Congress, whose powers are limited to those enumerated in the Constitution, passed Title IX under its power to spend for the general welfare. Consequently, the statute's ban on sex discrimination only applies to those schools that receive federal funding. Sometimes this restriction is mischaracterized one that limits the laws school to public schools. But a recent federal court decision reminds us that private, parochial schools can be federal funding recipients. In that case, schools operated by the Diocese of Greensburg (Pennsylvania) were deemed subject to Title IX by virtue of accepting federal subsidies under the National School Lunch Program. (Though the court did not need to address the question, it also considered the schools federally-funded by virtue of their participation in the E-rate program, which entitles the school to discounts on qualified purchases of classroom technology.)
As the decision in this case points out, courts have uniformly recognized that schools receiving school lunch program subsidies are subject to Title IX. But what made this recent case trickier was that the Diocese of Greensburg operates several schools, only one of which participated in the school lunch program. The plaintiff alleged that the Diocese was liable for Title IX violations that occurred at one of other schools -- one did not participate in the school lunch program. But the court reasoned that Title IX would still apply. Since the Diocese did not organize or operate its schools as separate legal entities, the Diocese itself is the educational institution subject to Title IX by virtue of receiving federal funds for one of its programs. It is the same theory that renders one university department (such as athletics) subject to Title IX based on the federal funding received by another program or department.
This seems like a reasonable interpretation of the Civil Rights Restoration Act, which amended Title IX to impose institution-wide liability. What remains to be seen is whether this interpretation will extend Title IX's application to parochial schools beyond this particular case. That will turn on whether dioceses with several schools typically organize them separately, and if not, whether they could easily reorganize them as separate entities in order to limit liability.
Decision: Russo v. Diocese of Greensburg, 2010 WL 3656579 (W.D. Pa. Sept. 15, 2010)