Fairfax County Public Schools has asked a federal appeals court to postpone an ordered retrial of a former Oakton High School student’s sexual assault lawsuit, setting up a possible escalation of the case to the U.S. Supreme Court.

The school system plans to file a petition for a writ of certiorari requesting that the Supreme Court take up the case, according to Public Justice, the nonprofit legal organization that represents the student, who has only been identified as Jane Doe.

Public Justice told FFXnow that it learned about those intentions Monday morning (Sept. 20), though it’s still holding out hope that the Fairfax County School Board will opt not to file the petition.

The law firm warns that, if FCPS files a petition and the appeal is accepted, it could set the stage for a reevaluation of Title IX protections against gender discrimination, which have traditionally been used to address school-based sexual violence, by the same court that allowed Texas to essentially ban abortions earlier this month.

“Fairfax would be asking them to severely undermine students’ civil rights,” Public Justice staff attorney Alexandra Brodsky, the plaintiff’s counsel, said. “I think there’s a real question for Fairfax families whether they want the legacy of Fairfax schools to be undermining equality and safety for students.”

Filed in May 2018, the lawsuit argues that FCPS violated Doe’s Title IX rights by failing to ensure her safety and provide support after she reported that an older, male student sexually assaulted her when they were on a bus during the five-day school band trip.

The school board’s Sept. 9 regular meeting agenda includes a closed session to consult with legal counsel about the case, known as “Jane Doe v. Fairfax County School Board et al.”

FCPS confirmed that it has requested the U.S. Court of Appeals for the Fourth Circuit to stay its June 16 ruling ordering a new trial in Doe’s lawsuit over school officials’ response to her report of being sexually assaulted by a fellow student during a band trip in 2017.

With one judge dissenting, the three-person panel reversed a U.S. District Court jury’s verdict in favor of FCPS, arguing that the lower court had failed to accurately define for the jury the legal standard to determine if the school system had “actual knowledge” of the reported assault.

“As the divergent opinions of the Fourth Circuit show, the issues in this case could have nationwide and potentially far-reaching implications,” FCPS spokesperson Julie Moult said in a statement. “For that reason, we have asked the court to stay or suspend the effective date of its ruling, pending further review.”

FCPS said it had no further comment at this time, including on whether it plans to petition the Supreme Court.

According to Doe’s original complaint, school officials ignored multiple reports from other students about her assault, never offered medical attention or counseling, discouraged her from reporting the incident to police, and imposed no consequences on her assailant, who continued attending their shared band class.

The district court jury in Alexandria affirmed in August 2019 that Doe had been sexually assaulted and deprived of educational opportunities as a result, but they found FCPS couldn’t be held liable for its response because they didn’t have evidence that officials knew for a fact that the assault had occurred.

Jurors’ reported confusion over whether reporting sexual harassment can be considered giving school officials actual notice or knowledge of an assault formed the basis of Doe’s appeal to the Fourth Circuit, which held oral arguments in January before ruling that the jury had used the incorrect legal standard.

FCPS later requested a rehearing en banc, which would bring the case in front of the full appeals court. The 15 appellate judges denied the petition 9-6 on Aug. 30, a close decision that inspired two judges to release dissenting opinions — a rare move, according to the Associated Press.

According to Brodsky, FCPS currently has 90 days from the date of the rehearing denial to file an appeal to the Supreme Court, but that would change if the stay of the new trial is granted.

“The next step should be to take this case back to trial and for a jury to hear our client’s story and have the opportunity for the first time to rule on it under the correct legal standard,” Brodsky said, adding that Public Justice is “confident that that’s where this case is headed” after the rehearing petition was denied.

Brodsky says she’s less surprised by FCPS seeking a delay than by the argument it’s using to do so.

As stated in the majority opinion written by Judge James Wynn, the school board’s rehearing petition included a new argument that “Title IX does not make clear that schools may be held liable for their response to a single instance of sexual harassment, no matter how egregious.”

In other words, schools can’t be held legally responsible for reported sexual harassment under Title IX if it doesn’t recur, since they couldn’t have prevented the initial incident.

