Opinion: FCPS Asks Supreme Court to Reinterpret Title IX

By Shatter the Silence Fairfax County Public Schools
January 12, 2022

In the week between Christmas and New Year’s, Fairfax County Public Schools (FCPS), and its highly paid lawyers at Hunton Andrews, quietly asked the Supreme Court of the United States to gut Title IX.

Fairfax County is asking the Supreme Court to drastically reinterpret Title IX. Title IX is the law that protects students from discrimination because of “sex” which includes sexual misconduct. Under current law, a school must appropriately respond to sexual harassment or assault that it has “actual knowledge” of, which usually arises when a student reports. Once a school has knowledge, they must investigate and respond appropriately.

A local grassroots nonprofit, Shatter the Silence Fairfax County Public Schools (FCPS) is fighting back, launching a petition that demands that FCPS drop the baseless appeal and take civil rights seriously.

“Fairfax County Public Schools has a problem with systemically mishandling sexual harassment, assault, and civil rights in general. It also admits it has a human trafficking problem in its schools. It’s disappointing that FCPS, rather than creating safe and inclusive schools, is spending millions of taxpayer dollars trying to destroy Title IX and silence survivors.” said a spokesperson from Shatter the Silence FCPS. “We urge all concerned students, parents, and citizens to sign our petition and visit our website to fight back, demand FCPS drop this baseless appeal, and call for an independent investigation into FCPS.”

If FCPS wins, schools will not be responsible if they fail to appropriately investigate sexual misconduct as long as the student is not subsequently victimized. In a scathing judicial opinion, Judge James Wynn claimed that FCPS was asking for schools to get “one free rape” before they face liability.

In the current supreme court challenge, Jane Doe v. Fairfax County School Board, a student sued the school board after she was allegedly sexually assaulted on a field trip with the band. Rather than investigating her assault, the school did almost nothing.

“FCPS is often considered a national leader in education,” explained Shatter the Silence FCPS. “In recent years, we have seen examples of school districts systemically ignore their Title IX obligations. When it comes to mishandling sexual misconduct, FCPS is sadly a national leader, as well.”

In 2014, FCPS entered into a sweeping settlement with the US Department of Education’s Office of Civil Rights (OCR) that revamped how the school district was supposed to handle sexual assaults and harassment in school. Despite this, there have been 13 subsequent OCR settlements for FCPS’s mishandling of students’ civil rights, including further allegations that the district failed to appropriately respond to sexual misconduct. There are an additional three investigations about sexual misconduct that remain ongoing.

An NBC news investigation revealed that FCPS failed to revoke the teaching licenses of educators that sexually abused children, leading to at least some going to other districts where they hurt more children. In just the past year, two separate principals have been criminally charged with failing to report suspected child sex abuse and mistreatment, a misdemeanor in Virginia.
FCPS students claim to have reported at least 870 incidences of sexual misconduct in school last year. Yet FCPS only reported 50 to the state department of education, as it is required by law. It initiated formal charging proceedings against just 20 assailants.

Too often, FCPS instead engages in retaliation—cutting students from the basketball team who complained about a coach sexually harassing them, to filing meritless SLAAP/intimidation lawsuits against parents of disabled students who made records requests. In fact, FCPS even fired its own auditor for reporting its alleged misconduct—so imagine how it retaliates against kids.

When retaliation fails, FCPS has paid Washington law firm Hunton Andrews millions in taxpayer money to use legal gimmicks to silence survivors. FCPS lost another recent appeal where it argued that filing a lawsuit under a pseudonym is unconstitutional. That lawsuit was filed by a student who claimed the school did nothing after she was gang raped. FCPS also tried to argue that disabled students handcuffed, locked in rooms, and dragged across the floor had no “standing” to sue, or that they suffered no legal injury. Courts rejected both these arguments.

“FCPS’s actions are especially disappointing given it vocally claims that “equity” is its primary guiding principal, as laid out in its “One Fairfax” policy. Unfortunately, FCPS’s actions demonstrably show that it is not concerned about equity, safety, or civil rights at all.” Said Shatter the Silence FCPS.

In addition to calling on FCPS to drop the appeal, Shatter the Silence FCPS is calling on the Virginia Attorney General and the United States Department of Justice to open their own civil rights investigation into FCPS.

“Every student deserves a safe and discrimination free learning environment. When schools fail at this basic task, there must be accountability at all levels.”

Shatter the Silence Fairfax County Public Schools is a volunteer-run, nonpartisan, nonprofit organization founded by survivors, parents, and students of Fairfax County Public Schools. We seek to raise awareness, and demand accountability, about civil rights violations that occur in FCPS. Visit our website, www.shatterthesilenceFCPS.org, or follow us on twitter @shatterFCPS, to learn more.