financial assistance and carries with it the application of certain nondiscrimination obligations,” although it was kind enough to further clarify that “[a]ny legal obligations that [an independent school] incur[s] through [its] receipt of this loan are not permanent, and once the loan is paid or forgiven, those nondiscrimination obligations will no longer apply.” Wow!!! Not surprisingly, this left a number of independent schools wondering if the cost of compliance with these regulations was worth the assistance.
Now I am not suggesting that independent PK-12 schools have not already incorporated the non-discrimination practices that these federal regulations mandate into their day to day operations. In fact, the two heads of independent schools for which I am most familiar have long-standing track records of being socially conscience and ahead of the curve when it comes to addressing social justice issues. They, like James E. Ryan, the former Dean of the Harvard Graduate School of Education and now President of the University of Virginia, who is a leading expert on law and education strive to make their respective institutions “both great and good in all that [they] do.” However the delta between voluntary compliance, while striving to be “both great and good”, and passing an official Title IX compliance review conducted by the Department of Education’s Office for Civil Rights (the “OCR”) are worlds apart.
Not to pile on to independent school administrators and add to the already long list of issues that independent schools are forced to address in the wake of the COVID-19 pandemic, on February 26, 2020, U.S. Secretary of Education Betsy DeVos announced a new Title IX enforcement initiative to combat the troubling rise of sexual assault in K-12 public schools. This initiative includes nationwide Compliance Reviews, Data Quality Reviews and Civil Rights Data Collection (“CRDC”). While this press release specifically targets “public schools”, at the time this initiative was announced most independent schools were not subject to the Title IX regulations and compliance because they were not yet recipients of FFA – which they become once they are in receipt of their recently applied for PPP or EIDL loan funds. Although time will only tell, I see no reason why the OCR would ignore independent schools that are now subject to Title IX when conducting these compliance reviews where the available statistics do not reflect that campus sexual misconduct as a whole, both adult-on-student sexual misconduct, as well as student-on-student sexual misconduct, is any less prevalent in independent schools.
Because of the sheer volume and details of Title IX regulations, not to mention the fact that the education world currently waits with bated breath for the expected (and long overdue) release of the Department of Education’s final version of the proposed changes to current Title IX regulations that were previously circulated for comment in the Notice of Proposed Rulemaking (“NPRM”) for public comment in November, 2018, it is not practical or possible to include all of the information about Title IX and compliance in this article. However, there are a few key takeaways for which independent schools should be mindful and remain vigilant. To provide you with just a preview of what’s involved, some of the topics that independent schools will need to address include, but are not limited to, the fact that:
Title IX compliance cannot be achieved by ordering a program online and unpacking it the day before your campus is reopened to faculty, staff and students; to the contrary, there is a great deal of planning, coordination, training, documentation and notification to be prepared and presented to both students and employees that is required;
A review and revision of many, if not all, of the PK-12 independent school’s faculty handbook/employment manual, student/parent handbook, disciplinary procedures, and other policies will be required, and in some cases new procedures, policies and handbooks will need to be drafted and/or implemented; and
Title IX compliance will require at least one dedicated administrator or staff member to administer and oversee the institution’s Title IX program and, in keeping with best practices, this individual known as the “Title IX Administrator” should not be burdened with other teaching or administrative functions and must be proficient at thorough documentation and record keeping.
Fortunately, this summer, and in the worst case scenario the Fall Semester of the 2020 academic year, will allow those independent schools that have never had to tread through the murky waters of Title IX the time necessary to get ramped up to maintain compliance, as well as to allow those schools that have been previously subject to Title IX before COVID-19 the opportunity to adjust to the newly adopted regulations.
 See Question #5 in Frequently Asked Questions Regarding Participation of Faith-Based Organizations in the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan Program (EIDL) at https://www.sba.gov/document/support--faq-regarding-participation-faith-based-organizations-ppp-eidl
 See January 25, 2019 speech On UVA’s Future by James E. Ryan at https://president.virginia.edu/speeches-writings/on-uvas-future
 See February 26, 2020 U.S. Department of Education press release Secretary DeVos Announces New Civil Rights Initiative to Combat Sexual Assault in K-12 Public Schools at https://www.ed.gov/news/press-releases/secretary-devos-announces-new-civil-rights-initiative-combat-sexual-assault-k-12-public-schools