While the position found support among the dissenting judges, who expressed concern that “retroactively” imposing liability could open schools to “a deluge” of lawsuits, Wynn rejected it as a “strawman” that would amount to giving schools a “free rape.”

He stated in his opinion that Doe’s lawsuit seeks to hold FCPS liable for its response to her assault, not for the assailant’s actions. He also noted that the stance is “at odds” with the case that the school board presented during oral arguments.

“When a student’s education is disrupted because of their school’s failure to address sexual assault, that’s enough to state a Title IX claim. That’s what the Fourth Circuit said,” Brodsky said. “That’s what the majority of appellate courts across the country have said, and if the Supreme Court were to adopt the alternative rule, that would really give schools an excuse to withhold the support that students need in the wake of violence.”

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Morning Notes

Fairfax County firefighters use a hose and ladder in a drill outside the Vantage Hill condominiums (via vantagehill/Flickr)

Flood Watch in Effect — A flood watch is in effect though the afternoon today. So be on the lookout for potential flooding. [Fairfax County Fire and Rescue Department]

Herndon Man Allegedly Uses Belt to Restrain Student — A music teacher from Herndon tried to restrain a disruptive student with his belt at an elementary school Sept. 15 in Fauquier County, police said. The 23-year-old was charged Monday with assault, battery and contributing to the delinquency of a minor, and he was placed on administrative leave pending an investigation. [Fauquier County Sheriff’s Office]

Reston Multicultural Festival Returns — The annual festival, which is organized by Reston Community Center, returns to Lake Anne Plaza on Saturday. [WUSA9]

Feedback on Bus Service Sought — The county’s Department of Transportation is seeking the public’s feedback as it explores ways to improve the Fairfax Connector’s bus service. [Patch]

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The Return to Earn initiative was launched in June of this year to help small businesses find and retain the talent they need while also helping unemployed Virginian’s transition back into the workforce.

As a program incentive, businesses can receive $500 per hire for a maximum of 25 employees. That means your business could receive up to $12,500 depending on hiring and staffing needs.

Basic eligibility requirements for program participation follow.

Employers must:

  • Be incorporated in Virginia
  • Be in good standing with the state
  • Have 99 employees or less

For new hires:

  • Must have been brought on board after May 31, 2021
  • The position must be W2 and come with a wage of $15 an hour or more (tips can be included in wage determination)
  • Must attest to having been unemployed at the time of hire*

The SkillSource Group, Inc. and Virginia Career Works Northern Region are working hard to make this program available to the small business community and to make the application, enrollment and reimbursement process as simple as possible. Stand out from the competition, increase new employee morale and take part in the Return to Earn Program. Click here to access an online application.

*Length of unemployment is dependent on time of hire

McNair Elementary School students pick up lunch on their first day of school for the 2021-2022 academic year (via FCPS)

Fairfax County Public Schools is revising a number of procedures around COVID-19 contact tracing, quarantining, and pausing, even as it maintains that case numbers remain proportionally very low in schools.

School officials are actively exploring their options for expanding student vaccination requirements, including a possible mandate once the Food and Drug Administration and Centers for Disease Control and Prevention authorize it for kids 5 and older, which could happen as early as the end of October.

However, FCPS would have to wait for the Virginia General Assembly to act before it can require COVID-19 vaccinations for all students under state law, which gives authority for determining mandatory school immunizations to the legislature and a state health regulatory board.

“If I had [the power to do this], I’d recommend right now to this board mandatory vaccinations for our students upon full authorization from the FDA,” Superintendent Scott Brabrand said at a school board work session yesterday (Tuesday). “If we have the burden of educating kids, it should be determined by officials closest to schools who should be vaccinated and not vaccinated and not wait for the state to give us permission to do so.”

At the moment, officials said they are in talks with legal counsel about expanding the existing vaccine mandate for high school student athletes to other secondary school extracurricular activities, such as theater programs.

According to Brabrand’s presentation to the school board, 0.33% of staff, students, and visitors — 677 individuals in total — reported testing positive for COVID-19 from Aug. 13 to Sept. 15. Only 24 cases involved transmission within one of the 198 schools and offices in the county, Brabrand said.

