(Updated on 1/14/2022 at 4:30 p.m.) The Fairfax County School Board has asked the U.S. Supreme Court to take up a former student’s sexual assault lawsuit, a move that could reshape how the federal law against sexual violence in schools is interpreted.
A petition filed by the school board on Dec. 30 argues that public school systems can’t be held liable for sexual harassment and assault unless officials knew an assault took place and could have prevented it.
The lawsuit was initiated in May 2018 by a former Oakton High School student, identified as Jane Doe, who says Fairfax County Public Schools mishandled her report of being sexually assaulted by another student on a school band trip in 2017.
The school board is now seeking to reverse an appeals court’s order of a new trial in the case.
“Funding recipients are rightly held liable when their own conduct intentionally causes harassment,” the petition says. “But Title IX liability rightfully does not, under this Court’s precedents, extend to situations where a recipient does not actually know of harassment or when its actions cause no harassment.”
Title IX prohibits sex-based discrimination in public education programs and activities. Doe’s lawsuit argues that FCPS violated the law by ignoring reports of her assault, discouraging her from taking legal action, and failing to ensure her safety.
A U.S. District Court jury found in August 2019 that a sexual assault took place and harmed Doe’s educational experience, but the school board couldn’t be held liable under Title IX, because officials didn’t have “actual knowledge” that the assault had occurred.
Jury members’ reported confusion over the term “actual knowledge” — whether school officials need direct evidence of an assault or just a report of one — led Public Justice, the nonprofit representing Jane Doe, to appeal the case to the Court of Appeals for the Fourth Circuit.
A three-judge panel ruled in June that a sexual assault report meets the legal standard and ordered a retrial.
However, FCPS asked the appeals court to stay its order for a new trial in September, signaling that it planned to petition the Supreme Court.
In a statement to FFXnow, FCPS maintained that the school board “could not have foreseen 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.
The question in this case is only about whether Congress intended America’s public schools, and the teachers that work in them, to be held financially responsible for student-on-student misconduct that they had no way to foresee and did not cause. We believe the law should be applied the same way nationwide, and only the Supreme Court has the power to restore that uniformity.
To fail to challenge the Fourth Circuit’s ruling would be to let down public school educators the length and breadth of the U.S., and especially in Virginia, during a time when they need support more than ever. In addition, to roll over in the face of costly and unfair lawsuits would be an irresponsible use of taxpayer dollars and would set a worrying precedent for school divisions facing similar lawsuits now and in the future.
However, Public Justice says the school board’s position is at odds with its claims to support students’ safety and civil rights, essentially suggesting that schools can only be held liable for sexual violence if it reoccurs.
“[FCPS] has now asked the Supreme Court to gut crucial protections for Jane Doe, for Fairfax students, and for young survivors across the country, pushing a misinterpretation of Title IX that the U.S. Department of Justice has called ‘absurd,'” Public Justice staff attorney Alexandra Brodsky said by email. “We are confident, though, that the Court will deny the cert petition and Jane will have the chance to be heard by a jury.”
Brodsky added that Doe isn’t seeking to hold FCPS responsible for the assault itself, but rather, for how it responded to her report.
Public Justice has not filed a response to the school board’s petition yet. The Supreme Court docket shows that a motion to extend the deadline for a response to April 8 was granted on Tuesday (Jan. 11).
Shatter the Silence Fairfax County Public Schools, a nonprofit that says it was founded by survivors, parents, and FCPS students, has launched a petition demanding that the school board drop its appeal.
“We the citizens demand that FCPS withdraw the baseless appeal in Doe v. Fairfax County School Board and appropriately respond to sexual assault in school,” the petition says. “Since FCPS continues its culture of cover-up and indifference, we ask the Virginia Attorney General and the Department of Justice to open a civil rights investigation into FCPS and bring accountability once and for all.”
Photo via Geoff Livingston/Flickr
A retired priest who headed the Catholic Diocese of Arlington’s Office of Child Protection and Safety for seven years has been indicted for allegedly sexually abusing a boy in Fairfax County two decades ago.
Virginia’s Office of the Attorney General announced this morning (Tuesday) that a grand jury handed down two felony charges against Terry Specht, 69, of Donegal, Pennsylvania on Dec. 20.
The Fairfax County Circuit Court grand jury charged Specht with aggravated sexual battery of a child under the age of 13 and sexual abuse of a child under the age of 18 with whom he had a custodial or supervisory relationship.
According to the indictments, the abuse occurred between March 1 and Sept. 30, 2000 and involved Specht “intentionally touching…intimate parts or material covering such intimate parts” of a victim identified as G.H., who was a minor at the time.
Specht served as a priest in the Diocese of Arlington from 1996 to 2012, including as director of its Office of Child Protection from 2004 to 2011.
