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THE ASSISTANT SECRETARY
April 24, 2013
Dear Colleague:
The Office for Civil Rights
(OCR) in the United States Department of Education (Department) is responsible
for enforcing Federal civil rights laws that prohibit discrimination based on
race, color, national origin, sex, disability, or age by recipients of Federal
financial assistance (recipient(s)) from the Department.1 Although a significant portion of the complaints filed with OCR in
recent years have included retaliation claims, OCR has never before issued
public guidance on this important subject. The purpose of this letter is to
remind school districts, postsecondary institutions, and other recipients that
retaliation is also a violation of Federal law.2 This letter seeks to clarify the basic principles of retaliation
law and to describe OCR’s methods of enforcement.
The ability of individuals
to oppose discriminatory practices, and to participate in OCR investigations
and other proceedings, is critical to ensuring equal educational opportunity in
accordance with Federal civil rights laws. Discriminatory practices are often
only raised and remedied when students, parents, teachers, coaches, and others
can report such practices to school administrators without the fear of
retaliation. Individuals should be commended when they raise concerns about
compliance with the Federal civil rights laws, not punished for doing so.
The Federal civil rights
laws make it unlawful to retaliate against an individual for the purpose of
interfering with any right or privilege secured by these laws.3 If, for example, an individual brings concerns about possible
civil rights problems to a school’s attention, it is unlawful for the school to
retaliate against that individual for doing so. It is also unlawful to
retaliate against an individual because he or she made a complaint, testified,
or participated in any manner in an OCR investigation or proceeding. Thus, once
a student, parent, teacher, coach, or other individual complains formally or
informally to a school about a potential civil rights violation or participates
in an OCR investigation or proceeding, the recipient is prohibited from
retaliating (including intimidating, threatening, coercing, or in any way
discriminating against the individual) because of the individual’s complaint or
participation. OCR will continue to vigorously enforce this prohibition against
retaliation.
If OCR finds that a
recipient retaliated in violation of the civil rights laws, OCR will seek the
recipient’s voluntary commitments through a resolution agreement to take
specific measures to remedy the identified noncompliance.4 Such a resolution agreement must be designed both to ensure that
the individual who was retaliated against receives redress and to ensure that
the recipient complies with the prohibition against retaliation in the future.
OCR will determine which remedies, including monetary relief, are appropriate
based on the facts presented in each specific case.
Steps OCR could require a
recipient to take to ensure compliance in the future include, but are not
limited to:
·
training for employees about the prohibition against retaliation
and ways to avoid engaging in retaliation;
·
adopting a communications strategy for ensuring that information
concerning retaliation is continually being conveyed to employees, which may
include incorporating the prohibition against retaliation into relevant
policies and procedures; and
·
implementing a public outreach strategy to reassure the public
that the recipient is committed to complying with the prohibition against
retaliation.
If OCR finds that a
recipient engaged in retaliation and the recipient refuses to voluntarily
resolve the identified area(s) of noncompliance or fails to live up to its
commitments in a resolution agreement, OCR will take appropriate enforcement
action. The enforcement actions available to OCR include initiating
administrative proceedings to suspend, terminate, or refuse to grant or
continue financial assistance made available through the Department to the
recipient; or referring the case to the U.S. Department of Justice for judicial
proceedings.5
OCR is available to provide
technical assistance to entities that request assistance in complying with the
prohibition against retaliation or any other aspect of the civil rights laws
OCR enforces. Please visit http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm to contact the OCR regional office that serves your state or
territory.
Thank you for your help in
ensuring that America’s educational institutions are free from retaliation so
that concerns about equal educational opportunity can be openly raised and
addressed.
Sincerely,
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/s/
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Seth M. Galanter
Acting Assistant Secretary for Civil Rights |
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1 OCR enforces Title VI of the Civil Rights Act of 1964 (Title VI),
Title IX of the Education Amendments of 1972 (Title IX), Section 504 of the
Rehabilitation Act of 1973 (Section 504), the Age Discrimination Act of 1975
(Age Act), and the Boy Scouts of America Equal Access Act (Boy Scouts Act). OCR
also shares enforcement responsibilities with the Department of Justice for
Title II of the Americans with Disabilities Act of 1990 (Title II), which
prohibits discrimination against individuals with disabilities in state and
local government services, programs and activities, regardless of whether they
receive Federal financial assistance.
2 The Federal courts have repeatedly affirmed that retaliation is a violation of the Federal civil rights laws enforced by OCR. See, e.g., Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005); Peters v. Jenney, 327 F.3d 307, 320-21 (4th Cir. 2003); Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).
3 See 34 C.F.R. § 100.7(e) (Title VI); 34 C.F.R. § 106.71 (Title IX) (incorporating 34 C.F.R. §100.7(e) by reference); 34 C.F.R. § 104.61 (Section 504) (incorporating 34 C.F.R. §100.7(e) by reference); and 34 C.F.R. §108.9 (Boy Scouts Act) (incorporating 34 C.F.R. §100.7(e) by reference). Title II and the Age Act have similar regulatory language. See 28 C.F.R. § 35.134 (Title II); and 34 C.F.R. § 110.34 (Age Act).
4 See OCR’s Case Processing Manual for more information about resolution agreements, available at http://www.ed.gov/ocr/docs/ocrcpm.html.
5 See 34 C.F.R. § 100.8.
2 The Federal courts have repeatedly affirmed that retaliation is a violation of the Federal civil rights laws enforced by OCR. See, e.g., Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005); Peters v. Jenney, 327 F.3d 307, 320-21 (4th Cir. 2003); Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).
3 See 34 C.F.R. § 100.7(e) (Title VI); 34 C.F.R. § 106.71 (Title IX) (incorporating 34 C.F.R. §100.7(e) by reference); 34 C.F.R. § 104.61 (Section 504) (incorporating 34 C.F.R. §100.7(e) by reference); and 34 C.F.R. §108.9 (Boy Scouts Act) (incorporating 34 C.F.R. §100.7(e) by reference). Title II and the Age Act have similar regulatory language. See 28 C.F.R. § 35.134 (Title II); and 34 C.F.R. § 110.34 (Age Act).
4 See OCR’s Case Processing Manual for more information about resolution agreements, available at http://www.ed.gov/ocr/docs/ocrcpm.html.
5 See 34 C.F.R. § 100.8.
Emily Becker