Private Schools Non-Discrimination & Nondiscriminatory Policy

Starting a nonprofit private school or as is commonly known: 501c3 tax exempt school is very similar to starting a run-of-the-mill nonprofit organization, however, it requires a very detailed narrative description, specific non-discriminatory policy, and detailed Form 1023 schedule B.

I’d like to make the crucial distinction between Nonprofit Private Schools and Charter schools. In this article I’ll explain the differences between charter schools and private schools, and you’ll get familiar with non-discrimination policy requirements of private schools.

These Racial Nondiscriminatory Requirements are absolute must for every nonprofit school applying for tax exemption status, and even existing schools that are already exempt. Failure to comply with these requirements will guarantee denial from the IRS or loss of the exemption status.

What are Charter Schools?

Before we talk about Private Schools, we need to address a completely different class of schools which are called Charter Schools. Created by state law, charter schools are an example of a public/private partnership designed to enhance educational opportunities for public school students. State charter school laws and policies vary widely.

There are differences with respect to the number of schools that may be established and the degree of autonomy they are permitted to exercise. Requirements for charter school applicants and teachers as well as accountability criteria that charter schools must meet also vary from state to state.

Charter schools do not charge tuition and are, for the most part, open enrollment, nondiscriminatory, nonsectarian educational institutions. They are funded primarily by per-pupil allocations from the chartering agency (usually the public school district) equal to the per-pupil allocations made to the public schools.

Charter schools are considered public schools

What is different is that charter schools generally are not operated directly by the public school district but under a separate charter, a contract with a state or local agency that provides them with public funds. The charter sets forth essential conditions for which the school will be held accountable but leaves the implementation of these terms to the charter school’s board of directors.

This frees the charter school from a number of regulations that otherwise apply to public schools and leaves room for innovation and experimentation. Charter Schools There are several different operational models for charter schools. In some states, these schools are under the direct control of the school district. The school district contracts directly for management and educational services. Some states require a separate entity to run the school. For-profit as well as non-profit entities may be eligible to apply for a charter. State law may or may not require that the chartering organization be tax exempt under IRC 501c3.

Exemption of Charter schools Under IRC 501c3

For-profit businesses operating charter schools are not eligible for exemption under IRC 501c3. If the public school district is an integral part of the municipal government, the public school and any charter school it operates will not qualify for exemption under IRC 501c3, as it has no separate existence from the municipal government. The income of a municipal government is exempt from federal income tax under the theory of implied intergovernmental immunity. If the school district is separately organized and satisfies the requirements of Rev. Rul. 60-384, 1960-2 C.B. 172, the district may be recognized under IRC 501c3 provided it otherwise meets the requirements for exemption.

What are nonprofit Private Schools & History of Discrimination

While charter schools are somewhat new, private schools have long been of concern to the IRS. In 1965, The IRS stopped issuing rulings to private schools to consider the effect of racial discrimination on their exempt status. Following a lengthy study, The IRS concluded, in 1967, that racially discriminatory private schools whose operations involved state action constituting a violation of the Constitution or federal laws were not entitled to tax-exempt status under IRC 501c3. In 1970, The IRS announced that, regardless of state involvement, racially discriminatory private schools did not qualify for exemption under IRC 501c3. Only schools having a racially nondiscriminatory policy would be considered for tax exemption.

In arriving at the position that racially discriminatory private schools are not exempt, The IRS relied on a clearly established federal policy against racial discrimination in education. This policy was first established by the Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954) and served as a precursor to the Civil Rights Act of 1964. Much litigation followed.

In 1970, a class action was filed to prevent The IRS from recognizing exemption under IRC 501c3 and from allowing IRC 170 deductions for contributions to private schools in Mississippi that discriminated against black students. In Green v. Connally, 330 F. Supp. 1150 (D. D.C. 1971), aff’d sub nom., Coit v. Green, 404 U.S. 997 (1971), and in the revised injunction orders issued on May 5 and June 2, 1980, the court placed The IRS under a permanent injunction (still in effect) to deny tax exemption to racially discriminatory private schools in Mississippi.

