U.S. Department of Education Releases New Resource on Retaliation Under Federal Civil Rights Laws

On December 10, 2024, the U.S. Department of Education’s Office for Civil Rights (“OCR”) published a new resource addressing retaliation under the federal civil rights laws that OCR enforces, including Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act of 1990.

Through a series of questions and answers, the resource provides an overview of the key elements of retaliation, outlines how OCR assesses retaliation claims, and provides information about how to file a complaint with OCR. The resource also lists examples of protected activities and hypothetical scenarios that, depending on the facts and circumstances, could raise concerns about unlawful retaliation.

Key takeaways from the resource guide include:

• Federal civil rights laws offer protection for individuals who exercise their civil rights, oppose discrimination, report discrimination, or participate in civil rights investigations or proceedings. This includes not only students, but also siblings, parents, guardians, teachers, counselors, coaches, or third parties advocating for the rights of a student.

•  To establish a prima facie case of retaliation, a complainant must establish: (a) that they complained about discrimination or otherwise engaged in a protected activity; (b) that they experienced an adverse action; and (c) that there is some evidence of a causal connection between the adverse action and the protected activity.

• A retaliation claim can stem not only from a recipient’s actions, but also from its inaction. To illustrate, OCR presents a hypothetical scenario involving a high school principal who failed to act in response to a student’s report of alleged peer harassment based on shared ancestry, which OCR has stated falls under the purview of Title VI. As a result, the peer harassment continued for the remainder of the school year. In such a case, OCR could find that the principal’s inaction effectively punished the student for reporting the alleged harassment (i.e., by forcing him to endure ongoing harassing conduct without institutional support), thereby raising a potential retaliation claim.

• Where a complainant establishes a prima facie case of retaliation, the institution can still defeat the claim by showing that there was a legitimate, non-retaliatory reason for the adverse action that was not a pretext or cover for retaliation. However, if OCR determines that the institution took an adverse action for both an illegitimate, retaliatory reason and a legitimate non-retaliatory reason, OCR may still find the action to be unlawful (i.e., where retaliation contributed to the decision).

In a footnote within the document, OCR acknowledges that the current and future status of Title IX is in flux due to the pending lawsuits challenging the 2024 Title IX Regulations and the resulting court orders enjoining the Department of Education from enforcing the 2024 Regulations in various states and schools throughout the country. OCR notes, however, that retaliation is prohibited under both the 2020 and 2024 Regulations, and therefore, institutions must refrain from engaging in retaliatory activity regardless of which version of the Regulations is applicable to them.

Finally, the resource guide makes clear that OCR will continue to vigorously enforce prohibitions of retaliation under the civil rights laws within its jurisdiction, emphasizing that the ability of individuals to oppose discriminatory practices and to participate in OCR investigations and other proceedings is critical to ensuring equal opportunity in accordance with federal civil rights laws.

HMBR will continue to monitor OCR’s enforcement activity and will provide further updates as we receive new information on the priorities and plans of the incoming administration. If you have any questions on OCR’s new resource or its applicability to your institution, please reach out to any member of HMBR’s Education Group.