Independent school associations are taking no risks to protect the systemic advantages of their customer base, even if it opens them up to charges of DEIJ hypocrisy and a token appreciation of civil rights laws. Last week they breathed a collective sigh of relief as the US Court of Appeal in the 4th Circuit covering states like Virginia and Maryland overturned a lower court ruling against a private school concerning the applicability of federal laws on sexual discrimination to non-profits. It seems quite likely that this will be appealed, and other Court of Appeal circuits may not rule similarly on other cases. Many of these cases, involving sexual harassment, assault or discrimination, are against private schools. The recent 4th Circuit Court of Appeal ruling overturns this but the general societal thrust, in our reading and as I argue below, is just like with same-sex marriage, a recognition that this is a protection or right that should apply universally without exclusions for specific groups in the conduct of their businesses. Many private schools access public funds through PD grants, bond subsidies, leases, or voucher programs, and this exemption will start to look very anachronistic for the elite few who do not.

In any case, independent school associations are not taking any risks and have prepared a backup strategy with some strange bedfellows. But was I reading this correctly? Are NAIS (the National Association of Independent Schools) and all its partner associations allying themselves with ten Republican lawmakers, and not just any lawmakers, but the allegedly anti-woke, book-banning, and anti-transgender Republicans of Florida? Shakespeare’s The Tempest was sounding off in the back of my head: “Misery makes for strange bedfellows” but what awful monster had appeared in the storm? Have we just come across a truly unholy-looking alliance in the works? NAIS and its partner associations are “endorsing” a bill introduced by two Florida Republicans, Senator Rubio (R-FL) and Congressman Steube (R-FL), and co-sponsored by eight other Republican Senators and lawmakers, and no Democrats. The bill NAIS is endorsing is quite innocuously called the Safeguarding Charities Act, but what it is really safeguarding seems at the very least ironic, and more like hypocritical.

Letter from NAIS called “Endorsement Letter for Rubio Bill 011024

What is being “safeguarded” is a two-tier system of responsibility on race and sex discrimination, one for independent schools as non-profits, and another for everyone else: (a) independence from federal civil rights standards and compliance concerning sex discrimination, harassment, and assault accepted by the rest of education including public schools and colleges, and (b) the flexibility also to avoid having the burden of applying civil rights laws to racial discrimination and segregation issues. But wait, hasn’t NAIS been leading the movement against systemic discrimination and racism, particularly through unseen legally structured inequity through its People of Color Conference? 

And why now? In a nutshell, because recent lower court decisions against private schools relying on civil rights laws have favored victims of sexual harassment and discrimination, but in the process have diminished non-profit exemption from federal civil rights jurisdiction. District courts are requiring civil rights compliance from non-profits by considering their exemption from paying taxes as a form of federal subsidy or economic benefit. 

Association leaders have cast this as a life and death struggle for independent schools, threatening “the very existence of independent schools” according to NAIS’ amicus brief in Buettner-Hartsoe (page 15).  But is the very foundation of their historic existence, with accountability principally to their donors and customers, so endangered by an additional level of federal discrimination accountability required of all other educational institutions? Schools are not losing wholesale their tax-exempt status (just adding oversight) and there is no loss of the tax-deductibility of donations which provides cheap funding for schools. Those could be existential impacts if they were threatened as no longer applying. And there are no threats of curriculum oversight, teacher professional qualifications, or union requirements. Associations are focused on three Acts of Congress where the regulatory burdens seem to weigh in the event their tax-exempt status is considered federal financial assistance (see page 13 Section D of the NAIS amicus brief): Title 9, the 1972 law prohibiting discrimination and harassment based on sex in schools; Title 6, the 1964 Civil Rights Act prohibiting discrimination based on race, color or national origin in schools; and The Rehabilitation Act, the 1974 Act on participation in the employment for people with disabilities. Fifty years on from these highly accepted practices, are we to think that independent schools have not moved a long way toward their acceptance? In most states, private schools are already subject to child abuse laws as mandated reporters and have required training.

Is it possible that the implications may be worse for the associations and the ideological positions they have staked out for themselves, rather than the schools? For NAIS this might include restructuring and renaming its flagship People of Color Conference from its racially segregated focus of affinity groups to make them more inclusive; in public schools, such racially segregated affinity groups are illegal (see Biden DOJ guidance on Title 6). I have written before about this and the conundrum of excluding people to enable inclusion and belonging for others (Should the People of Color Conference be for people of Color?).  For the first time in 27 years, even the Federal government changed in March 2024 how they categorize people, because race for many is a strange classification system without a choice of ethnicity as an alternative. And are not the aims of intersectionality and critical race theory, the underlying philosophies of POCC, with origins in legal analysis, to combat unequal and systemic unseen prejudice and treatment under the law? 

In almost every other country in the world, including many with independent schools like the UK, Australia, and across the Western world, all of education is under government oversight. In the US, independent schools have managed to hide in the gap that exists between federal and state regulatory frameworks. But this seems primed to bulldoze the gap. 