These so-called “Paragraph (1) Schools” must demonstrate that they have adopted and published a nondiscriminatory policy. They must also provide certain statistical and other information to The IRS to establish that they are operated in a nondiscriminatory manner. Most importantly, they must overcome an inference of discrimination against blacks. The injunction states:

The existence of conditions set forth in paragraph (l) herein raises an inference of present discrimination against blacks. Such inference may be overcome by evidence which clearly and convincingly reveals objective acts and declarations establishing that such is not caused by such school’s policies and practices.

Such evidence might include, but is not limited to:

• proof of active and vigorous recruitment programs to secure black students or teachers, including students’ grants in aid; or proof of meaningful public advertisements stressing the school’s open admissions policy;
• or proof of meaningful communication between the school and black groups and black leaders within the community concerning the school’s nondiscriminatory policies, and any other similar evidence calculated to show that the doors of the private school and all facilities and programs therein are indeed open to students or teachers of both the black and white races upon the same standard of admission or employment.

The injunction in Green applies only to Mississippi private schools.

The most significant judicial precedent in this area is Bob Jones University v. United States, 461 U.S. 574 (1983). This case specifically involved IRC 501c3 and discrimination against black students. In this case, the Supreme Court emphatically affirmed The IRS’s position on racially discriminatory private schools.

The Court stated that racial discrimination in education is contrary to public policy, and racially discriminatory educational institutions do not confer a benefit on the public that is within the meaning of “charitable” as that term is used in IRC 501c3 or within the congressional intent underlying IRC 170 or 501c3. The Court cited an unbroken line of cases as well as numerous federal legislative enactments and Executive Branch Executive Orders for its position that Bob Jones University violated a fundamental public policy.

Determination of discrimination by Private Schools or lack thereof

In determining whether schools are racially nondiscriminatory, The IRS looks to cases such as Bob Jones University, as well Norwood v. Harrison, 382 F. Supp. 921 (N.D. Miss. 1974), on remand from the Supreme Court, 413 U.S. 455 (1973); Brumfield v. Dodd, 425 F. Supp. 528 (E.D. La. 1976); and Prince Edward School Foundation v. United States, 478 F. Supp. 107 (D. D.C. 1979), aff’d D.C. Cir. 6/30/80, cert. denied, 450 U.S. 944 (1981).

In reaching its conclusion, the Supreme Court acknowledged the sensitivity with which public policy matters are imbued:

• We are bound to approach these questions with full awareness that determinations of public benefit and public policy are sensitive matters with serious implications for the institutions affected; a declaration that a given institution is not “charitable” should be made only where there can be no doubt that the activity involved is contrary to a fundamental public policy. Bob Jones University, 461 U.S. at 592.
• In emphasizing the limited circumstances in which The IRS and the courts may consider the effect of public policy, the Court stated: “We emphasize, however, that these sensitive determinations should be made only where there is no doubt that the organization’s activities violate fundamental public policy.” Bob Jones University, 461 U.S. at 598.

In the mid-1980’s The IRS extended the “inference and rebuttal” approach beyond Mississippi. The IRS determined the clear intent of Rev. Proc. 75-50 was that the adoption and publication of a private school nondiscriminatory policy is a minimum requirement for private schools, and clear and specific factual evidence must be provided to affirmatively show that the school operates in a racially nondiscriminatory manner.

Where a private school has a history of racial discrimination it must show, by objective evidence, that the lack of minority students is due to factors other than a continuation of its past policies. Facts, which the courts and The IRS have indicated, are likely to be relevant in attempting to establish nondiscriminatory policies include, but are not limited to, active and vigorous recruitment of minority students and teachers, financial assistance to minority students, and effective communication of the policy to the minority population. See G.C.M.’s 39524 and 39525 (July 1, 1986) for a detailed description of the extension of the “inference and rebuttal” approach.

The IRS approach was affirmed in Calhoun Academy v. Commissioner, 94 T.C. 284 (1990). There, the Tax Court held that a private school failed to show that it was operated in good faith in accordance with a nondiscriminatory policy toward black students. The private school was formed at the time of public school desegregation and never enrolled a black student or employed a black teacher. The court concluded that the school did not qualify for exemption under IRC 501c3.

Although public policy in the area of racial discrimination has evolved through the past few decades, not all issues have been settled, and new questions have been raised regarding discrimination against women and various ethnic groups. In light of the Supreme Court admonition in Bob Jones University, supra, the role of the Internal Revenue Service in the public policy arena remains somewhat limited. The IRS may recognize the effect of public policy on exemption only in those situations where there is no doubt as to the fundamental public policy at issue.

