The full panel of 15 appellate judges in Richmond narrowly granted an appeal by a former high school student from Northern Virginia to reopen her school system after alleged sexual assault on a band trip
FALLS CHURCH, Virginia (AP) – The full panel of 15 appellate judges in Richmond narrowly granted an appeal by a former high school student from Northern Virginia to reopen her school system lawsuit after alleged sexual assault while on a band trip.
The close 9-6 ruling by the U.S. 4th Court of Appeals on Monday sparked two rare written disagreements from two judges who say the ruling increases the liability of school systems under Title IX, the law that prohibits sexual discrimination in public significantly expands training.
Dissenting Judge J. Harvie Wilkinson wrote that the reopening of the lawsuit “will only add to the dramatic loss of control that states and communities can exert over their own school systems.”
Judges constantly disagree when they hear cases, but it is rare for them to object to what is known as an en banc petition, in which the losing side of a decision by a normal panel of three judges asks the entire circle to take up the case.
The case stems from a complaint by a student at Oakton High School about the administrative authorities’ response to their allegations of an attack on a band’s tour in 2017.
In a 2019 trial in Alexandria federal court, attorneys for the school system argued that no assault had occurred. They said evidence showed the girl was ambivalent about her involvement in the behavior and only got really upset after learning that the male student had a girlfriend.
The student, identified only as Jane Doe in court, testified that she tried to prevent the male student’s hands from touching her while they snuggled under a blanket and that at one point they removed her hand from his genitals moved away just to get him to grab it and put it back.
She admitted that she never said “no” to him or tried to get up and walk away. But she insisted that she disagree.
“It’s pretty easy. I never said “yes” when he did this to me, ”she testified.
The boy who committed the alleged assault was not punished.
The Alexandria jury found that she had been attacked, but decided in favor of the school district after determining that they had been properly informed of the alleged attack.
At the beginning of this year, a divided three-person jury resumed the lawsuit. On appeal, the judges focused less on whether she was being attacked and more on whether the school system could be held responsible for a single alleged attack if no problem was announced beforehand.
The dissenting judges said Title IX went beyond its intent to hold the school district liable for an alleged assault in the circumstances described in the lawsuit.
“Unfortunately, we are now leaving the Supreme Court as the only possible place to review this important legal issue that will affect educational institutions across the country,” wrote dissenting Judge Paul Niemeyer.
Judge James Wynn, who wrote for the majority, said that “a school can be held liable if it exposes a student to sexual harassment by their peers, such as being a schoolboy. In other words, schools don’t get ‘a free rape’. “
In a statement, Fairfax County Public Schools attorney John Foster said Monday’s ruling was being reviewed but did not definitively say whether the school system would appeal to the Supreme Court.
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