The Fairfax County School Board (FCSB) is petitioning the U.S. Supreme Court to review its case against a former Oakton High School student, referred to with the pseudonym “Jane Doe,” to decide whether schools can be held financially liable for harassment and assault under Title IX, the federal civil rights law which prohibits sex-based discrimination in schools and education programs.
The school board and Public Justice, which is representing Doe, both believe there are specific consequences should the other prevail in the Supreme Court. For the board, a win for Doe is something that would set a precedent for unnecessary litigation against schools: FCSB believes that, if the current ruling holds, a precedent could be set where schools are held financially liable for a single instance of student-on-student misconduct. For Doe’s legal team, a ruling in favor of the board would gut Title IX protections for students.
Students across Fairfax County Public Schools (FCPS) have walked out of classrooms in the wake of the school board’s petition. Students at Centrevillle High School, Mount Vernon High School in Alexandria, Madison High School in Vienna, and South County High School in Lorton protested the school board’s appeal to the highest court, as well as the issue of alleged sexual assaults within FCPS.
On a school field trip to Indianapolis in March 2017, two Oakton High School students, referred to in court documents as “Jane Doe” and “Jack Smith,” spent time side by side on a school bus, and during a nighttime bus ride engaged in “mutual sexual touching for 15-20 minutes,” according to the FCSB’s petition to the Supreme Court. The 4th Court’s majority opinion after deciding in favor of Doe in June 2021 tells a different story—where the actions on the bus ride were never “mutual,” but harassment against Doe.
While chaperones were notified of the incident by Doe and Smith’s peers, they decided to not pursue action until the trip returned. From there, all parties sat down with Jennifer Hogan, Oakton’s assistant principal, to discuss what happened.
“I moved my hand away but [Smith] moved my hand back onto his genitals. I was so shocked and scared that I did not know what to say or do. He then started to move his hands towards me and I tried to block him but he still put his hands up my shirt and down my pants,” Doe said in a written statement to Hogan.
After listening to Smith, Doe, and their peers—as well as continuing to receive messages from concerned community members—Hogan and Oakton High School’s principal, John Banbury, determined that they did not have enough evidence to label the situation as a sexual assault. They also decided against disciplining either Smith or Doe for engaging in sexual activity on a field trip.
Doe’s mother pushed back against this determination. In a meeting with Hogan, she said that Smith’s touching of Doe was nonconsensual and thus “a sexual assault.” Hogan responded that the administration concluded that what happened was not a sexual assault.
Doe received professional counseling for multiple weeks and was diagnosed with adjustment disorder with anxiety. She sat out of the band class she shared with Smith, often opting to go to a practice room by herself, because she was terrified of seeing or being near him. She found it hard to fully participate and enjoy her band classes even after Smith had graduated. Doe’s “parents requested, and her teachers provided, a number of accommodations to help Doe cope with the psychological and emotional trauma resulting from the alleged sexual assault,” according to the 4th U.S. Circuit Court of Appeals’ published opinion.
The Legal Battles
The two sides differ on what the legal debate at hand is, exactly. FCSB notes in its petition to the highest court that the questions presented in the case are whether a school may be liable in damages in a private action when their “response did not itself cause any harassment actionable under Title IX,” and if the requirement of actual knowledge is met when a school “lacks a subjective belief that any harassment” under Title IX occurred.
But Doe’s side sees the argument differently. Alexandra Brodsky, who is representing Doe with Public Justice, says—and wrote in an op-ed in the Fairfax County Times—that the school board is misrepresenting the legal issue at hand. She says the lawsuit has never been about the school being held liable for alleged sexual assaults, but rather its response to such allegations.
While the case currently sits in the Supreme Court’s docket as Public Justice prepares its response to the school board’s petition, it has been through a journey in the lower courts that has now set it up for a potentially precedent-setting high court decision.
In May 2018, Doe sued FCSB for damages under Title IX, alleging that school officials were deliberately indifferent when she told them what occurred during the field trip’s bus ride. The case went to trial in July 2019.
To determine that the school was liable for its response to her alleged harassment, Doe had to show that: 1) She was a student at an educational institution receiving federal funds, 2) She suffered harassment severe enough that it deprived her of equal access to the educational opportunities or benefits provided by the school, 3) The school had actual knowledge, also referred to as actual notice, of the incident through an official who has authority to address the alleged harassment, and 4) The school acted with deliberate indifference to the alleged harassment.
The jury found that school officials did not have actual knowledge of the harassment. Doe’s claim was thrown out.
