A former Oakton High School student is seeking a new trial in her lawsuit against the Fairfax County School Board involving a sexual assault that occurred on a school band trip in 2017.
Attorneys representing the plaintiff, known as Jane Doe, and the school board delivered oral arguments to the Court of Appeals for the Fourth Circuit remotely on Monday (Jan. 25).
According to Public Justice, the nonprofit representing the plaintiff and her family, Jane Doe — then a junior — and another bandmate — then a senior — were sitting next to each other on a bus when he touched her without her consent.
Filed in 2018, the nonprofit’s original complaint alleged that administrators and employees failed to take meaningful and appropriate action. According to the complaint, administrators threatened to discipline her and discouraged her from reporting the assault to police or taking legal action.
In August 2019, a jury with the U.S. District Court in Alexandria found that Jane Doe was sexually harassed and that the experience negatively impacted her education. But the jury did not find the Fairfax County School Board could be held liable for the deprivation of her education as a result of her assault.
The jury determined that the school board did not have “actual knowledge” about the assault, though one juror later said there was confusion over the term’s definition. As a result, the jury did not discuss the final question in the case, which asked whether the school board acted with deliberate indifference toward Doe’s complaint.
FCPS’s liability, which appears to hinge on the extent to which school officials knew an assault had taken place and whether they took sufficient action to address the plaintiff’s concerns, is now being relitigated.
“There may be hard actual knowledge cases, but this isn’t one of them. This family did all they could to put the school on notice,” Public Justice attorney Alexandra Brodsky said in her argument on Monday. “This court should remand a new trial so a jury can reach, for the first time, the question of whether the school did enough.”
Stuart Raphael, the attorney for the school board, argued that the board did not have “actual knowledge” because Doe — in a conversation with Fairfax County Public Schools Director of Student Services Jennifer Hogan — did not describe her experience as sexual assault or nonconsensual. He added that Doe was “incredulous” when another administrator asked if she would press charges.
He argued that these facts, as well as inconsistencies between the stories that reached administrators, support the jury’s initial finding that the school board had no “actual knowledge” of the sexual assault.
“It cannot be that a school administrator’s failure to understand what constitutes sexual harassment is an absolute bar to liability,” Brodsky said. “That’s why this court and others have treated a failure to categorize reports of sexual harassment as evidence of a deficient response.”
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