Since Aug. 1, 936 cases have been reported to FCPS, according to the school system’s case dashboard. Fairfax County Health Director Dr. Gloria Addo-Ayensu told the Board of Supervisors at a health and human services committee meeting yesterday that the county is seeing 30 to 40 cases among students per day on average, with some days going as high as 50 cases.

While Addo-Ayensu also said the majority of transmission has occurred in the general community, not in schools, each case has a ripple effect as additional staff and students who might have been exposed to the virus have been subjected to isolation, quarantine, or in-person learning pauses.

Between Aug. 13 and Sept. 15, 2,905 students — or 1.6% of the student body — have been paused, meaning they were COVID positive or a potential close contact and had to remain out of school during contact-tracing investigations. Nearly half were elementary school students.

1.8% of staff, or 502 individuals, have been paused as well during that time period.

“We know the impact of the pause…is significant,” Brabrand said. “We are working with health partners and the Fairfax County Health Department to minimize the length of time that students are out, while maintaining a safe environment.”

In addition, the time it takes to complete contact tracing and “close” a case has increased significantly over the last month as more cases have come in, keeping more students out of school longer.

In mid-August, most cases were closed within four days with an average of 2.5 days. Now, in mid-September, the average duration has jumped to nearly 10 days, with 78 cases taking 12 days or longer, according to data provided by FCPS.

To speed up the process, FCPS has instituted several measures, including hiring individuals to help with COVID management and implementing a vaccination verification survey intended to let students who are both asymptomatic and vaccinated return to classes sooner.

Schools no longer need to provide seating charts and other information to the county health department, which has also started notifying families about pauses via both email and phone after communication issues led some students to break COVID-19 protocols.

FCPS officials also confirmed that they’re developing new methods to support students when they are being paused, including one-on-one check-ins every 48 hours and live streaming lessons.

A number of school board members raised concerns about the extra work this will create for staff and teachers on top of the other challenges that have emerged with the resumption of five days of in-person  learning.

Brabrand responded that these processes should hopefully be only temporary as school and health staff work to shorten the length of contact-tracing investigations.

“If we are in the situation we are [currently] in at the end of the calendar year, then we will need to revisit our assumptions about how we are operating as a school district,” he said when asked about calls for more virtual learning. “We are back in-person and we are doing all we can to stay, but we need to see about the results over the last few months to inform additional General Assembly action.”

In terms of vaccination rates, 87% of staff responded a survey from FCPS about their vaccination status. 96.8% of respondents said they are vaccinated.

FCPS is requiring all employees to get vaccinated by late October.

About 83.5% of residents 12 to 17 years old have received at least one dose of a vaccine, according to health department data, but FCPS confirmed to FFXnow that it doesn’t currently have statistics specifically for its students.

FCPS didn’t immediately respond when asked if it plans to survey parents and students like it did for staff.

“Education as we know it will forever change if we can’t get our kids and staff vaccinated,” Brabrand said at the work session.”I strongly believe that vaccination is going to be the way out of this pandemic.”

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An electric vehicle charging station already installed in Reston (Photo via screenshot/Reston Association)

As more and more drivers shift to sustainable vehicles, a design review board for the Reston Association is looking to formalize requirements for what electric vehicle charging stations must have outside homes and businesses.

Following a public hearing, the board agreed yesterday (Tuesday) to review process and design standards. Interior charging stations, such as those in garages, are immune from the existing and proposed rules.

“Reston Association will more than likely be one of the first associations to have a design guideline that is strictly related to electric vehicle charging stations; so we’re really happy about that,” said Cam Adams, the association’s director of covenants administration.

The proposed standards will eventually go before the RA Board of Directors for approval. A board operations committee could review the matter in October.

The association has previously noted that such charging stations already require design review board approval. But it has no formal criteria, which was part of the reasoning for creating the standards.

The new measure calls for restricting stations to 6.5 feet in height, limiting a station to have two bollards — those vertical posts used along interstate express lanes — with a same height restriction and prohibiting wooden pedestals as well as cables/cords from extending over paths, among other criteria.

It also calls for several preferences, such as using parking blocks over bollards.

