Exempt but Not Immune: Why the Section 501(c)(3) Tax Exemption Amounts to Federal Financial Assistance and Demands that Private Schools Comply with Title IX

By ELLEN BART. Full Text.

Title IX of the Education Amendments Act of 1972 (Title IX) prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance and ensures that federal funds are not used to support discriminatory practices. Independent, non-public, educational institutions try to escape compliance with Title IX, claiming they do not receive federal financial assistance and are not subject to Title IX. While they may not receive a direct federal grant or loan, many of these independent schools are organized as nonprofits and are exempt from federal income taxes pursuant to section 501(c)(3) of the Internal Revenue Code. As a result, these schools save significant amounts of money that they would otherwise have to spend on taxes, while diminishing the federal government’s tax revenue. There is an open question as to whether an educational institution’s 501(c)(3) tax-exempt status constitutes federal financial assistance and triggers Title IX liability. In July 2022, two federal district courts found that independent schools were subject to Title IX based on their 501(c)(3) status. However, in April 2024, the Fourth Circuit became the first federal appellate court to consider this question and found that a school’s tax-exempt status does not constitute “Federal financial assistance” and thus does not make it subject to Title IX. This Note argues that educational institutions that maintain tax-exempt status do in fact receive federal financial assistance by virtue of the tax benefit they receive and must comply with Title IX. After presenting the split in opinion on whether tax-exempt status triggers liability under Title IX, this Note conducts a statutory analysis of “Federal financial assistance.” This Note first considers the text of the statute, applying various tools of statutory analysis to conclude that the plain text of Title IX extends to tax-exempt organizations, including tax-exempt schools. This Note also uses legislative history to further discern congressional intent and demonstrate that Congress intended Title IX to be afforded a broad scope and should not be limited to exclude tax-exempt status.