The way in which school districts will handle students sexual assault cases in the future may change as Fairfax County has taken a student’s sexual assault case to the Supreme Court. This case involves a girl from Oakton High School who claims she was sexually assaulted while on a school band trip. She states that FCPS failed to protect her, however, FCPS maintains they should not be held liable for the incident. The plaintiff, referred to as Jane Doe, alleges that defendant, FCPS, failed to appropriately react to the sexual discrimination which harmed her educational opportunities.

It started on March 8, 2017 when Doe attended an overnight Oakton High School band trip to Indianapolis, Indiana. The girl claimed she was was sexually assaulted by another older FCPS student on the bus ride there. She claims that the student continued to touch and force touch without consent. The plaintiff says she called multiple friends to tell them about the unwanted actions that had occurred. The girl alleges that when the incident was reported to school officials, the information was miscommunicated, and falsely accused her of being in the wrong.

When Doe returned to school on March 13, Oakton’s Director of Student Services, the Assistant Principal, and her counselor, spoke to her about the incident. Doe asked what she should do as she was in the same class as the man who assaulted her. The school gave her either the option to practice alone in a separate room or drop the class altogether. The same day, she gave a written statement to FCPS. The Assistant Principal told the girl’s father that an investigation was going to be held that could result in disciplinary action against the girl. An investigation was required because the girl claimed she was assaulted while the alleged assaulter claimed it was consensual. 

Later that week on March 16, a meeting was held by the school to discuss the findings of the investigations and the possible consequences. At the meeting, it was determined that the school wasn’t going to discipline either student and the investigation had been concluded. A trial was held after the school investigation ended which resulted in FCPS’s motion being granted. Although the plaintiff lost the first trial, a second trial was requested, but denied.

 As a result of this, Doe went back to court on May 31, 2019. The plaintiff believes that the way FCPS, more specifically Oakton High School, responded to the sexual assault case in such a way that it violated Title IX, a law that protects students from sexual harrasment. This lawsuit also claims that the law was violated by ignoring the reports of the assault and encouragement from the school board to not take legal action. The plaintiffs motion was granted for three main reasons. 

The legal standard and duty to preserve were the first two reasons to grant approval. The girl claims that the defendant lost or destroyed evidence of interactions that would have incriminated FCPS. Doe argued that the defendant was responsible for preserving the written documents, interviews notes, and text messages related to the event. FCPS believes they did not have the duty to preserve the evidence until April of 2018 when they received the plaintiff’s pre-suit letter. The Court ultimately found that the evidence should have been preserved before this date. 

Lastly, timelessness. Defendant FCPS had rebuttals to each of these claims. FCPS argued that the Court should deny the plaintiffs motion due to the untimeliness manner in which it was filed. They believe that the girl failed to file her motion until May 12, 2019, making it untimely and worth disapproval. However, the court believed that the plaintiffs motion was timely filed. On Aug. 30, 2021, it was determined by the U.S. Court of Appeals that “schools don’t get one free rape.” However, FCPS is asking the Supreme Court to hear the case and a decision is expected sometime in April.

FCPS board members aren’t speaking on the issue as it is ongoing. However, in a December statement, they said, “the School Board did not have prior notice of the assault, did not cause it, and could not have prevented it. Fairfax County Public Schools is committed to upholding Title IX and firmly believes that every student deserves an education free from harassment or discrimination. The decision to pursue this legal avenue has nothing to do with challenging this critical civil rights law.” If the Supreme Court decides to hear this case and FCPS “wins,” it will change the policies and laws across the country regarding the outcome survivors of sexual assault may face. A few school boards have filed an amicus brief supporting FCPS who act as interest groups. It will grant schools the ability to not be held liable for a first assault unless a second one occurs by the same assaulter. 

Alexandra Brodsky, the Staff Attorney for Public Justice, a non-profit legal advocacy organization, is the Council of Record in the Supreme Court for the case and represents Doe. Brodsky’s role is to litigate civil rights cases, mostly revolving around schools and the criminal legal system concerning the rights of Title IX. Brodsky got involved in the case in 2019 when it was on appeal to the Fourth Circuit. Currently, organizations representing Doe are working hard to ensure that FCPS is not granted the right to take the case to the Supreme Court. Brodsky believes if the Supreme Court adopts the “one free rape rule,” schools will essentially ignore survivors of assault and it will threaten students educational opportunities. “We see again and again that when survivors are betrayed by the adults who are supposed to protect them, they sacrifice their own education in order to stay safe,” said Brodsky. 

Public Justice believes that even if the Supreme Court takes up the case, Doe will still have a path for the lawsuit to move forward, but it will just be significantly narrowed. If the Supreme Court does not take up the case, Brodsky believes that it will be very important to Doe as it will allow her to succeed at a trial while making her voice heard and formally have the school acknowledge her. “I think it will also send an important message to Fairfax and schools around the country that they really need to be sure to respect the Title IX rights of survivors and to protect those students’ educations.”