Fairfax County Public Schools has asked the Supreme Court to hear a case that an appeals court judge said amounted to schools asking to get “one free rape” before staff could be responsible for inaction.
The National School Boards Association (NSBA) wrote a “friend-of-the-court” brief supporting Fairfax’s position. NSBA previously wrote a letter comparing parents to potential domestic terrorists, specifically singling out a father who was angry at the school board because his daughter was raped at school.
The schools groups are hoping the high court will intervene to block a case brought by a teenage girl, known as Jane Doe, against the school system from going to trial.
The case places the NSBA and the Virginia school district up against the National Women’s Law Center, the Human Rights Campaign, the National Black Women’s Reproductive Justice Agenda, and other feminist, liberal, or survivors-rights groups, all of whom filed an opposing friend-of-the-court brief. National groups have a strong interest in the case because the legal question could set a precedent that would insulate school systems and staff from liability for failing to take action after they learn about an alleged sexual assault on school grounds.
Shatter the Silence, a group of survivors of sexual assault within Fairfax schools and their families, said in a statement: “The Fairfax County School Board has no shame. Board members plaster their equity commitments on Twitter and pass empty resolutions claiming that inclusion and civil rights guide their governance. In reality, they spend taxpayer money asking the Supreme Court to enshrine a ‘one free rape’ safe harbor for schools that fail to properly investigate allegations of student sexual abuse.”
On June 16, a three-judge panel of the Fourth Circuit Court of Appeals, led by Judge James Wynn, ruled against FCPS, and ordered that Doe should have her day in court.
On August 30, it declined FCPS’ request to rehear the case with a larger group – known as en banc – with Wynn contradicting FCPS’ characterization of the issue, writing that no one was contending “that a school can face ‘retroactive’ liability for the assault itself when the assault was committed by another student and the school had no prior warning it would occur… [rather,] a school may be held liable for its own behavior in response to a peer assault.”
“Surely a student is subjected to discrimination on the basis of sex when they report a sexual assault by a fellow student on school property and are met with nothing more than a collective shrug of the shoulders—or, worse still, with accusatory questions or flat-out blame,” he wrote.
Laura Jane Cohen, a Fairfax school board member who has used her perch to advocate for gender issues such as transgender and women’s rights, but whose campaign was also backed by teachers unions, did not return a request for comment on the board’s decision to fight Doe all the way to the Supreme Court.
The National School Boards Association did not return a request for comment.