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Jury sides with Fairfax schools in case of alleged sexual assault on band trip

The federal courthouse in Alexandria (Gerald Martineau/The Washington Post)

The Fairfax County School Board is not responsible for sexual harassment that occurred on an Oakton High School band trip in 2017, a jury decided Friday.

The panel in Alexandria federal court found that the girl was sexually harassed and that the experience was so severe as to deprive her of educational access. But it found that the school board did not have “actual knowledge” of what occurred and was therefore not liable.

One juror said after the verdict that the eight-member panel initially was evenly split over whether officials had to know whether sexual harassment had occurred or just know it was alleged, and what evidence they could consider. They were leaning in the girl’s favor until Friday morning, Alexander Walsh said, when guidance from the judge convinced them they needed “direct evidence” school officials knew for a fact that she was harassed.

After rendering the verdict, the jury met briefly with the judge and again asked him about actual knowledge. The answer they got was broader, Walsh said, upsetting him and several other jurors.

“I know for a fact I made the wrong choice,” Walsh, 27, said. “It already broke our hearts saying no to that question. . . There’s not a step they handled well. There isn’t a chance to assign culpability to the school system.”

He said the group never discussed the final issue, whether the school board’s response to the girl was “deliberately indifferent.”

“This was a very unfortunate incident involving two students, and we are grateful” for the verdict, Fairfax schools spokesman John Torre said in a statement.

Fairfax County Public Schools has been operating since 2014 under a consent decree with the Department of Education to improve its handling of sexual misconduct cases. The girl claimed her civil rights were violated under Title IX, which bars sex discrimination in federally funded schools.

Judge Liam O’Grady expressed his sympathies for the plaintiff after the jury departed.

“You’re a courageous young woman,” he told her. “I’m very proud of you. . . . I hope you put all this behind you. You have the ability, I know, to focus on the future.”

Her attorney Linda Correia said after court that what the girl “wanted from the beginning was to shine a light on the terrible response of school administrators. Hopefully the testimony that came out here will . . . compel them to make changes.”

The girl argued that while it took her a long time to label what happened as a sexual assault, administrators should have understood that she was violated when she said a boy put her hand on his genitals under a blanket they shared and penetrated her with his hand without consent. Instead, she testified, the school officials questioned her account, causing her physical and mental distress.

“Sixteen-year-olds, and children of all ages, use the words that are accessible to them, and that isn’t always the term ‘sexual assault,’ ” plaintiff’s attorney Lauren Khouri said in her closing argument. “These 16- and 17-year-olds were able to recognize it, but these adults who are trained to couldn’t.”

Three friends with whom the girl spoke about the incident testified that they went to authority figures to report what they understood as an assault.

The school board said it did all it could for the girl with the information it had. The boy maintained that what happened was consensual.

The Washington Post is not naming the boy, who was 18 at the time and is now 20. He was not charged with a crime. The Post also generally does not identify individuals who say they are the victims of sexual assault without their consent. The girl, who was 16, is now 19.

“There’s only two people even now in 2019 who know what actually happened under the blanket,” defense attorney Sona Rewari said in her closing argument. “It’s just as gray now as it was then in terms of whether you could label this a sexual assault.”

After talking to the girl and the boy, school officials determined that a sexual assault did not occur and took no disciplinary action. They offered the girl counseling and allowed her to retake some tests or take them at home.

While her parents and friends say she lost weight and the ability to concentrate, the girl stayed in the school’s highest-level band class and her grades improved overall.

“The teachers bent over backward, the school was ready to do more,” Rewari said in closing arguments. But “punishing” the boy by removing him from band, she said, would have been unfair: “They both worked hard to be in this band class.”

The school principal and officer who made sexual jokes in emails about what had happened on the bus were under the impression that it was entirely consensual, Rewari said.

“Was it inappropriate? Absolutely,” she said. “But was [the principal] mocking a sexual assault? Absolutely not.”

Khouri countered that the joking “reflects on how seriously they took this investigation.”

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