(Updated on 1/14/2022 at 4:45 p.m.) The Fairfax County School Board has asked the U.S. Supreme Court to take up a former student’s sexual assault lawsuit, a move that could reshape how the federal law against sexual violence in schools is interpreted.
A petition filed by the school board on Dec. 30 argues that public school systems can’t be held liable for sexual harassment and assault unless officials knew an assault took place and could have prevented it.
The lawsuit was initiated in May 2018 by a former Oakton High School student, identified as Jane Doe, who says Fairfax County Public Schools mishandled her report of being sexually assaulted by another student on a school band trip in 2017.
The school board is now seeking to reverse an appeals court’s order of a new trial in the case.
“Funding recipients are rightly held liable when their own conduct intentionally causes harassment,” the petition says. “But Title IX liability rightfully does not, under this Court’s precedents, extend to situations where a recipient does not actually know of harassment or when its actions cause no harassment.”
Title IX prohibits sex-based discrimination in public education programs and activities. Doe’s lawsuit argues that FCPS violated the law by ignoring reports of her assault, discouraging her from taking legal action, and failing to ensure her safety.
A U.S. District Court jury found in August 2019 that a sexual assault took place and harmed Doe’s educational experience, but the school board couldn’t be held liable under Title IX, because officials didn’t have “actual knowledge” that the assault had occurred.
Jury members’ reported confusion over the term “actual knowledge” — whether school officials need direct evidence of an assault or just a report of one — led Public Justice, the nonprofit representing Jane Doe, to appeal the case to the Court of Appeals for the Fourth Circuit.
A three-judge panel ruled in June that a sexual assault report meets the legal standard and ordered a retrial.
However, FCPS asked the appeals court to stay its order for a new trial in September, signaling that it planned to petition the Supreme Court.
In a statement to FFXnow, FCPS maintained that the school board “could not have foreseen the assault, did not cause it, and could not have prevented it”:
Fairfax County Public Schools is committed to upholding Title IX and firmly believes that every student deserves an education free from harassment or discrimination. The decision to pursue this legal avenue has nothing to do with challenging this critical civil rights law.
The question in this case is only about whether Congress intended America’s public schools, and the teachers that work in them, to be held financially responsible for student-on-student misconduct that they had no way to foresee and did not cause. We believe the law should be applied the same way nationwide, and only the Supreme Court has the power to restore that uniformity.
To fail to challenge the Fourth Circuit’s ruling would be to let down public school educators the length and breadth of the U.S., and especially in Virginia, during a time when they need support more than ever. In addition, to roll over in the face of costly and unfair lawsuits would be an irresponsible use of taxpayer dollars and would set a worrying precedent for school divisions facing similar lawsuits now and in the future.
However, Public Justice says the school board’s position is at odds with its claims to support students’ safety and civil rights, essentially suggesting that schools can only be held liable for sexual violence if it reoccurs.
“[FCPS] has now asked the Supreme Court to gut crucial protections for Jane Doe, for Fairfax students, and for young survivors across the country, pushing a misinterpretation of Title IX that the U.S. Department of Justice has called ‘absurd,'” Public Justice staff attorney Alexandra Brodsky said by email. “We are confident, though, that the Court will deny the cert petition and Jane will have the chance to be heard by a jury.”
Brodsky added that Doe isn’t seeking to hold FCPS responsible for the assault itself, but rather, for how it responded to her report.
Public Justice has not filed a response to the school board’s petition yet. The Supreme Court docket shows that a motion to extend the deadline for a response to April 8 was granted on Tuesday (Jan. 11).
Shatter the Silence Fairfax County Public Schools, a nonprofit that says it was founded by survivors, parents, and FCPS students, has launched a petition demanding that the school board drop its appeal.
“We the citizens demand that FCPS withdraw the baseless appeal in Doe v. Fairfax County School Board and appropriately respond to sexual assault in school,” the petition says. “Since FCPS continues its culture of cover-up and indifference, we ask the Virginia Attorney General and the Department of Justice to open a civil rights investigation into FCPS and bring accountability once and for all.”
Photo via Geoff Livingston/Flickr
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