Fairfax County Public Schools has asked the Supreme Court to hear a case that an appeals court judge said amounted to schools asking to get “one free rape” before staff could be responsible for inaction.
The National School Boards Association (NSBA) wrote a “friend-of-the-court” brief supporting Fairfax’s position. NSBA previously wrote a letter comparing parents to potential domestic terrorists, specifically singling out a father who was angry at the school board because his daughter was raped at school.
The schools groups are hoping the high court will intervene to block a case brought by a teenage girl, known as Jane Doe, against the school system from going to trial.
The case places the NSBA and the Virginia school district up against the National Women’s Law Center, the Human Rights Campaign, the National Black Women’s Reproductive Justice Agenda, and other feminist, liberal, or survivors-rights groups, all of whom filed an opposing friend-of-the-court brief. National groups have a strong interest in the case because the legal question could set a precedent that would insulate school systems and staff from liability for failing to take action after they learn about an alleged sexual assault on school grounds.
Shatter the Silence, a group of survivors of sexual assault within Fairfax schools and their families, said in a statement: “The Fairfax County School Board has no shame. Board members plaster their equity commitments on Twitter and pass empty resolutions claiming that inclusion and civil rights guide their governance. In reality, they spend taxpayer money asking the Supreme Court to enshrine a ‘one free rape’ safe harbor for schools that fail to properly investigate allegations of student sexual abuse.”
FCPS said in a statement that it asked the Supreme Court to hear the case in order to help teachers. “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,” it said.
“To fail to challenge the Fourth 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,” it added. “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.”
However, in its petition to the court filed December 30, it described the issue differently, saying the high court would be settling the question of “Whether the requirement of ‘actual knowledge’… is met when a [school] lacks a subjective belief that any harassment actionable under Title IX occurred.”
That’s a reference to school officials’ duty to investigative under Title IX after learning of an incident. Title IX attorney Monica Beck, who was not involved in the case, previously told The Daily Wire the district was claiming that being told of an alleged incident was not enough to clear that bar, creating a catch-22.
“’We didn’t have ‘actual knowledge’ [and therefore have to investigate according to Title IX rules] because we didn’t actually know a rape occurred?’ If you don’t investigate, how are you ever going to know for sure that it happened?” she said.
On June 16, a three-judge panel of the Fourth Circuit Court of Appeals, led by Judge James Wynn, ruled against FCPS, and ordered that Doe should have her day in court.
On August 30, it declined FCPS’ request to rehear the case with a larger group – known as en banc – with Wynn contradicting FCPS’ characterization of the issue, writing that no one was contending “that a school can face ‘retroactive’ liability for the assault itself when the assault was committed by another student and the school had no prior warning it would occur… [rather,] a school may be held liable for its own behavior in response to a peer assault.”
“Surely a student is subjected to discrimination on the basis of sex when they report a sexual assault by a fellow student on school property and are met with nothing more than a collective shrug of the shoulders—or, worse still, with accusatory questions or flat-out blame,” he wrote.
The schools argued, he said, that “Title IX does not make clear that schools may be held liable for their response to a single instance of sexual harassment,” but “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.’”
“That’s why the Department of Justice, Department of Education, and several of our sister circuits have correctly concluded that a single, severe instance of peer-on-peer harassment can lead to liability for the school where the school’s response (or lack thereof) leaves the victim vulnerable to additional harassment,” he continued.
He described the background of the case:
This case involves a sexual assault that a jury found took place on a school bus during a band trip. The plaintiff, “Jane Doe,” sat next to “Jack Smith,” an older student. Doe alleges that Smith repeatedly touched her breasts and genitals and penetrated her vagina with his fingers despite her efforts to physically block him, and that he also repeatedly put her hand on his penis even after she moved it away. She testified at trial that during this incident, she felt so “confused,” “shocked,” and “scared” that she was “frozen in fear the whole time.”
Doe, her friends, and her parents repeatedly reported the incident to the school. Yet a reasonable jury could conclude that these reports were met with deliberate indifference. To summarize just a few pieces of evidence the jury could view in Doe’s favor: school officials took no action to protect Doe or to offer emotional support to her during the five-day band trip; instead, the principal made an inappropriate joke about the incident in an email; after the band trip, the school’s Safety and Security Specialist asked victim-blaming questions such as what Doe was wearing and why she did not scream; and school officials discussed with Doe (but not with Smith!) the possibility of being disciplined for engaging in sexual activity on a school trip
Laura Jane Cohen, a Fairfax school board member who has used her perch to advocate for gender issues such as transgender and women’s rights, but whose campaign was also backed by teachers unions, did not return a request for comment on the board’s decision to fight Doe all the way to the Supreme Court.
The National School Boards Association did not return a request for comment.
The law firm representing Fairfax is Hunton Andrews LLP, which formerly employed failed candidate for Virginia governor Terry McAuliffe, and is a successor of the firm that played a key role in arguing for school segregation in what became the Brown vs. Board of Education Supreme Court case.
In its arguments in the case, FCPS said the precedent set in an earlier case called Baynard would “require proof that [the principal] had actual knowledge, subjectively measured, that Jane was sexually harassed.” Baynard is a case in which a principal was repeatedly told that a teacher was a child molester, then a librarian told a principal she saw a child sitting on his lap, but the principal “naïvely believed [the teacher]’s assurance that he was only having an ‘innocent father-son chat.’” The principal was therefore not liable because she did not believe he was molesting a child even if she should have. Under that precedent, school officials’ “subjective” judgment, not what they are actually told, is key, Hunton argued.
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