But it didn’t end for Doe after the jury’s judgment. The National Women’s Law Center filed an amicus brief on Doe’s behalf to the 4th Circuit, saying that a proper definition of what constitutes actual knowledge of sexual harassment should be given, arguing that the district court confused jurors with its initial instructions and clarifications of the term.
The 4th Circuit agreed, and the appellate court sided with Doe in June 2021 and remanded for a new trial. The 4th Circuit’s decision says that school officials do not need to hold a belief that any assault or harassment occurred for them to have actual knowledge of an incident, but that a complaint itself is enough—something the school board is questioning in its Supreme Court petition.
FCSB asked for a rehearing in August, which was denied.
In keeping with a Supreme Court decision made in Davis v. Monroe County Board of Education, the 4th Circuit said in its order denying the rehearing that institutions can be held liable when their response to complaints of sexual harassment exposes students to possible future harassment, not just causes harassment itself.
“Thus, the statute itself makes plain that a school may be held liable when it makes a student vulnerable to sexual harassment by their peers, such as by failing to respond appropriately after learning of an initial incident of sexual assault. In other words, schools do not get ‘one free rape,’” the appellate court says.
The school board’s petition to the Supreme Court says that lower courts have been divided over the limitations set forth in Davis, saying that it’s only when further harassment occurs that schools can be held liable for their response to alleged harassment. In the instance where the Supreme Court agrees with the 4th Circuit, FCSB and others believe this could pave the way for unnecessary private litigation.
In its petition, the school board asks the Supreme Court to consider whether schools can be held liable for damages when their response did not cause harassment under Title IX, and if actual knowledge is met when the school does not believe that any harassment occurred.
Brodsky says that the school system has a misunderstanding of the reality for student survivors on the ground.
“Some people assume the only way a school could hurt a student … is if it caused further harassment,” she says. But, she adds, even absent of the recurrence of another harassment or assault, “the school’s deliberate indifference can serve to exclude that student from school.”
FCPS gave the following statement to Fairfax Now: “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 4th 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.”
Brodsky says that the school system’s statement that its petition to the Supreme Court is necessary to protect educators from being held financially responsible for student-on-student misconduct is “flatly untrue.”
“Only institutions – not individuals – can be liable under Title IX. That’s not a matter of interpretation, but rather a statement of established law. For example, the Supreme Court wrote in a 2009 opinion: ‘Title IX reaches institutions and programs that receive federal funds … but it has consistently been interpreted as not authorizing suit against school officials, teachers, and other individuals,’” she says.
When asked to clarify if the board believes individual teachers can be held financially liable for student-on-student misconduct under Title IX, a spokesperson for FCPS said, “The question remains as to whether Congress intended America’s public schools to be held financially responsible for student-on-student misconduct that they had no way to foresee and did not cause. Our teachers are our schools.”
On February 7, the Independent Women’s Law Center filed an amicus brief on behalf of FCSB, saying that the 4th Circuit stretched a previous decision set by the Supreme Court in Davis in saying that the school board could be held liable for Doe’s harassment.
IWLC says that this case could set a troubling precedent for educational institutions at all levels if the Supreme Court finds that schools can be found financially responsible for Title IX misconduct in certain instances, noting that schools could be hit with unnecessary litigation.
“But the Fourth Circuit’s holding also sets a troubling precedent that, if permitted to stand, will saddle schools at all levels of the educational system with excessive, unnecessary litigation and compliance costs; jeopardize due process and free speech rights of students; and do all of this without achieving any meaningful improvement in protecting students from sexual harassment or assisting survivors,” IWLC writes in the brief.
Other groups have stepped in on behalf of the school board. In a separate amicus brief also filed February 7, the Virginia School Boards Association, North Carolina School Boards Association, and South Carolina School Boards Association echo that the 4th Circuit’s interpretation threatens to “saddle public schools with crippling liability and litigation.”
But those on Doe’s side believe it’s not educational institutions at risk here. Brodsky says that the repercussions for students in the instance where the court sides with the school board is something she “cannot overstate how devastating … it would be for student civil rights across the country,” noting that implications of a ruling in favor of the school board is not limited to sex discrimination. Brodsky says that courts and laws will often look to Title IX precedents to make decisions in instances when students may be facing discrimination on the basis of race, sexual orientation and gender identity, and disability; she, along with other Public Justice staff, is worried that a ruling for the school board could cut varying kinds of protections for students.
“The good news is that Jane is not only ethically and morally correct, she’s legally correct,” Brodsky says. “I’m hopeful that if the court grants the case they will recognize that Jane has the better legal argument.” If not, Brodsky is concerned that “Fairfax” could become synonymous with gutting Title IX.
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