The Virginia General Assembly recently elected Stuart Raphael, former solicitor general of Virginia, to the state Court of Appeals. Raphael has served as defense counsel for the Fairfax County School Board (FCSB), which has faced two separate lawsuits in the past couple of years regarding student claims of sexual harassment and assault.

In Jane Doe v. Fairfax County School Board, a former Oakton High School student sued the school board for damages for its handling of a sexual harassment complaint.

 The jury found that, though they determined that Doe had experienced sexual harassment severe enough to affect her education, the school board was not liable and therefore should not pay damages, as reported by the Fairfax Times in 2019. 

 The National Women’s Law Center (NWLC) filed an amicus brief on behalf of the plaintiff in the 4th U.S. Circuit Court of Appeals, and the judgment was reversed in an opinion this past June — meaning the court held that schools must always respond when they learn of sexual harassment allegations.

 While Raphael stated he could not comment due to being a judge-elect, John Foster, the general counsel for Fairfax County Public Schools (FCPS), provided the following statement on the case: ​​“We are still reviewing the 4th Circuit ruling, but we continue to believe both the jury’s verdict and the trial court’s judgment were correct. FCPS remains committed to providing a supportive educational environment for all students, as we did in this case.”

 The 4th Circuit rejected a rehearing August 30, upholding Doe’s appeal. The published opinion stated: “Thus, the statute itself makes plain that a school may be held liable when it makes a student vulnerable to sexual harassment by their peers, such as by failing to respond appropriately after learning of an initial incident of sexual assault. In other words, schools do not get “‘one free rape.’”

 In addition to being counsel for FCSB for Doe, Raphael is serving as defense counsel for FCSB in B.R. v. F.C.S.B., et. al in the 4th Circuit.

 B.R., a former FCPS student, filed a lawsuit alleging that the district violated Title IX laws in regard to alleged harassment and assault that she faced in middle school, according to NWLC.

 According to NWLC, the school district argued that her case should be dismissed because she did not obtain permission to use a pseudonym when filing this lawsuit and that “this was a jurisdictional defect such that the court’s later grant of permission to use a pseudonym did not relate back to the date of her original complaint for purposes of statute of limitations.”

The U.S. District Court for the Eastern District of Virginia sided with B.R., noting that this technicality is not a basis for her case to be dismissed. FCPS is now appealing the decision to the 4th Circuit.

NWLC also filed an amicus brief on behalf of B.R., the plaintiff. The organization stated in an April blog post that, “Our brief points out that survivors—especially younger survivors—already face many barriers to reporting sexual abuse and that having the option to use a pseudonym is critical to their ability to seek justice through the courts.”

In the opening brief, Raphael and other counsel for the defendants-appellants argue that “This Court has not yet decided whether a plaintiff’s failure to seek leave of court to proceed under a pseudonym or to otherwise disclose her identity to the district court is a jurisdictional defect. But history, persuasive precedent in other circuits, the consistent precedent here, and the independent gatekeeping responsibilities imposed by Article III all point to the need to recognize the identification requirement as jurisdictional.”

Elizabeth Tang, a senior legislative analyst at NWLC, said that both these cases are about protecting the rights of survivors of sexual violence. 

“It’s protecting student survivors from having their rights be narrowed. And it’s about affirming the rights that student survivors, and all victims of discrimination, already have,” Tang said of B.R. v. F.C.S.B., et. al in particular. 

Raphael is one of eight judges newly elected to Virginia’s Court of Appeals. The process drew criticism from the Commonwealth’s Republican lawmakers, who argued that Democrats were attempting to pack the court — and also stated there was no proper public input — according to an article by the Associated Press.

 The cases against FCPS also come amidst expanding legislation for victims of sexual violence, including increasing the “statute of limitations for certain misdemeanor sexual offenses” and requiring hospitals to provide specific treatment or services to sexual assault survivors, according to a 2020 press release from Virginia House Democrats.

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