A new lawsuit alleges that Fairfax County Public Schools officials failed to respond promptly and appropriately to an Oakton High School student’s report of sexual assault.
A complaint filed by Public Justice on behalf of the student and her parents against the Fairfax County School Board was filed May 23 with the U.S. District Court for the Eastern District of Virginia in Alexandria. In the suit, the plaintiff--identified only as Jane Doe--alleges that she was sexually assaulted by a fellow student while on a school band trip in March 2017.
“Doe,” a minor, says that FCPS administrators and employees present on the trip ignored reports of the assault from multiple students and neglected to implement safety measures or to offer her assistance.
Upon returning to Oakton High School, the student alleges that administrators threatened to discipline her for the incident, questioned her without informing her parents that she had reported being sexually assaulted, and discouraged her from reporting the assault to police or taking legal action.
“As a result of FCPS’s failure to take meaningful and appropriate action to address her sexual assault, Jane Doe struggled academically, emotionally, and physically for the remainder of the school year,” the complaint says. “She continues to struggle with the aftermath of the sexual assault and the school’s failure to take appropriate action to help her.”
According to the complaint, Doe, now a senior honors student set to graduate this June, was sexually assaulted on the night of Mar. 8, 2017 while on a bus trip to Indianapolis, Ind., where the Oakton High School band was going to participate in an exhibition as part of a five-day excursion.
Doe, who was 16 at the time, sat next to a male senior Oakton student and fellow band member. When he said that he was cold, she shared a blanket with him, but he moved his hand up her leg and toward her crotch without her consent.
The complaint says that the male student forced Doe to touch his genitals, put his hands down her pants, penetrated her, and grabbed her breasts.
A FCPS teacher and numerous chaperones, including the assailant’s mother, were on the bus at the time, but Doe was reported as being “frozen with fear” and “suffered in silence.”
The female student later told a handful of friends about the assault and asked them not to tell anyone else.
However, one student reported Doe’s assault to Oakton High School assistant principal Michelle Taylor, who supervisors the school’s fine arts program and accompanied the band on its trip to Indianapolis.
A second student reported the incident to a math teacher on Mar. 10, 2017, and a third student told a parent what happened upon returning home from the trip. The parent then called Oakton High School band director James Vanvalkenburg and told him that Doe had been sexually assaulted.
According to the complaint, no school administrator or employee reached out to Doe during the trip to ask about the assault or check how she was doing despite being made aware of what happened as early as Mar. 9, 2017.
FCPS did not contact Doe to discuss her allegation of assault until Mar. 13, 2017, when an Oakton school counselor took her out of class and brought her into an administrative office to speak to Oakton director of student services Jennifer Hogan.
After instructing Doe to write a statement about the assault, Hogan brought in Oakton safety and security specialist Wally Baranyk, who asked if she was planning to take any legal action and warned her that going to court would be “a waste of money.”
According to the complaint, Baranyk had “an accusatory tone” when questioning Doe and challenged her account based on “meaningless details,” such as her relationship with the male student’s girlfriend.
When Doe asked if she was going to get in trouble, Hogan replied that “she did not know,” her complaint says.
Doe’s father met with Hogan after his daughter called and was too emotional to explain what had happened. Hogan told Doe’s father that she could potentially be suspended depending on the outcome of the school’s investigation but did not specify that the incident in question had been an alleged sexual assault, according to the complaint.
The complaint says that school officials’ discussions with Doe’s parents suggested that they “seemed concerned only about the school’s potential exposure to liability, not the safety of its students.”
According to the complaint, FCPS never notified Doe or her parents about any updates in the investigation or its eventual outcome, including whether the alleged assailant had faced any discipline.
Throughout the remainder of the school year, Doe felt uncomfortable during band practices, where she was seated next to the assailant.
She alleges that the band director treated her dismissively, only changing seating arrangements so that she did not have to sit next to her assailant after her mother’s intervention and denying her a musical solo part for which she and only one other student had auditioned.
During the band’s end-of-the-year celebration in June 2017, Doe’s alleged assailant received an award for band members with “exceptional skill and personal leadership.”
Doe’s unnamed assailant graduated from Oakton High School in June 2017.