The Diocese of Arlington says it first received an allegation of sexual abuse against Specht in 2012. The allegation was reported to law enforcement, and Specht was placed on administrative leave while the diocese’s review board conducted an investigation.
According to a report by The Washington Post at the time, the investigation concerned abuse of a teen boy that occurred in the late 1990s while Specht was parochial vicar at the Saint Mary of Sorrows Catholic Church in Fairfax.
“The Review Board found the allegation to be inconclusive, and law enforcement never brought charges related to the 2012 allegation,” Diocese media relations director Amber Rosebloom told FFXnow in a statement, noting that Specht was granted a request for medical retirement in 2012 and has not served in priestly ministry since.
According to the Diocese, Specht’s role in its Office of Child Protection was as a policy administrator and instructor, and he was not involved in the 2012 investigation or in assigning priests. A subsequent third-party review of the office’s policies, staff, and procedures did not find any issues.
“As a priest in the Diocese of Arlington, Father Specht underwent a criminal background check and completed VIRTUS safe-environment training,” the Diocese said. “He also underwent recurring background checks every five years, consistent with diocesan policy.”
The Diocese says it reported a second, separate allegation of abuse that it received in 2019 to police and has shared information and files related to both allegations with Attorney General Mark Herring’s office.
Specht is the third person to face charges as part of an ongoing, statewide investigation of clergy-related sexual abuse, according to the attorney general’s office.
“Children should always feel comfortable around religious leaders in their life, without fear that they could somehow hurt them,” Herring said in a statement. “Our joint investigation with the Virginia State Police into potential clergy abuse in Virginia remains ongoing, and I am proud of the work that we have done so far.”
Specht’s case is scheduled to go to trial in October 2022.
Herring encouraged Virginians who might have information about this case or any other instance of clergy abuse to speak up. His office launched a clergy abuse hotline in 2018 that remains available 24/7 at 1-833-454-9064 and www.VirginiaClergyHotline.com.
“No matter how long ago the incident occurred, we will take it seriously and make sure that you get the help and support you deserve,” he said.
The Diocese of Arlington similarly encouraged people with information about Specht or other incidents of misconduct or abuse to contact the Fairfax County Police Department at 703-691-2131 or its victim assistance coordinator at 703-841-2530.
“The Diocese of Arlington has a zero-tolerance policy for abuse and continues to be fully committed to training our clergy, staff and volunteers to identify and report suspected instances of abuse,” Rosebloom said. “No one with a credible accusation of abuse of minors is serving in the Diocese.”
Fairfax County Public Schools has asked a federal appeals court to postpone an ordered retrial of a former Oakton High School student’s sexual assault lawsuit, setting up a possible escalation of the case to the U.S. Supreme Court.
The school system plans to file a petition for a writ of certiorari requesting that the Supreme Court take up the case, according to Public Justice, the nonprofit legal organization that represents the student, who has only been identified as Jane Doe.
Public Justice told FFXnow that it learned about those intentions Monday morning (Sept. 20), though it’s still holding out hope that the Fairfax County School Board will opt not to file the petition.
The law firm warns that, if FCPS files a petition and the appeal is accepted, it could set the stage for a reevaluation of Title IX protections against gender discrimination, which have traditionally been used to address school-based sexual violence, by the same court that allowed Texas to essentially ban abortions earlier this month.
“Fairfax would be asking them to severely undermine students’ civil rights,” Public Justice staff attorney Alexandra Brodsky, the plaintiff’s counsel, said. “I think there’s a real question for Fairfax families whether they want the legacy of Fairfax schools to be undermining equality and safety for students.”
Filed in May 2018, the lawsuit argues that FCPS violated Doe’s Title IX rights by failing to ensure her safety and provide support after she reported that an older, male student sexually assaulted her when they were on a bus during the five-day school band trip.
The school board’s Sept. 9 regular meeting agenda includes a closed session to consult with legal counsel about the case, known as “Jane Doe v. Fairfax County School Board et al.”
FCPS confirmed that it has requested the U.S. Court of Appeals for the Fourth Circuit to stay its June 16 ruling ordering a new trial in Doe’s lawsuit over school officials’ response to her report of being sexually assaulted by a fellow student during a band trip in 2017.
With one judge dissenting, the three-person panel reversed a U.S. District Court jury’s verdict in favor of FCPS, arguing that the lower court had failed to accurately define for the jury the legal standard to determine if the school system had “actual knowledge” of the reported assault.
“As the divergent opinions of the Fourth Circuit show, the issues in this case could have nationwide and potentially far-reaching implications,” FCPS spokesperson Julie Moult said in a statement. “For that reason, we have asked the court to stay or suspend the effective date of its ruling, pending further review.”
FCPS said it had no further comment at this time, including on whether it plans to petition the Supreme Court. Read More