Department of Education’s Latest 'Dear Colleague' Letter on Title IX Retaliation is Puzzling

The Office for Civil Rights (OCR) of the United States Department of Education (Department) periodically issues policy guidance in the form of a "Dear Colleague" letter (DCL). As regular readers of The Torch know, the April 4, 2011, DCL on sexual harassment—including sexual violence—presented serious threats to student and faculty rights. With that letter, OCR issued new requirements, including a mandate to use a "preponderance of the evidence" standard to determine if someone was guilty of sexual misconduct. A full explanation of the problems with the April 2011 DCL can be found here and here.

While the April 2011 DCL was a bombshell, the latest DCL, issued on April 24, 2013, is more of a head-scratcher. Most of the letter is a straightforward reminder that retaliation against someone who has filed a Title IX complaint "is also a violation of Federal law." As the letter explains:

[O]nce 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.

This is not ground-breaking guidance, but as Allie Grasgreen suggests in a short piece for Inside Higher Ed, it's been two years since OCR "began cracking down" on sexual misconduct. OCR may have wanted to reiterate the importance of Title IX protections, especially in light of alleged retaliation complaints at University of North Carolina, Swarthmore, and Occidental College.

The letter then describes "OCR's methods of enforcement," starting with the familiar process of entering into a dialogue with the school to look into the alleged retaliation and, if warranted, crafting a resolution agreement that would ensure that the victim receives redress and the school "complies with the prohibition against retaliation in the future." Most of the enforcement measures are standard, such as training for employees to recognize retaliatory behavior and outreach strategies for making sure that everyone understands that retaliation is forbidden.

But here is the odd part: "OCR will determine which remedies, including monetary relief, are appropriate based on the facts presented in each specific case." (Emphasis added.) While OCR might be able to suggest that money be paid to a complainant as part of a resolution agreement, granting an individual monetary relief seems like an insupportable usurpation by OCR of a function usually provided by the courts.

Nor is FIRE the only observer responding with raised eyebrows. According to an article by Sara Lipka in The Chronicle of Higher Education (subscription required), the language puzzled both Kent D. Talbert, a former general counsel of the Education Department, and Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University. Mr. Talbert said that "[i]t certainly sounds in the language of damages, that they're going to sit as a judge somehow and assess some kind of fine or penalty." FIRE is unaware of any enabling authority for the power to force colleges to pay victims of retaliation "monetary relief" in the department's authorizing statute, Title IX, or the accompanying regulations, and OCR doesn't cite any in its letter.

Here on The Torch, we've wondered about OCR overstepping its statutory bounds before, having asked if the new mandates contained in the April 4, 2011 Dear Colleague letter should have been subjected to public notice and comment, per the Administrative Procedure Act. Given this latest development, FIRE will be keeping an eye out to see if OCR decides to impose such a damage award, as well as how it enforces and justifies its action.