Retaliation (Response 6/23/2020)
The regulations make the release of a perpetrator’s identity confidential unless FERPA exceptions apply. Based on the crimes of violence exception, that means that sexual assault, domestic violence, dating violence and stalking outcomes can be released if there is a finding of violation, but there is no exception for sexual harassment. Does that mean that recipients cannot release a finding of sexual harassment through a reference check, because it would be retaliatory to release this confidential information? Assume no state law requires such release.
The Title IX Rule, § 106.71(a), states that a recipient must keep confidential the identity of any person who has reported sexual harassment, or who has been reported to be a perpetrator of sexual harassment. The purpose of this provision is to prevent the school from retaliating against anyone. This duty of confidentiality has three exceptions in § 106.71(a): if disclosure is permitted under FERPA, if disclosure is required by law, or if disclosure is necessary to carry out the purposes of Title IX and its regulations, including to conduct a grievance process.
A recipient’s disclosure of the identity of a respondent cannot be made with a retaliatory purpose without violating § 106.71. If the disclosure is made by a recipient without falling into one of the three exceptions listed in § 106.71, OCR would view the disclosure as potentially retaliatory and examine the facts and circumstances to determine whether the disclosure either (i) satisfied one of the three exceptions (for example, the disclosure was necessary to carry out the purposes of Title IX), or (ii) was made for a non-retaliatory purpose.