DOE’s Office for Civil Rights Releases First Retaliation Guidance in 12 Years

The U.S. Department of Education’s (DOE) Office for Civil Rights (OCR) released a new resource that details its process for investigating retaliation claims and provides examples of cases it investigates.

Released in December 2024, this is the OCR’s first public guidance document on the topic since 2013, when it issued its Dear Colleague letter.

Here’s what you need to know:

OCR’s Jurisdiction Over Retaliation Claims

A common misconception is that retaliation claims are only for Title VII. But the OCR may investigate and enforce claims of retaliation for all recipients of federal funding from the DOE, including most schools and higher education entities. These statutes include:

• Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin.
• Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in education programs or activities
• The Age Discrimination Act of 1975.
• Title II of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973, which prohibit discrimination on the basis of disability.

The OCR is currently investigating 963 institutions on disability retaliation claims, 432 institutions on Title IX retaliation claims, and 526 institutions on Title VI retaliation claim and 18 institutions on age retaliation.

The Basics of Retaliation

Retaliation can take the form of intimidation, threats, coercion or another adverse action against any member of the school community. This includes students, siblings, parents, guardians, teachers, counselors, coaches or third parties advocating for the rights of a student, expanding the categories of individuals who can bring a complaint to the OCR beyond those enumerated in the aforementioned civil rights statues.

The three elements of a retaliation claim are the same in the OCR context as we know them in Title VII:

1. The complainant opposes discrimination or participates in a protected activity. Protected activity is defined as oppositional activity, such as opposing or reporting activities that are reasonably believed to violate civil rights laws, or participating in a matter (such as an OCR investigation) that is reasonably believed to violate civil rights laws. Note that the believed protected activity does not actually have to violate the law. The complainant just must have a reasonable belief that it does.
2. The complainant experiences adverse action. Adverse action is defined as any action likely to discourage a reasonable person from making or supporting a complaint of discrimination or from exercising a right or privilege under the laws enforced by OCR.
3. There is a causal connection between the protected activity and the adverse action. Causal connection is defined as anything indicating that the adverse action occurred because of the protected activity. Common examples of factors showing a causal connection are temporal proximity (closeness in time between the protected activity and adverse action), changes in treatment to the complainant after the protected activity, failing to follow school policy, or inconsistent or shifting explanations.

If an OCR complaint meets these three elements, the school is then given the opportunity to respond with a legitimate, non-discriminatory explanation for its conduct. If the OCR finds that discriminatory conduct occurred, it will first seek voluntary compliance with the school. If the school declines voluntary compliance, then the OCR can take enforcement actions by beginning administrative proceedings to suspend federal funding.

Examples Provided

Perhaps the most helpful section of the OCR guidance document is the list of 15 examples of conduct that constitutes retaliation. They begin on page three of the document. Three are reproduced below.

1. A principal instituted a new dress code policy that prohibited girls from dressing “provocatively.” In response, several students complained to the school that the dress code discriminated against girls. The principal then threatened expulsion of the students who complained and limited their access to school activities and extracurricular programming.
2. A Jewish high school student sent several emails to the school’s principal complaining that he observed his classmates drawing swastikas in the bathroom. After the principal spoke to the classmates, they started following the Jewish student around school and shoving him in the hallways, using antisemitic slurs. The student again emailed the principal about the shoving and comments. The principal took no action to address the conduct of the classmates, which continued for the remainder of the school year.
3. After a parent filed an OCR complaint alleging disability discrimination against her child, and subsequently sent an email to the school expressing concerns with her child not receiving disability-related services, the superintendent informed the parent he would not tolerate her questioning decisions made by his staff and canceled previously scheduled Section 504 meetings with the parent.

The examples highlight that students, parents and advocates can engage in protected activity and that adverse action can take the form of threats, inaction or limitation to school services.

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