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Judge lets grand jury keep investigating sexual assaults in Loudoun schools

correction

A previous version of this story inaccurately described an allegation made by an attorney for the Loudoun County school board against Virginia Attorney General Special Counsel Theo Stamos. The allegation was made against a special agent working for the state. This version has been corrected.

A Loudoun County judge ruled Monday that a grand jury investigation of the Loudoun County Public Schools’ handling of two sexual assaults can move forward, despite a legal challenge from the county school board.

“We cannot know where this will lead,” Judge Jim Plowman said in Loudoun County Circuit Court, explaining his ruling. He concluded that while the grand jury’s work is ongoing, it would be “premature” to say the school system has been damaged: “I do not believe that there is a cognizable, irreparable harm here.”

The special grand jury was convened as part of an investigation by Virginia Attorney General Jason S. Miyares into the handling of two sexual assaults committed last year by the same Loudoun student. The school system has come under intense criticism for transferring the student after his first sexual assault to a different campus, where he committed a second.

The teen, who was 14 when he committed the first assault, was found guilty in both cases and sentenced to live in a residential treatment facility until he is 18. Loudoun school officials apologized for the handling of the incidents and promised major changes to disciplinary procedures.

Loudoun schools chief apologizes for district’s handling of alleged assaults, promises changes to disciplinary procedures

The ruling can be appealed to a higher court. Attorneys for the school board declined to comment; Deputy Attorney General Steven Popps said his office is “very pleased with the result.” In a statement, a spokesman said the school system does not agree with all of Plowman’s rulings Monday, but “appreciates the Court’s thoughtfulness” in addressing the issues. The system is considering all available legal options, but has not made any final decisions.

While campaigning last year, Republican Gov. Glenn Youngkin made the incidents part of his criticism of school policies. On his first day in office in January, he issued an executive order authorizing Miyares “to conduct a full investigation into Loudoun County Public Schools.” A special grand jury has since subpoenaed the superintendent and individual members of the school board, according to court records. Youngkin tried unsuccessfully this spring to force all nine members of the school board to face elections this year.

The school board sued in May to stop the work of the grand jury, saying both Youngkin and Miyares overstepped their authority and are engaged in a “fishing expedition” rather than a legitimate criminal probe.

The attorney general’s office is “investigating non-criminal activities, which they are clearly not allowed to do,” attorney Steven Webster, representing the school board, said in court.

Grand jury investigations are generally conducted in secret. But Webster said in court that the issued subpoenas include requests for “every Facebook post” made by some school employees about the “Title IX policy,” which prohibits sex discrimination, and “the policy on transgender students.” He said the grand jury is also pursuing information from closed school board sessions. “It’s going to chill board members from doing things and saying things,” he said.

The parents of the first victim said the charged youth was “gender fluid,” prompting renewed attacks on a policy in Loudoun County schools that allows transgender students to use bathrooms that match their gender identity. That policy was adopted after the May assault; the perpetrator was described in criminal court as male.

Webster said that because the full school board itself has not been subpoenaed, a civil suit was the only way to challenge the scope of the investigation.

Webster also accused the attorney general’s office of interfering in the attorney-client relationship, including by reaching out to witnesses to access privileged material. Webster alleged that a state special agent told two school board members to “get your own lawyers” because “the school board is not looking out for their best interests.”

Popps called those allegations “absolutely incorrect” and “untrue.” More broadly, he said “the school board does not know what the special grand jury is doing; very few people know.” It’s “entirely inappropriate” for the school board to argue “that they can somehow divine the intent” of the probe from some subpoenas and witness interviews.

Plowman agreed, saying “it’s impossible to say whether an investigation is being made that involves solely civil or policy matters” as opposed to criminal wrongdoing. If there are criminal charges, he said, they can be fought through that process. And if the grand jury instead makes a report that includes policy recommendations, he said, it wouldn’t be “binding” on Loudoun. “That has no impact on the school,” he said. “They can thumb their nose at it.”

In a court filing last week, Assistant Attorney General Thomas J. Sanford asked that Monday’s hearing be closed because “public access … would play a negative role.” Privacy, he wrote, would “protect the proper functioning and secrecy of the Special Grand Jury.” The school board opposed that request, calling it “violative of the constitutional rights of the press and public.”

Plowman kept the hearing open, saying, “It’s not a grand jury proceeding.”

The mother of the first victim said after the court hearing that she was glad to see the investigation move forward. The Washington Post does not generally identify victims of sexual assault and is not naming the parents to avoid indirectly identifying their daughter.

“We are healing through this,” she said. “I want everybody, every person that did not protect the victim to be held responsible.”

The courthouse was ringed with signs posted by Kate Smith, a retired architect, describing Loudoun as a diverse and welcoming community, as she has at previous hearings.

“We’ve got a lot of people shouting a lot of negative messages,” said Smith, 65. “I hope the system will protect everyone that’s involved, and not make a stump presentation out of it. We’ve seen enough of that.”

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