About 7% of U.S. adults have an electric or a hybrid vehicle, an adoption rate that’s slower than China and Europe, according to the Pew Research Center.

The proposal says projects would require an applicant to obtain neighbors’ signatures. It also says a panel of the design review board would then review applications and apply the guidelines.

Existing stations that received design review board approval would be grandfather in, according to the association.

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We’re in a seller’s market. We’ve all heard it from our friends and seen it on the news. However, I’ve been on showings with buyer clients recently and noticed some sellers are getting too aggressive with their pricing. We’ve seen marked-up walls, dirty floors/carpet, lots of clutter — even holes in countertops! When buyers are touring these homes, they’re either completely turned off or they’re mentally deducting money from the list price.

Also, some sellers are investing money in things buyers don’t care about such as unique details that don’t appeal to most people — intricate flooring or flooring that differs from room to room, glass tile backsplashes in kitchens that make the home look dated and not updated, dark paint colors, or shoddy work done by contractors like painting over switch plates (that drives me crazy!).

The first days your home is on the market are crucial! If you’re not getting showing requests in the first 24 to 48 hours, your home is likely mispriced. Ideally, we want one showing per day, on average, the first week we’re on the market.

In fact, the longer your home is on the market, the less it will eventually sell for. As the “days on market” accumulate, buyers AND agents think something is wrong with it and won’t want to tour.

Some sellers think, “I’ll be aggressive and just lower the price in a couple of weeks.” This is called ‘chasing the market.’ The buyers have already moved on and have no interest in your home. Why? They don’t want to negotiate with an unrealistic seller or someone they interpret as being difficult.

The bottom line: Consult with an agent that truly understands this market and has a solid pricing strategy. If you have any questions or want to talk about strategy, please call/text/email.

Thanks for reading!

Lynn Cooper is a licensed REALTOR in Virginia with McEnearney Associates in McLean. Whether buying or selling, Lynn is 100% committed to her clients before, during and after the transaction. Connect with Lynn at 202-489-7894, [email protected] or @lyncooperrealestate.

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PassionFish (Photo by PassionFish)

A local employee was selected as employee of the year during this year’s RAMMYS.

The awards, which are organized by Restaurant Association Metropolitan Washington. Fully vaccinated guests attended the in-person ceremony over the weekend at the Walter E. Washington Convention Center.

Ruben Avila of PassionFish in Reston Town Center was named employee of the year by a panel of judges. But more than half to the awards were based on public votes.

The awards honor the accomplishments of organizations and individuals integral to the local foodservice and restaurant community.

A complete list of the winner is available online. Silver Diner, which has a location in Reston, was recognized for being a technology trailblazer.

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The Fairfax County School Board discusses a first-year interim report of a two-year review of the district’s special education program (via FCPS)

Fairfax County Public Schools is conducting the first public review of its special education services since 2013 after the COVID-19 pandemic disrupted traditional learning with remote classes that disproportionately affected students with disabilities.

Presented to the school board at a work session yesterday (Tuesday), findings from the first year of the review highlight families’ frustrations with the Individualized Education Program (IEP) process and suggest the school system disproportionately disciplines special education students, especially Black and Hispanic children.

Requested by the school board in December 2019 and officially launched on Nov. 10, 2020, the interim report states explicitly that the review “does not address special education programming during COVID-19.”

The contracted firm — the Arlington-headquartered nonprofit American Institutes for Research — said FCPS decided to focus on collecting data for normal school operations.

On the positive side, surveys of both staff and parents found that 87% of the over 18,500 parents who responded “agreed or strongly agreed that they were satisfied with the quality of teaching staff in their child’s school,” frequently noting the caring nature of instructional staff and expressing appreciation for employees.

The review showed that, from 2016-2021, FCPS had about nine or 10 students per special education teacher, a lower ratio than the state average of 15-to-1. The district has also taken steps to improve communication with school staff, including by appointing an assistant ombudsman for special education in 2019, the report said.

