Colleges that accept federal funds cannot retaliate against anyone who reports unlawful discrimination, the U.S. Department of Education reminded institutions last week in a letter that legal experts are calling curious for its timing and its reference to “monetary relief” in resolving investigations.
“Individuals should be commended when they raise concerns about compliance with the federal civil-rights laws, not punished for doing so,” Seth M. Galanter, the department’s acting assistant secretary for civil rights, wrote in the “Dear Colleague” letter, which was released on Wednesday. Discrimination often comes to light, he said, only when people are not afraid to make a complaint against an institution or take part in an investigation.
Already legally established, that dimension of civil-rights law was affirmed in 2005, when the Supreme Court ruled that a high-school girls’ basketball coach was protected from retaliation for complaining about discrimination against his team.
Still, the department’s Office for Civil Rights is apparently less than impressed with compliance. “A significant portion of the complaints filed with OCR in recent years have included retaliation claims,” the letter says. In recent weeks, complaints about sexual assault and institutional response at the University of North Carolina at Chapel Hill and Occidental College have also alleged retaliation.
Although lawyers have warned campus officials against retaliation for years, that message may not have reached everyone, said Ann H. Franke, a legal consultant to colleges. “The Title IX coordinators and human-resources professionals and general counsels understand the prohibitions against retaliation,” she said. “What I doubt is deeper within the institution there’s the same understanding.”
A defensive response to complaints of discrimination is natural, Ms. Franke said. “There’s the human impulse to lash back,” she said. “People need reminders and training to understand and know how to resist.”
At the same time, Ms. Franke said, only complaints made in good faith have legal protection, a point the letter does not specify. Instances to the contrary are rare but do happen, she said. “You can’t misuse a legal process and then expect the full protection from retaliation.”
Last week’s guidance applies to Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972—civil-rights statutes that prohibit discrimination on the basis of race, national origin, and sex—as well as federal law protecting individuals with disabilities.
Issued after the departure of Russlynn H. Ali, the former assistant secretary for civil rights who vowed to step up enforcement, the letter promises to “continue to vigorously enforce this prohibition against retaliation.”
Gina M. Smith, a legal adviser to colleges on sexual misconduct, welcomed that message, expecting it to prompt colleges to examine the issue of retaliation more closely. “This is pushing us to be a little more nuanced about what it looks like in real time,” she said. Campus officials should ask, she added, “How robust is our training about the prohibition against retaliation and ways to avoid it?”
‘Monetary Relief’
While the Education Department’s letter clarifies expectations for compliance, it raises questions about how officials will resolve investigations.
Retaliation, the letter says, includes “intimidating, threatening, coercing, or in any way discriminating against” students or staff members who have filed a complaint or participated in an investigation.
Such investigations usually result in “resolution agreements” between a college and the department, whereby administrators promise to take certain measures to prevent further violations. As part of a recent agreement to resolve a complaint alleging sex discrimination, Yale University updated its grievance process, for example, and established a sexual-misconduct committee. If colleges don’t agree to such steps, the Education Department can revoke their eligibility for federal funds.
In bullet points that could guide administrators in their compliance efforts, students in filing complaints, or plaintiffs’ lawyers in suing colleges, the Office for Civil Rights offers three examples of how to ensure protection against retaliation. One is training staff members, about both the prohibition and how to avoid engaging in retaliation; the second is a “communications strategy” to convey that message continually, including in policies and procedures; and the third is an “outreach strategy” to reassure the public that the institution will comply with the prohibition on retaliation.
To resolve complaints in the future, the letter says, federal officials could require any of those measures. Enforcement, it says, must also “ensure that the individual who was retaliated against receives redress.”
In a statement that surprised legal experts, the letter suggests that resolution agreements may include some kind of payment to individuals. “OCR will determine which remedies, including monetary relief, are appropriate based on the facts presented in each specific case,” the letter says.
That reads more like the resolution of a lawsuit than a complaint to a federal agency, said Kent D. Talbert, a former general counsel of the Education Department who now works as a lawyer in Washington. “It certainly sounds in the language of damages,” he said, “that they’re going to sit as a judge somehow and assess some kind of fine or penalty.”
Such provisions are not generally part of resolution agreements under civil-rights law, Mr. Talbert said. “There’s no language like that in the statute or the regs.” If his interpretation is correct, and the Education Department is saying that it will require payment to an individual, he said, “I would certainly question their authority to do that.”
Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, also wondered about the department’s statutory authority to impose such relief. Would resolution agreements start including creative remedies, he asked, like a tuition waiver or housing allowance payable to an aggrieved student?
Lawyers curious about the letter also pointed out that it was issued the same day that the Supreme Court heard arguments in the case University of Texas Southwestern Medical Center v. Nassar, which centers on retaliation. At issue is what standard should apply in deciding retaliation claims under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination.
Federal officials issue guidance to dispel confusion, but that is not always the result. “While they say it’s to clarify, certainly on the monetary-relief issue, it raises questions,” Mr. Talbert said of last week’s letter. Still, he did not expect a clarification. Unless the department hears from many higher-education officials and associations about this letter, he said, “it’ll probably just sit out there for a while.”
Future resolution agreements could make the department’s position clear. A current investigation, for instance, may result in monetary relief for a student or staff member who reported retaliation. “Then,” Mr. Talbert said, “you’ll know.”
