Virginia sex assault case raises questions about school responsibility

After more than three days of testimony, the woman pressed her forehead into her palm, her long dark hair falling into her face as she began to cry.

“I don’t remember,” she said at one point. “This is very difficult for me.”

In 2019, seven years after her parents pulled her out of the school, the woman filed a lawsuit alleging that Fairfax County Public Schools (FCPS) failed to provide her with a safe learning environment — a violation of her rights under Title IX, the law that forbids sex discrimination in federally funded schools. On the first day of court, the lawyers on both sides of the case outlined key questions they planned to address in a trial that would span weeks: What happened at the middle school more than a decade ago? What did school officials know? And what did they do in response?

Regardless of the jury’s decision, which is expected in April, the case in Fairfax County raises critical questions about the extent to which schools can be held legally accountable for what transpires both on campus and after school among students. The woman is seeking compensatory damages for mental and physical health challenges she attributes to post-traumatic stress disorder from the events that she says played out during her seventh grade year. The woman is identified as B.R. in court records. The Post does not name those who allege they are victims of sexual assault without their consent.

Fairfax School Board lawyers have fought the allegations, maintaining that school administrators responded properly to the complaints that were made at the time. They say that no rape was ever reported to the school, and they have aggressively questioned the woman’s credibility, telling the jury that her story changed over the years and that the school board had “serious doubt” that her allegations were real.

“They didn’t believe her then and they don’t believe her now,” Andrew Brenner, the woman’s attorney, said to the jury during his opening arguments. “That’s why they didn’t do what they were supposed to do.”

In a statement, an FCPS spokesperson said: “More than a decade ago, dedicated administrators, counselors, teachers, and staff helped this former student and addressed her concerns.”

In Northern Virginia, the issue of how schools handle sexual assault has been an especially prominent topic after a special grand jury found that the school district in nearby Loudoun County mishandled two sexual assaults. Officials transferred a student who had committed one sexual assault to a second campus, where the student committed a second assault. The family of one of the girls filed a lawsuit late last year against the school district for its handling of the case.

Each year, thousands of sexual harassment and assault cases are reported by school districts to the Virginia Department of Education. That is probably a fraction of the number of incidents happening in schools, as experts say many cases of sexual assault and harassment go unreported. According to the Fairfax Youth Survey, in 2022, more than 16 percent of female students in grades eight through 12 reported that they had been sexually harassed in the past year at least once.

In the courtroom, sexual-assault-survivor advocates, parents and B.R.’s friends showed up each day to watch the proceedings. Alex Prout, co-founder of the organization I Have The Right To and the father of a sexual assault survivor, held a small rally outside the courthouse in support of B.R. on the first day she took the stand.

“One in four girls and one in six boys will be sexually abused before they graduate high school. This is unacceptable,” he said. “But what is more unacceptable is that our schools or institutions spend millions of dollars to silence victims of sexual violence. It is so important for survivors to be able to use their voice.”

Elizabeth Tang, senior counsel for education and workplace justice at the National Women’s Law Center, said in an interview that she has fielded hundreds of complaints about students experiencing sexual harassment, assault and other sex discrimination in schools across the country. Those complaints frequently contain concerns that schools are mishandling these reports, though very few cases make it to trial.

“The standards for bringing a Title IX lawsuit against a school is very burdensome on plaintiffs, on victims, and so it’s very difficult to clear those hurdles,” Tang said.

Over the past week and a half, lawyers have meticulously examined every aspect of the middle school experience for the eight-person civil jury. They presented maps of the school, debated the size and location of lockers, looked at a school slide show on bullying, and reviewed the district’s policies. With each witness, they reviewed the details of meetings that B.R., her family and other students had with school administrators that year. What did they write in statements? What could they remember saying verbally? Many of the witnesses struggled to recall the details, frequently reminding the court that this had all taken place more than 12 years ago, when some of them were still children.

B.R. took the stand on the fourth day of trial, beginning her multiday testimony laying out the details she remembered of how her first date to a pumpkin patch evolved into rumors at the school that she participated in sexual activities that she said she did not do. She testified that she was sexually harassed and called graphic names both at school and online. She said that other kids routinely surrounded her and groped her on school grounds at her locker — something, she claimed, she reported to school officials.

She testified that an eighth-grade boy began regularly raping her at the bus stop and in some nearby woods after school. As she described her memories of the assaults, her brow furrowed and her eyes filled with tears.

“I felt like I lost my voice when I was 12 years old,” she testified. “I felt like no one believed me.”

B.R.’s case has been legally complex with hundreds of docket entries since she initially filed the lawsuit in 2019. She has been represented by multiple sets of lawyers, and the school district has asked a judge to throw out the case on multiple occasions.

While complex, the case is just one example of the kinds of lawsuits filed against Fairfax County Public Schools in recent years. The district spends millions on outside legal counsel every year in part to fight these types of cases, according to public records of district legal fees. Fairfax Schools paid Hunton Andrews Kurth, one of the law firms defending the school district in the B.R. case, more than $14 million between July 2019 and July 2023. The district has paid all outside attorneys more than $23 million over the same period.

“Many claims involve complicated issues of fact and law and require experienced litigators with a background in education,” an FCPS spokesperson said in a statement. “We are fortunate to have several law firms with those qualifications, and virtually all school systems our size rely on experienced outside litigation counsel in such cases.”

The Fairfax school system recently fought a similar case in which the plaintiff, identified as Jane Doe, alleged that she was sexually assaulted on the bus during a band trip in 2017. She alleged that the school leaders failed to properly respond to her complaints. The school board, however, argued that the encounter “was not a sexual assault” and that school personnel “took meaningful and appropriate action” to address the incident.

In 2019, a jury panel found that Doe had been sexually harassed and that the incident, and the school’s response, deprived Doe of her rightful access to education. But the panel ultimately ruled in Fairfax’s favor, finding that the school board was not liable for the sexual harassment because it did not have “actual knowledge” of what occurred on the bus trip. Doe requested a new trial and the U.S. Court of Appeals for the 4th Circuit granted her request. The school district settled in the case last year after the Supreme Court declined to hear the school district’s appeal.

B.R. and her family filed a Title IX complaint with the U.S. Department of Education’s Office of Civil Rights (OCR) in 2012. In 2014, the school system agreed to change its policies for handling sexual harassment allegations between students, establish the role of a Title IX coordinator and create a centralized database for reports of harassment.

Though FCPS did not admit any wrongdoing at the time, OCR wrote that its investigation “found that the Division did immediately conduct an inquiry into most allegations of sexual harassment brought by the student and her parent. However, OCR identified some possible concerns with the adequacy of the Division’s investigation, its analysis of the information collected, and the Division’s apparent treatment of the incidents of alleged harassment as discrete, isolated occurrences rather than addressing the broader issue of a potentially hostile environment at the School.”

In the courtroom, lawyers reviewed the type of harassment and bullying that students at school testified to at the time. They also focused on social media, particularly Facebook, and its central role in the case. At times, witnesses read hurtful, profane and sexually explicit messages they sent when they were preteens. On the stand, B.R. herself testified about creating a fake Facebook page that she used to bully herself. She said she was not proud of the action, but she did it at the time hoping that if other students saw the account and reported it to the school, administrators might take further action.

Prout, the father who held the rally for B.R., said he knows her and told her before the trial began that her victory wasn’t dependent on the verdict.

Her victory, he said, was getting to this point, sitting in front of a jury — something many survivors would never get to do.