Having recognized the fundamental public policy against racial discrimination, The IRS, in Rev. Rul. 71-447, 1971-2 C.B. 230, defined a racially nondiscriminatory requirement standard. The standard requires that a school admit the students of any race to all rights, privileges, programs, and activities generally accorded or made available to students at the school and that the school does not discriminate on the basis of race in the administration of its educational policies, scholarship programs, loan programs, and athletic or other school administered programs.

Revenue Procedure 75-50 guidelines for racially nondiscriminatory policy

Rev. Proc. 75-50 sets forth guidelines and record-keeping requirements for determining whether private schools that are applying for recognition of exemption under IRC 501c3, or wish to retain exemption under IRC 501c3, have a racially nondiscriminatory policy as to students. A decision as to whether a school is following a racially nondiscriminatory policy will be made on the basis of all the facts and circumstances. Schools subject to the Court Order in Green, supra, must satisfy additional requirements discussed in the next section.

A. Organizational Requirements

Section 4.01 of Rev. Proc. 75-50 requires that a school include a statement in its charter, nonprofit bylaws, or other governing instrument, or in a resolution of its governing body, that it has adopted a racially nondiscriminatory policy as to students and does not discriminate against applicants and students on the basis of race, color, and national or ethnic origin.

(1) The resolution must be written.

(2) The resolution may be stronger, but not weaker, than the example in section 3.01 of the Rev. Proc. The wording does not have to be exactly as stated in the Rev. Proc.

(3) The resolution must be adopted by a majority of the governing body.

(4) If the resolution is not in the charter, bylaws, or other governing instrument, an approved copy of the board minutes approving the resolution may be submitted to show that the policy has been adopted.

B. Publication Requirements

Section 4.03 requires the school to make its racially nondiscriminatory policy known to all segments of the general community served by the school. To satisfy this requirement, schools may publish a Notice of Nondiscriminatory Policy as to Students in a newspaper of general circulation that serves all racial segments of the community, or advertise the policy through the broadcast media. The school must also publish its nondiscriminatory policy in all brochures and catalogs dealing with admissions, programs, and scholarships.

The Notice of Nondiscriminatory Policy for Private Schools

• Must be published at least once annually during the period of solicitation for students or, in the absence of a solicitation program, during the school’s registration period.
• If the notice is published in a newspaper of general circulation, it must appear in a section that will be read by prospective students and their families. The notice should be published in the same newspaper(s) in which the school advertises to attract students.
• The notice must occupy at least three column inches (vertically or horizontally) and be captioned in at least 12 point bold face type as a Notice of Nondiscriminatory Policy As To Students. The text must be printed in at least 8 point type. There may be some variations from the example in Rev. Proc. 75-50 as to print due to the newspaper’s available font.
• The notice may be combined with an advertisement for enrollment. However, the notice must be captioned Notice of Nondiscriminatory Policy As To Students in at least 12 point bold face type, be at least three column inches, and printed in at least 8 point type. The notice within the advertisement should meet the requirements of section 4.03 as if it were standing alone.
• The school should be identified in the notice. If the name of the school appearing in its Articles of Incorporation and the name under which it operates are different, both should be identified in the notice.

Publicity of Policy

Every school must include a statement of its racially nondiscriminatory policy in all of its brochures and catalogues dealing with student admissions, programs, and scholarships, as well as in other written advertising recruiting students. This statement should read as follows: The M school admits students of any race, color, and national or ethnic origin.

The new Rev. Proc. 2019-22 Nondiscriminatory Policy for Private Schools

Rev. Proc. 2019-22 modifies Rev. Proc. 75-50 by adding Subsection 1(c) to Section 4.03, which provides for a third way of making a racially nondiscriminatory policy known to all segments of the general community served by the school. In addition to publishing the policy in a suitable newspaper or publicizing the policy using broadcast media, Subsection 1(c) provides:

The school may display a notice of its racially nondiscriminatory policy on its primary publicly accessible Internet homepage at all times during its taxable year (excluding temporary outages due to website maintenance or technical problems) in a manner reasonably expected to be noticed by visitors to the homepage. The following notice, which is identical to the notice that may be used to satisfy the publicity requirement using a newspaper of general circulation that serves all racial segments of the community, is acceptable:

A publicly accessible homepage is one that does not require a visitor to input information, such as an email address or a username and password, to access the homepage. It certainly should not be password protected or behind another screen.