The national legal advocacy nonprofit Public Justice, which is representing Doe and her parents, has sued the Fairfax County School Board on the grounds that FCPS officials violated Title IX of the Education Amendments of 1972, which prohibits exclusion or discrimination on the basis of sex in education programs or activities that receive federal financial assistance.
“Any time we hear about a student who has reported sexual assault and then met with school officials who ignored her distress or minimized it and actually threatened to punish her after she reported it is something that we find outrageous,” Public Justice senior attorney Adele Kimmel, who is handling the case, said. “…School officials are supposed to provide support to students who report sexual assault, not to threaten them with punishment.”
Kimmel says the nonprofit took Doe’s case after she was referred by the National Women’s Law Center in part because they believe it reflects FCPS’s failure to comply with a resolution agreement that it signed with the U.S. Department of Education’s Office of Civil Rights in 2014.
According to online Department of Education documents, the office of civil rights sent a letter to then-FCPS Superintendent Karen Garza on Aug. 14, 2014 notifying her of the outcome of a complaint that a student had filed against FCPS on Sept. 19, 2012 alleging a failure “to promptly and appropriately respond to complaints of a sexually hostile environment created by other students at the school.”
FCPS signed a resolution agreement on Aug. 11, 2014 that required the school district to revise its policies and procedures for responding to allegations of sexual harassment and to provide mandatory Title IX training to staff.
The language of the Office of Civil Rights agreement emphasizes that it does not constitute an admission of noncompliance or liability on the part of FCPS or its employees.
“OCR recognizes that the Division has taken several actions that reflect a good-faith effort to satisfy the requirements and the spirit of Title IX of the Education Amendments of 1972,” the agreement says. “…OCR has made no determination that the Division has violated Title IX or any other law enforced by OCR.”
Despite the agreement, FCPS has been the subject of multiple sexual assault and harassment allegations since 2014, according to Kimmel.
Lake Braddock Secondary School Principal Dave Thomas retired from his position in February after OCR launched a federal investigation into the school over reports that former Braddock head girls’ varsity basketball Coach John Giannelli had sexually harassed, bullied, and abused female players.
WUSA9 reported in January that it had obtained emails showing Thomas had ignored allegations and failed to protect students.
FCPS said in a statement on June 4 that it was currently reviewing Doe’s lawsuit.
“As a general matter, FCPS takes all allegations of Title IX violations seriously, investigates those allegations and takes action where appropriate, including referrals to law enforcement for possible criminal prosecution,” FCPS public information officer John Torre said. “Those procedures are outlined in FCPS regulations. Due to the legal issues concerning student privacy and personnel we cannot provide further details or comments on the allegations contained in the lawsuit.”
FCPS Regulation 4950.4, which outlines procedures related to sexual harassment, was updated Jan. 12, 2015. The changes made to the regulation include clarification that student-to-student harassment will be investigated at the school level and reported to the Office of Equity and Employee Relations.
According to the FCPS 2017-2018 Student Rights and Responsibilities handbook, discipline for harassment or intimidation based on disability, race, religion, and sex is discretionary with potential consequences ranging from a records review by the regional assistant superintendent to a suspension for up to five days or suspension from sports and activities for up to a year.
A referral to the division superintendent is based upon the school principal’s discretion.
An assault on another student is similarly discretionary, though an assault on staff resulting in bodily injuries would require a referral to the division superintendent for students in grades 7 through 12.
FCPS announced on May 30 that Pine Spring Elementary School Principal Armando Peri had been appointed to serve as its family and student ombudsman, a new position intended to serve as an independent, confidential resource for students, families, and community members.
In addition to helping resolve student concerns and complaints, the new ombudsman will serve as FCPS’s Title IX coordinator.
“We are committed to providing an unbiased point of contact for all student issues,” FCPS Superintendent Scott S. Brabrand said. “We believe the creation of this new position in FCPS will provide families another resource to assist in positive outcomes and resolutions of concerns.”
The announcement of the newly appointed Title IX coordinator came exactly one week after Public Justice filed its lawsuit against the FCPS school board on Doe’s behalf, though Kimmel says the nonprofit notified the school system of its alleged Title IX violation in April.
“We don’t think it’s a coincidence,” Kimmel said. “We hope that the Title IX coordinator has the qualifications and training to do his job, but we’re happy to see that a Title IX coordinator has at least been appointed.”