While researchers stressed that this is an initial update and the conclusions aren’t final, the report found several areas of concern:

  • Families voiced a lack of transparency and accountability about Individualized Education Program goals and progress
  • Suspension and expulsion rates were higher for certain races than others
  • Parents suggested that the IEP process for getting student input on post-high school transition plans “may be driven by compliance rather than student needs”
  • Novice teachers lack preparation to work with students with disabilities, an area that researchers are investigating further
  • Staff reported feeling overwhelmed by case management, paperwork, and meeting duties, affecting FCPS’ ability to effectively recruit and retain teachers
  • The amount and quality of communication between parents and staff varies by school
  • A sampling showed more than a third of IEPs had no written evidence of parent input

“‘It’s so sad.’ That’s what I wrote all over this document,” Mason District Representative Ricardy Anderson said.

An interim report for a special education review compared suspension rates for students with disabilities and other students (via American Institutes of Research/FCPS)

In addition to discussing how to address the issues raised by the report, school board member after school board member raised concerns about the review process, urging researchers to be specific in their recommendations by looking at subgroups and other factors. Officials suggested broad takeaways could dilute matters and not help families.

“My fear overall about this is that this is a one-sized-fits-all special ed audit,” Laura Jane Cohen, the board’s Springfield District representative, said.

Researchers responded that they used a random sampling to collect their preliminary findings. They also noted constraints with interviewing kids, while expressing a willingness to consider changes.

The firm said it will go more in-depth during the second year of a $375,000-plus contract issued in October 2020.

FCPS Auditor General Esther Ko reminded the board that it has a fixed contract and the firm will work at no cost for three more months after its second year. If the board wants more changes, though, it could amend the contract or open another bidding process to look at other topics.

The board requested that Ko to evaluate possible changes to the review with American Institutes for Research for its audit committee to go over later.

Currently set to be completed next summer, the review will make recommendations to FCPS for how to improve services for students with disabilities and their families.

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Morning Notes

Working at Lake Anne Plaza (Photo via vantagehill/Flickr)

Senior Movie Day Returns — Reston Association’s senior movie day returns to Bow Tie Cinema in Reston Town Center today. Doors open at 9:15 a.m. and the movie — Queen Bees — begins at 10 a.m. The event began in 1994 and was paused roughly 18 months ago due to the pandemic. [Reston Today]

Police Chief Issues Alert After Overdoses — The Fairfax County Police Department’s police chief alerted the community yesterday after six people overdosed in one morning in Falls Church. All six adults ranged from 23 to 35 years of age. [Fairfax County Police Department]

County Community Transmission Still High — COVID-19 transmission in the county is still high, although more than 62 percent of the county’s population is fully vaccinated. The county’s health department offered an update to the Fairfax County Board of Supervisors this week. [Fairfax County Government]

An Update on Early Voting — So far, more than 2,600 people have voted in person so far during the first three days of early voting. Three voting sites are open during weekdays in the county. [Fairfax County Government]

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East Elden Street (Image via handout/VDOT)

The widening of Elden Street from four to six lanes  — a roughly $40.6 million project — is expected to begin in late 2022.

The Virginia Department of Transportation plans to widen the street between Herndon and Fairfax County parkways. Along the street, bike lanes are planned from Monroe Street to Herndon Parkway, in addition to cycle tracks from Herndon Parkway to Fairfax County Parkway.

VDOT will also replace culverts over Sugarland Run with a new bridge to improve stream flow and reduce flooding. Overhead utilities along Elden Street will be buried between Monroe Street and Fairfax County Parkway.

Right-of-way acquisition kicked off in 2019 and is expected to wrap up by the end of the fall, according to Murphy.

Construction for the underground utility duct bank will begin in late 2022. But the actual widening, bicycle improvements, and construction of the bridge won’t kick off until early 2025, according to Mike Murphy, a spokesman for VDOT.

“The costs and schedules are estimates and subject to change as the design progresses and schedules are refined,” Murphy wrote in a statement to Reston Now.

Most of East Elden Street is a fore-lane undivided road. Few dedicated left-turn lanes result in major backups and traffic congestion. Changes are expected to improve access to businesses and the future Herndon Metrorail Station.

A host of other pedestrian and road improvements are planned in the Town of Herndon. In May, the town council awarded a contract to the Ashburn Construction Corp. for a new signal and sidewalks at the Elden -Monroe Street intersection.

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