Factors to be considered in determining whether a notice is reasonably expected to be noticed by visitors to the homepage include:

• the size, color, and graphic treatment of the notice in relation to other parts of the homepage,
• whether the notice is unavoidable,
• whether other parts of the homepage distract attention from the notice, and
• whether the notice is visible without a visitor having to do anything other than simple scrolling on the homepage.

A link on the homepage to another page where the notice appears, or a notice that appears in a carousel or only by selecting a drop-down or by hover (mouse-over) is not acceptable.

If a school does not have its own website, but it has web pages contained in a website, the school must display a notice of its racially nondiscriminatory policy on its primary landing page within the website in a manner that satisfies all other requirements of this subsection 1(c) to use this publication method.

Exceptions to Nondiscriminatory Policy Notice Requirement

While it is The IRS practice to encourage all private schools to publish the Notice of Discriminatory Policy as to Students, Rev. Proc. 75-50, Section
4.032 provides the following exceptions:

Church-related Schools

If for the preceding three years at least 75% of its students are members of the sponsoring religious denomination or unit, the school may make its racially nondiscriminatory policy known in church newsletters or newspapers the religious denomination utilizes in the communities from which the students are drawn. However, if the school advertises in newspapers of general circulation during its enrollment or registration period, it must also publish its notice of racially nondiscriminatory policy in the same newspapers.

Schools Drawing Students From a Large Geographic Area

If the school draws a substantial percentage of its students nationwide, worldwide, or from one or more large geographic areas within the United States, and it provides evidence that it follows a racially nondiscriminatory policy, it may satisfy the publicity requirement by ( i) including a statement of nondiscriminatory policy in all its brochures and catalogues dealing with student admissions, programs, and scholarships, and (ii) including reference to its racially nondiscriminatory policy in other written advertisements informing prospective students of its program.

Such a school may demonstrate that it follows a racially nondiscriminatory policy by showing that it currently enrolls a meaningful number of racial minority students, or that its promotional activities and recruiting efforts are reasonably designed to inform students of all racial segments in the general communities within the area of the availability of the school.

Clearly Operates a School on a Racially Nondiscriminatory Basis

Based upon the facts and circumstances, a school that clearly operates on a racially nondiscriminatory basis may satisfy the publicity requirements by: (i) complying with section 4.02 of Rev. Proc. 75-50; (ii) by showing that it currently enrolls students of racial minority groups in meaningful numbers; and, (iii) by showing the school’s promotional activities and recruiting efforts are reasonably designed to inform students of all racial segments within the area of the availability of the school.

Foreign Schools

Foreign schools are generally subject to the requirements of Rev. Proc. 75-50. Such schools may be excepted from compliance with certain parts of the procedure if they can show that compliance with that part of the procedure would be ( i) harmful, or (ii) illegal under the laws of the country in which they are located, or (iii) impossible because local law forbids maintenance or collection of information necessary to comply. See
G.C.M. 37867 (February 27, 1979).

For example: A school may be excused from certain record-keeping requirements by showing that the prevailing law prohibits collection and/or maintenance of data regarding race, or other ethnic categorization of students and/or faculty.

What are Public Schools and overlaps with Charter Schools

A public school is defined as one supported primarily by the government. Only private schools are subject to Rev. Proc. 75-50. Assistance in determining whether a given institution is a private or public school can be found in section 401(c) of the Civil Rights Act of 1964, 42 U.S.C. 2000c(c), which provides that the term “public school” means an elementary or secondary educational institution, provided that such public school is operated by a state, subdivision of a state, or governmental agency within a state, or operated wholly or predominantly from or through the use of governmental funds or property derived from a governmental source.

Charter schools that are treated as public schools under state legislation are not subject to the requirements of Rev. Proc. 75-50 as long as they are operating under a contract with a government agency and are required to operate in a nondiscriminatory manner.

