FCPS

A lawsuit arguing that Fairfax County Public Schools officials failed to efficiently and properly respond to a student’s allegation of sexual assault will go to trial after a federal judge denied the county school board’s motion for summary judgment on June 10.

U.S. District Judge Liam O’Grady heard oral arguments on June 7 at the U.S. District Court for the Eastern District of Virginia in Alexandria.

Lawyers for the Fairfax County School Board argued that summary judgment should be granted, meaning that the case would be resolved without a trial, because its response to the plaintiff’s allegation “was not deliberately indifferent as a matter of law.”

“The Court finds that this is a deeply fact-intensive inquiry that is best suited for resolution by a jury,” O’Grady said in his order on the motion. “Because genuine issues of material fact remain, [the] Defendant’s Motion for Summary Judgment…is denied.”

An Oakton High School student identified in court documents only as Jane Doe filed a Title IX complaint against the Fairfax County School Board on May 23, 2018, stating that administrators did not take “meaningful and appropriate action” when she reported that another student had sexually assaulted her 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 education programs and activities that receive federal financial assistance.

Though she later told friends about the assault and the incident was reported to multiple adults, including Oakton’s band director and assistant principal, Doe says in her complaint that school employees or administrators did not contact her about the assault allegation until three days later.

Doe alleges that school officials treated her allegation dismissively and discouraged her from taking legal action. She remained in school but felt uncomfortable during band practices for the rest of the year, since the band director seated her next to her assailant.

The national legal advocacy nonprofit Public Justice filed the Title IX lawsuit against the school board on behalf of Doe and her parents.

“We’re very happy that, after years of the school board’s refusal to treat our client’s allegations with the seriousness they demand both in school and in court, this young woman will finally be able to have her very serious claims heard by a jury,” Correia & Puth attorney Linda Correia, who is serving as a co-counsel on the case, said.

“Tuesday, the court denied our motion for summary judgment,” FCPS spokesman John Torre said in a written statement. “The ruling simply means that the court concluded that this is a fact-intensive inquiry that should go to trial. FCPS satisfied our Title IX obligations in the way we responded to this incident.”

A jury trial for Doe’s case has now been scheduled for July 29.

The district court’s denial of the school board’s motion for summary judgment also opens the door for a decision on a motion for sanctions that the plaintiff’s legal team filed on May 17.

In a memorandum supporting its motion, the plaintiff says the discovery process revealed that the school board failed to preserve any formal statements from its investigation into the sexual assault allegation, including written statements by Doe, the alleged assailant identified as Jack Smith, and two witnesses.

The memo states that the defendant did not maintain records of sworn testimony collected by school security personnel from a teacher and a student who reported separately that Doe was “forced to do sexual things” on the band trip.

The school board also never documented the incident and subsequent investigation in FCPS’s Bullying and Harassment Management System, an electronic database designed to capture and preserve documents of bullying, discriminatory harassment, and sexual harassment allegations.

FCPS regulations in the school system’s student rights and responsibilities booklet state that school principals are responsible for investigating and documenting all reported incidents of bullying, discrimination, and harassment.

“We’re very concerned that they didn’t retain those documents, because they’re required to do so,” Correia said. “That’s important evidence to understand what they knew as they formulated their response to the reports of sexual assault that they received from students and from a couple of teachers.”

According to Public Justice, a record of its client’s original statement to FCPS is only available now, because her mother requested and retained a copy.

The plaintiff has also submitted screen-captured email and text exchanges as evidence in her lawsuit.

“The suggestion that FCPS intentionally destroyed documents is false, Torre said. “FCPS has produced more than 15,000 pages in this case. Some paper documents were inadvertently lost years ago, well before we had notice of the lawsuit.”

Emails from Mar. 12, 2017 between John Banbury, who was principal of Oakton High School at the time of Doe’s sexual assault allegation, and Michelle Taylor, who was Oakton’s assistant principal, show Taylor asking for a snow prediction, to which Banbury responded, “How many inches under the blanket or on the ground?”

In her Title IX complaint, Doe reported that she was sharing a blanket with a fellow band member when the older student moved his hand up her leg before putting his hands down her pants and forcing her to touch his genitals.

In moving for sanctions, the plaintiff has asked the U.S. District Court to preclude the school board from arguing at trial that its investigation “was not clearly unreasonable in light of the known circumstances,” since key written statements and interview notes were not preserved.

Correia says that having Doe’s case go to trial will give a jury an opportunity to send a message to the Fairfax County School Board about the urgency of sexual assault reports.

“It’s very troubling the way they [FCPS] responded,” Correia said. “I think our client would like to see a jury let the county school board know that they need to respond seriously when these issues come up.”

“FCPS has established a Title IX coordinator within our Equity and Employee Relations office. We are training FCPS staff about their roles and obligations – as required under the law - in reporting any allegations of sexual misconduct. We are vigorously investigating complaints that are filed and meeting our Title IX obligations – as was done in this particular case.,” said Torre.

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