So, what is really at stake for schools themselves and what are the arguments? The first argument is that this would impose additional cost burdens that are unaffordable for small schools: this includes hiring and training a Title 9 administrator and complying with DOJ guidance on processes. Independent schools are used to a host of health, wellness, and safety requirements from local and federal governance: the pandemic showed just how deep this oversight is, as are mandatory reporting laws. NAIS and other associations in their amici briefs supporting private school appeals claim the one schoolhouse-type small school with less than 50 faculty or 100 students would be harshly affected. We find this argument particularly unconvincing when private schooling is a choice, pricing is in their hands, and all public and charter schools with typically less per-student funding can comply. And by the way, these small schools are the ones most likely to accept public funds, thereby bringing them under the federal umbrella and making the argument even more moot.

The second argument is that private schools have developed their own cultural policies for their communities. What is the extra public purpose of protecting the culture of a private school any more than that of a public school in the realm of discrimination management? NAIS argues a whole host of vital cultural practices would be endangered such as “keeping allegations confidential”,  not being able to separate the accused and accuser in small schools, and other loss of flexibility (see page 19 of the NAIS amicus brief). But do private schools hold high ground arguing for these continued advantages relative to public schools? Do they come before the courts with “clean hands” and a good track record of self-regulation on sex harassment and discrimination cases? In a word, No. The actions of boards and administrators have often been proven through litigation as taken to protect themselves rather than the students. The internet is full of such well-reported stories across the nation.

The law is a living, breathing mirror of societal thinking on justice. Courts over time elevate and clarify rights and responsibilities that were untested, overlooked, taken for granted, ambiguous, or perhaps even unjustly proscribed. With Black Lives Matter and the #metoo movement, sexual discrimination or assault and racial prejudice have come to an even greater level of scrutiny and need for clarity. Same-sex marriage is another one of those issues that Obergefell finally guaranteed through its interpretation of the due process clause and the equal protection clause of the 14th Amendment. What followed were First Amendment challenges (still undecided) to recognizing same-sex marriages by bakers, cake-makers, florists, and web designers.

No one, and certainly not the schools or associations, would argue that sex or racial discrimination is a good thing, so why are independent school and religious school associations in the challenging camp regarding enforcement mechanisms for practices abhorred by society at large? Are there any First Amendment challenges? Unlike the cake-makers and florists who have at least a religious objection for swimming against the tide, the association lawyers do not even rely on any First Amendment or religious impositions: nowhere do they say that it would limit their ability to practice their faith or deliver the content or curriculum of an education they choose to offer. And yet, it would somehow threaten “the very existence of independent schools” according to NAIS’ amicus brief in Buettner-Hartsoe (page 15). It’s not even a slippery slope situation because most civil rights laws including Title 9 in any case carve out an exemption for religious schools. The Supreme Court has upheld religious school exemptions to employment law and Title 9 specifically provides religious and other carve-outs. 

The final and third main argument is principally contract-based, in that there has been no interpretation of the civil rights laws as contractually applicable to non-profit schools in the last 50 years: it has never been the understanding of non-profits or schools that tax-exempt status constitutes federal assistance, nor did they understand that tax-exemption is an economic benefit, like a grant or a subsidy, bringing them into the domain of federal civil rights enforcement. Are we seriously claiming we were not aware of the economic benefit of tax exemption (we did apply for 501c3 status) or that we are always subject to federal responsibilities (we comply annually with Form 990 certifications)? Schools, like florists or cake-makers (with or without religious qualms), get the benefits of the tax expenditures used to create the commercial environment we need to operate a business: this includes everything from roads our customers come on, the digital highways enabled and policed by the government, the tax-deductibility of donations we receive that are therefore easier for donors, and regulations that protect our intellectual property and safety. Do we not know that we are getting an economic benefit by not paying the taxes that create and support the commercial environment we need? That is the foundational context of not only our contractual capacity but also our civic capacity. What then are the boundaries of these contractual and civic capacities for us as non-profits?

In conclusion, there is some serious imbalance in the proportionality of the effects argued and their supposed existential impacts, the civic contexts offered, and the justifications for special treatment. Are there not some civic rights that are important enough to be recognized as worthy of equal treatment and responsibility for all of society including all individuals, corporations, and organizations? What gives us as wealthy, predominantly white, institutions the somewhat systemically unfair advantage of a privileged equality enforcement carve-out on sex and race discrimination or harassment? History? It’s time for NAIS to make up its mind about whether it really believes in equality, fairness, and social justice, or whether it only applies when it is convenient and does not limit the choice and flexibility of its schools. Actions speak louder than words and the DEI community that NAIS seemingly celebrates is watching. Ultimately, this is a question of community responsibility and public purpose. We need to be more community-dependent schools, and less “independent school communities.” How authentically are we at the public purpose table compared to our global peers? Look across the Atlantic, where iconic independent schools (like Eton) with longer histories than American schools are partnering with charter schools, sharing teacher resources, school facilities, student courses, and writing annual reports detailing their actual public purpose expenditures.  And it might be worth remembering what happened to the Progressive Education Association, supported by many wealthy independent school advocates, and for that matter, all other organizations that failed to develop a core and coherent belief system: a schism developed in the 1930’s between the learner-centered and the social justice camps that led to its collapse in 1955.  The future is rarely “safeguarded”.

Sanje Ratnavale holds a law degree (Christ Church, Oxford University) but is not qualified to practice law in the U.S. nor is he indeed providing legal advice. Please obtain your own legal advice if you consider you need it after reading this article.