Record-keeping Requirements for schools

Section 5 of the Rev. Proc. describes the information that must be submitted when applying for tax-exempt status. Section 7 explains that certain records must be maintained for a minimum period of three years beginning the year after compilation or acquisition. Such annual records include:

• Racial composition of the student body, faculty, and staff by academic year.
• Records to document that scholarships and financial assistance are awarded on a racially nondiscriminatory basis.
• Copies of all brochures, catalogues, and advertising dealing with student admissions, programs, and scholarships.
• Copies of all materials used by or on behalf of the school to solicit contributions.

Mississippi Schools

The court in Green, supra, ordered specific guidelines and record-keeping requirements for Mississippi private schools. The court’s order varies from the guidelines and record-keeping requirements set forth in Rev. Proc. 75-50 in that it contains certain additional requirements. Specifically, the injunction, as revised, requires the following:

• The school must adopt a policy and publish the fact that it has a racially nondiscriminatory policy as to students, meaning that it admits the students of any race to all the rights, privileges, programs and activities generally accorded or made available to students at that school. It must state specifically that it does not discriminate on the basis of race in the administration of educational policies, applications for admission, of scholarship and loan programs, and athletic and extra curricular programs.
• The school must publicize this policy in a manner that is intended and reasonably effective to bring it to the attention of persons of student age (and their families) who are of minority groups, including all nonwhites. Specifically, but not exclusively, the school must:

1. If it chooses to publicize this policy in printed notices, caption such notices in such a way to call attention to the notice, for example bold face headings, and to call attention to its nature as a notice of racially nondiscriminatory policy as to students; such printed notices of nondiscriminatory policy must be published every calendar quarter, including during the period of the school’s solicitation for students for a period of three years in a newspaper of general circulation serving the area from which the school draws its student body; if the school chooses to publicize its policy through radio advertisements, the advertisements must be broadcast with sufficient frequency to be reasonably designed to reach the intended audience in the minority community.  A school employing this method of publicizing its nondiscriminatory policy must supply The IRS with the date and times of transmission; transcript of the announcement; and, both the number of times the message was broadcast on a particular day and the number of times it was broadcast during the year;
2.  Provide reference to its nondiscriminatory policy in its brochures and catalogues and also in any printed advertising which it uses as a means of informing applicants of its programs;
3. Comply with all the other requirements of Rev. Proc. 75-50;
4. Certify that it has made no statement and taken no action, qualifying or negating its published statements of nondiscriminatory policy as to students.

The IRS is also enjoined from approving or continuing the tax-exempt status under IRC 501c3 unless such private school has supplied The IRS on an annual basis for a period of three years with the information needed for The IRS to determine whether the school has actually established a policy of nondiscrimination. The information required is:

(A) Racial composition, as of the pending academic year, and projected, so far as may be feasible, for the subsequent academic year, of ­

(i) Student body,

(ii) Applicants for admissions,

(iii) Faculty and administrative staff.

(B) Amounts of scholarship and loan funds, if any, awarded to students enrolled or seeking admission, and the racial composition of students who have received such awards. If any tuition due the school has been waived, the number of students, by race, granted such waiver during each school year must also be provided.

The yearly compilations of data should be supplied to the Internal Revenue Service, P.O. Box 2508, Cincinnati, Ohio 45201, Attn: Chief, EP/EO Division, by April 1 each year. Copies of the quarterly notices of nondiscriminatory policy must be submitted on an annual basis with the other information required by the court order. The beginning of the three year quarterly publication requirement, for the purposes of compliance with the 1980 Green orders, is the date of the ruling recognizing tax- exempt status. Initially, reports were sent to the Atlanta Key District, but upon centralization of the determination process a change was made to send the reports to Cincinnati.

Filing Requirements for Private Schools

Every organization described in IRC 501c3 must file an annual information return [Form 990, Return of Organization Exempt from Income Tax, or Form 990-EZ, Short Form Return of Organization Exempt From Income Tax] if its gross receipts are normally over $25,000 and it is not otherwise excepted from this requirement. Most schools fall in this category and must file. Excepted from the filing requirement are the following:

A. Church Schools

Churches, a convention or association of churches, or an integrated auxiliary of a church are excepted from the annual return filing requirement. A school below college level “affiliated” with a church or operated by a religious order falls within this exception and would not be required to file the annual information return. To be considered “affiliated,” a school must be controlled by or associated with a church or a convention or associations of churches. For example, if a majority of the school’s officers or directors is appointed by a specific church, the school would be considered controlled by that church. See Rev. Proc. 86-23, 1986­ 1 C.B. 564 and Reg. 1.6033-2(h) for additional information.

