The Fairfax County School Board will not have to pay damages to a former Oakton High School student who sued the public school district for its handling of a sexual harassment complaint, a jury determined on Aug. 9.
The jury found that the student, who is identified in the lawsuit as Jane Doe, had experienced sexual harassment severe enough to prevent her from getting equal access to educational opportunities and benefits, but they decided that the school board was not fully aware of the incident and therefore could not be held liable.
“This was a very unfortunate incident involving two students, and we are grateful the jury determined we acted appropriately,” Fairfax County Public Schools spokesman John Torre said in a statement.
The jury issued its verdict to U.S. District Court Judge Liam O’Grady in Alexandria after two days of deliberations prolonged in part by confusion over what constituted “actual knowledge” of the sexual harassment that Doe allegedly experienced.
Alexander Walsh, one of the jurors on the case, told the Fairfax County Times that the group could not agree on whether actual knowledge meant the school board needed to know for a fact that sexual harassment had taken place or to have just been aware of the allegation.
When the jury asked the judge for clarification on Aug. 8, they received an explanation the following morning that led the jurors to believe there needed to be “direct evidence” that school officials knew Doe had been sexually harassed, according to Walsh.
The discovery portion of the lawsuit uncovered texts, emails, and other documents showing that officials had discussed Doe’s allegation, sometimes in ways that the plaintiff argued illustrated a disregard for the seriousness of her complaint, but based on the judge’s definition, the jury ultimately decided that was not enough to prove the school board had actual knowledge of the assault.
When the jury briefly met with the judge after rendering its verdict, however, he gave a broader interpretation of actual knowledge that suggested the school board only needed to be aware that a sexual harassment complaint had been made.
Walsh says the judge’s new explanation left him “a wreck” and had another juror “sobbing.”
Because the jury determined that the school board did not have actual knowledge of the alleged sexual harassment, they could not address a subsequent question that asked if the school board had “acted with deliberate indifference in response to such known sexual harassment” of Doe.
While Walsh says he was split on whether he would say the school board acted with deliberate indifference, he expressed frustration at how the confusion over actual knowledge prevented the jury from discussing the question at all.
“I feel like this needs to be noted because one of our only chances to hold the school board accountable for SOMETHING was influenced by what I feel was bad information,” Walsh said in an email to the Fairfax County Times.
Correia & Puth attorney Linda Correia, who represented Doe in the lawsuit, says she saw reports of the jury’s confusion but felt she should not comment on them.
Doe filed a Title IX complaint against the Fairfax County School Board on May 23, 2019 stating that administrators did not take “meaningful and appropriate action” when she reported that another student had sexually assaulted her while on a bus during a school band trip in March 2017.
Title IX of the Education Amendments of 1972 prohibits exclusion or discrimination on the basis of sex in educational programs and activities that receive federal financial assistance, making it a common route for prosecuting sexual harassment and assault cases in public education.
In her complaint, which was filed by the legal advocacy nonprofit Public Justice, Doe said that she was sharing a blanket with a male student identified only as Jack Smith when he moved his hand up her leg, touched her genitals and breasts, and put his hands down her pants without her consent.
Doe, now 19, was 16 at the time of the alleged assault. The male student was 18 and is now 20.
Though she later told friends about the incident and it was reported to multiple adults, including Oakton’s band director and assistant principal, Doe said in her complaint that school employees and administrators did not contact her about the allegation until three days later.
She alleged that school officials treated her claims dismissively, discouraging her from taking legal action.
In her complaint, Doe and her parents requested a trial by jury and asked for the Fairfax County School Board’s conduct to be found in violation of Title IX. They sought injunctive relief as well as compensatory damages for expenses incurred as a result of the sexual assault, the deprivation of equal access to educational opportunities, and emotional suffering.
Evidence found during discovery include emails between Oakton High School administrators with jokes in apparent reference to the alleged sexual assault, though defense attorney Sona Rewari argued that the officials were under the impression at the time that the encounter had been entirely consensual, according to the Washington Post.
FCPS maintains that its investigation of Doe’s complaint determined that a sexual assault did not occur and no disciplinary action was needed against the male student, though officials offered Doe accommodations like counseling and the opportunity to retake tests.
“Our teachers and administrators deal with and resolve difficult situations every day,” Torre said. “FCPS will continue to vigorously investigate complaints – as we did in this case – and take appropriate action whenever it is warranted.”
While the verdict was not what her client wanted, Correia says she was encouraged by the jury’s finding that Doe had been subjected to sexual harassment and that “his conduct was so severe, pervasive, and offensive that it affected her access to her education.”
She admits that she was “very surprised” by the determination that the Fairfax County School Board did not have actual knowledge of the sexual assault allegation.
“The testimony from the school administrators was that they had learned from several students and from two teachers that there was an allegation of sexual harassment by Jack Smith against Jane Doe,” Correia said. “We thought that the jury's decision on that question was concerning.”
Correia says Doe’s legal team is exploring their options for possible next steps, but she remains concerned by testimony from the trail that said FCPS officials had failed to properly document their investigation into Doe’s complaint.
The plaintiff argued that the school board had never documented the incident and subsequent investigation in FCPS’s Bullying and Harassment Management System, an electronic database for storing records of bullying and harassment allegations.
Written statements from Doe, Smith, and two witnesses and sworn testimony from a teacher and a student who separately reported the alleged sexual assault were also not preserved, according to a memorandum that Doe filed in support of a motion for sanctions on May 17.
In June after O’Grady ruled that the lawsuit would go to trial, Torre told the Fairfax County Times that any suggestion FCPS intentionally destroyed documents is “false,” noting that the school system had produced more than 15,000 pages in the case.
He acknowledged that “some paper documents were inadvertently lost years ago.”
“It’s very concerning that they didn’t retain important files,” Correia said. “They still haven’t explained what happened to those, and this electronic system was designed to make sure that this didn’t happen…We don't know how many other cases like it there are.”