US Supreme Court Filing Backs Ex-Fairfax Student's Title IX Lawsuit

FAIRFAX COUNTY, VA — A recent filing in the U.S. Supreme Court supports a former Oakton High School student's Title IX lawsuit against Fairfax County Public Schools over claims the student was threatened with discipline if she reported she was raped on a school outing.

The lawsuit claims that the former student, referred to in court records as "Jane Doe," was sexually assaulted by a 17-year-old male classmate while on a band trip to Indianapolis in March 2018. The victim was 16 at the time.

“This Court’s precedents confirm that a school may be liable under Title IX for educational harms inflicted on a student by the school’s deliberate indifference to sexual harassment even when those harms do not include additional harassment," U.S. Solicitor General Elizabeth Prelogar said, in a brief filed in the U.S. Supreme Court on Sept. 27.

"The Supreme Court had invited the solicitor general to weigh in on whether it should take up the case, which is the thing that the court sometimes does in cases where it believes that the United States might have an interest in its outcome because it's of public importance," said Alexandra Brodsky, Jane Doe's attorney of record at the Supreme Court and a staff attorney at Public Justice.

The school board had asked the Supreme Court to take up the case based on two legal questions.

"The first is this 'one free rape rule,'" Brodsky said. "Does the student have to show that she was actually assaulted again as a result of the school's of deliberate indifference?... Fairfax's second question is can a school avoid liability if its officials don't understand that a report that clearly alleges sexual harassment is describing sexual harassment, as opposed to some other type of conduct?"

The second question is more difficult to pin down, because the school board has changed many times what it's been arguing, according to Brodsky.

"We really hope that the court will take the solicitor general's concerns to heart about the merits of the case, why the case doesn't present issues that the court needs to review, and why this case is a particularly bad vehicle for considering those questions," she said.

In 2018, two of the victim's friends told Fairfax County school administrators and employees on the trip about the sexual assault, but no one from the school system checked in with the student, provided assistance, or apprised her of her rights during the remainder of the five-day trip, according to Public Justice, which is assisting Jane Doe with her case.

When Jane Doe notified school officials back home that she had been sexually assaulted, FCPS employees discouraged her from reporting the matter to police and warned her she might be disciplined for what happened during the band trip, according to Public Justice.

School officials never notified the victim's parents about what had occurred either and led them to believe their daughter might be punished for having engaged in consensual activity while on the trip, according to Public Justice.

The lawsuit claims that FCPS' failure to take meaningful action on the victim's report of sexual assault violated Title IX and demonstrated a pattern of ignoring student-on-student sexual harassment. Although the school board initially tried to have the case dismissed, it went to trial.

In Aug. 9, 2019, a jury found that Jane Doe had been sexually assaulted and "that the harassment was so severe, pervasive and objectively offensive, as to deprive her of educational opportunities," according to the U.S. Solicitor General.

However, the jury determined that FCPS was not liable because it could not find the school system had "actual knowledge" that the incident had occurred and didn't address whether school officials acted with "deliberate indifference" to the harassment Jane Doe reported, according to Public Justice.

Jane Doe appealed the decision with the U.S. Court of Appeals for the Fourth Circuit, which found “that a school’s receipt of a report that can objectively be taken to allege sexual harassment is sufficient to establish actual notice or knowledge under Title IX — regardless of whether school officials subjectively understood the report to allege sexual harassment or whether they believed the alleged harassment actually occurred.”

The court also determined that a student who reports a sexual harassment does not need to experience further harassment after encountering indifference from the school in order to make a Title IX claim — what some describe as the "one rape rule."

After the Fourth Circuit denied FCPS' petition for a rehearing, the school system filed a petition of cert on Dec. 30, 2021, requesting the Supreme Court to take up the case.

“We are grateful that the United States has opposed the school board’s petition for the Supreme Court to take up Jane Doe’s case and adopt a ‘one free rape rule,' Brodsky said, in a statement. "As the Solicitor General powerfully explained, Fairfax’s extreme positions are legally wrong and would gut survivors’ civil rights. That’s why no court of appeals has adopted the interpretation of high school students’ Title IX rights that Fairfax asks the Supreme Court to adopt."

Patch reached out to the school system for a comment about the solicitor general's filing and received this response:

"We will be filing a response brief and will await the Supreme Court decision as to whether they will hear the case," according to an FCPS spokesperson.

Related:

• Court Reinstates Sexual Assault Lawsuit By Oakton High Student
• Oakton Student Sues Over Sexual Assault On Band Trip