B. Governmental Units

Rev. Proc. 95-48, 1995-2 C.B. 418, provides relief from the annual filing requirement for organizations described as “governmental units” or “affiliates of a governmental unit.” An “affiliate of a governmental unit” must have a ruling from The IRS that (1) its income, derived from activities constituting the basis for its exemption under IRC 501(c), is excluded from gross income under IRC 115; (ii) be entitled to receive contributions under IRC 170(c)(1), on the basis that contributions to it are “for the use of” governmental units; or (iii) be a wholly owned instrumentality of a state or political subdivision for employment tax purposes.

An organization may be treated as an “affiliate of a governmental unit” in the absence of an IRS ruling if­

• It is either “operated, supervised, or controlled by” governmental units, or by organizations that are affiliates of governmental units, within the meaning of Reg. 1.509(a)-4(g)(1)(i). This relationship is established if the majority of the officers, directors, or trustees are appointed or elected by the governing body.
• It possesses two or more of the affiliation factors listed in section 4.03 of Rev. Proc. 95-48; and
• Its filing of Form 990 is not otherwise necessary to the efficient administration of the Internal Revenue Code.

Generally, schools that request to be excused from the annual filing requirement as “affiliates of a governmental unit” are “public school districts.” Public school districts do not have to file Forms 990 because they are under the control of a governmental unit and the school board is elected per local statute. Most charter schools do not satisfy the requirements of Rev. Proc. 95-48 because their boards are not publicly elected or appointed by the governing body.

C. Form 5578, Annual Certification of Racial Nondiscrimination for a Private School Exempt From Federal Income Tax

If an organization that operates, supervises, or controls a private school(s) [including a charter school] is required to file Form 990 or Form 990-EZ, it must certify that it is nondiscriminatory on Schedule A (Form 990). If an organization is excused from filing Form 990, Form 5578 must be submitted to the Ogden Service Center. This form is used by exempt organizations that do not file Form 990.

D. Other Filing Requirements

Exempt schools must also file other returns and reports that may include, but are not limited to:

(1) Form 990-T, Exempt Organization Business Income Tax Return

Schools engaging in unrelated trade or business activities that result in gross income of $1,000 or more must file a tax return on Form 990-T. The instructions on the return and the discussion in Publication 598, Tax on Unrelated Business Income of Exempt Organizations, provide assistance in determining when such a return needs to be filed and what information must be included.

(2) Employment Tax Forms

Publication 15, Circular E, Employer’s Tax Guide, summarizes the responsibilities of an employer. Publication 15-A, Employer’s Supplemental
Tax Guide; and Form 941, Employer’s Quarterly Federal Tax Return, provide the information needed by schools to meet their employment tax obligations.

(3) Form 8282, Donee Information Return

If a school receives a contribution for which a charitable deduction is allowed, and sells, exchanges, or otherwise disposes of the property within two years of its receipt, the school must file Form 8282.

(4) Information Provided to Donors

An exempt school must give a donor a disclosure statement for a quid pro quo contribution over $75. The donor cannot deduct a charitable contribution of $250 or more unless the donor has a written acknowledgment from the school.

(5) Form W-2G – Certain Gambling Winnings

Certain gaming transactions require the filing of Form W-2G and Form 1096. This may apply to a school if it conducts raffles or sells pull-tabs or lottery tickets to raise funds.

NOTE: If you’d like to receive the following organizing documents:

• Nonprofit Articles of Incorporation,
• Nonprofit Bylaws,
• Nonprofit Conflict of Interest Policy,
• Conflict of Interest Policy Acknowledgment,
• Form 1023 Attachment with all the answers,
• Form 1023 Expedite Letter template,
• and Donor Contribution Form

in Microsoft Word Document format, please consider making a donation and you’ll get to download them immediately. Not only they're worth well over $1000 in value, they will save you weeks of copy pasting and formatting as they are ready to go templates which only need changing names and addresses.