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Supreme Court turns away Fairfax schools’ appeal of sex assault suit

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The Supreme Court has declined to hear the Fairfax County School Board’s appeal of a lawsuit alleging it failed to adequately investigate an alleged 2017 high school sexual assault case, meaning the case will go to trial again and marking a victory for the plaintiff.

The suit was filed in 2018 by an anonymous plaintiff, known in court documents as Jane Doe, who said she was sexually assaulted by a male student during an Oakton High School band trip the year before. Doe alleged in her suit that the Fairfax school board failed to properly investigate the incident and that the school system’s response was “flawed at every stage of the process.” Fairfax’s handling of the incident, Doe further alleged, caused her emotional, academic and physical harm, meaning school officials violated her rights under Title IX, the law that forbids sex discrimination in federally funded schools. Doe asked for a declaration that Fairfax had violated Title IX and for unspecified damages.

The school board, however, argued that the encounter “was not a sexual assault” and that school personnel “took meaningful and appropriate action” to address the incident.

In 2019, a jury panel in Alexandria federal court found that Doe had been sexually harassed and that the incident, and the school’s response, deprived Doe of her rightful access to education. But the panel ultimately ruled in Fairfax’s favor, finding that the school board was not liable for the sexual harassment because it did not have “actual knowledge” of what occurred on the bus trip.

Doe requested a new trial, arguing the evidence did not support the verdict, and the U.S. Court of Appeals for the 4th Circuit granted her request. In December 2021, attorneys for Fairfax schools asked the Supreme Court to intervene. School lawyers were hoping the court would find in the district’s favor under a previous ruling establishing that a school district is only liable under Title IX in cases where it “subjects its students to harassment [and] is deliberately indifferent to sexual harassment.”

The Supreme Court’s decision on Monday not to take the case is a blow to the school district. And it means a second trial for Doe. As happens frequently, the court turned down the case without comment.

Alexandra Brodsky, an attorney with the nonprofit legal advocacy group Public Justice, which is representing Doe, wrote in a statement Monday that her client is relieved.

“Jane is ready for her new trial, and is confident she will prevail,” Brodsky wrote. “The question for Fairfax is whether it wants to risk a loss, and millions of dollars in attorneys’ fees, in order to force a young survivor to relive, yet again, traumatic events she is working to put behind her.”

Fairfax schools spokeswoman Julie Moult wrote in a statement Monday that the high court is leaving “important legal questions unsettled” by refusing to hear the case and establish whether “schools can be sued in private lawsuits for more damages under Title IX when it is undisputed that their actions have not led to any harassment.”

Moult added, “FCPS could not have foreseen the incident between two high school students in March 2017, and … no harassment happened after school administrators responded. … If the case is retried, FCPS expects to again show that its staff went to extraordinary lengths to provide support to the plaintiff after the incident.”

The lawsuit centers on a five-day trip the high school band took in March 2017 to Indianapolis. Doe, who was 16 at the time, previously told The Washington Post that a male high school senior sat next to her on the bus and covered them both with a blanket. The lawsuit says the male student allegedly forced the girl to rub his genitals, penetrated the girl with his fingers and grabbed her breasts.

The girl did not report the alleged attack on the band trip because of trauma and fright, her lawyer previously told The Post — but the girl did tell several friends, who ultimately reported the incident to school employees. That led the school system to open an investigation, interviewing both Doe and the male student, who maintained that the encounter was consensual.

The Post is not naming the male student, who was 18 at the time and was never charged with a crime. The Post does not identify victims of sexual assault without their consent.

After speaking with Doe and the male student, Fairfax school officials decided the encounter was not a sexual assault and took no disciplinary action, although the school system offered Doe counseling and gave her the chance to retake some tests and complete other exams at home. Meanwhile, the school’s principal, vice principal and a school resource officer exchanged sex jokes via email and text making light of the incident.

Doe’s complaint says Fairfax conducted a “sham investigation” and that school officials did not notify the girl’s parents before questioning her or inform Doe of her rights under Title IX.

The girl’s parents and friends said she lost weight and the ability to concentrate in the aftermath of the bus trip. School lawyers have countered that officials did everything they could to accommodate the student. They have pointed out that Doe remained in the school’s highest-level band class and that her grades improved after the bus trip.

It is not the first time the district has faced scrutiny over its handling of sexual assault cases. In 2014, the school system voluntarily entered into an agreement with the Education Department’s Office for Civil Rights to reexamine its methodologies and policies for handling sexual harassment allegations between students, although Fairfax did not admit it had violated any regulations at the time.

The issue of sexual assault in schools has become a controversial and prominent topic in Northern Virginia, after neighboring Loudoun County Public Schools last year transferred a student who had committed one sexual assault to a second campus, where the student committed a second assault. Loudoun officials’ handling of that case has drawn ire from parents and politicians, including Gov. Glenn Youngkin (R).

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