By Shatter the Silence Fairfax County Public Schools
January 18, 2022
This past week, an angry public confronted Fairfax County Public Schools over its Supreme Court appeal that would gut Title IX, the main law that protects students from sex-based discrimination. In response, FCPS, which rarely comments on litigation, issued a three paragraph written statement defending the school board’s actions. That statement is below.
The public should not be fooled—FCPS sees the reckoning other powerful institutions, like the Catholic Church and the Boys Scouts, faced for mishandling sexual abuse. Knowing FCPS could face similar consequences, it has asked the Supreme Court to change the rules in a way that would put children and students across America in danger. So FCPS tries to delude the public into thinking this case is about blaming schools for sexual assault committed by students. It is not. This case is about holding FCPS accountable for its failure to take reports of sexual assault seriously. Shatter the Silence Fairfax County Public Schools encourages the public to sign our petition and register on our website to fight back and get involved.
Here is a recap for those just tuning in: FCPS has long mishandled sexual abuse and harassment. Read our writeup of the problem here, but the short version is that FCPS faces multiple federal lawsuits, faces multiple investigations by the US Department of Education’s office of Civil Rights, had two principals arrested for failing to report child sex abuse, and has suspiciously low reports of sexual misconduct. In addition, this does not include multiple blogs and social media pages where victims have bravely shared their stories. Shatter the Silence Fairfax County Public Schools (FCPS) is a volunteer run, non-partisan, non-profit founded by survivors and their loved ones who were harassed or abused within FCPS.
Rather than addressing these issues properly, FCPS has hired a powerful Washington law firm, Hunton Andrews, and its lawyers—Ryan Bates, Sona Rewari, Elbert Lin, Perie Reiko Koyama, and Kelly Oeltjenbruns (who bill taxpayers $750 an hour) to convince the Supreme Court to reinterpret Title IX. If FCPS wins, schools across America would get “one free rape,” as a federal appeals judge explained, before schools can be held accountable for student misconduct.
FCPS initially tried to sneak the petition to the Supreme Court under the radar, filing it in the week between Christmas and New Year. Fortunately, Shatter the Silence FCPS discovered the petition and broke the story last week, which FFX Now covered in response to us breaking the news. We anticipate a few other publications will follow suit.
In response, we launched our own petition, which now has over 4,000 signatures and thousands of shares on social media calling for the school district to drop the opinion. Every time someone signs the petition, each school board member gets an email. (On a side note, if you have not signed the petition already, please do so here).
Sensing the backlash, FCPS knew it could not ignore the issue anymore, and issued the following, lengthy, statement:
“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.”
FCPS’s statement fundamentally misstates the premise of its Supreme Court challenge. Since FCPS is not being straight with the public, it’s important to set the set the record straight and fully explain what the Supreme Court appeal is really about.
Title IX makes it clear that schools are accountable when they fail to appropriately respond to reports of sexual misconduct and gender-based discrimination. Currently, Title IX requires schools to reasonably investigate when a student reports a sexual abuse. The school must then take appropriate action to fix the problem. If they do not, they can be liable. FCPS’s attempt to create broad exemptions from liability degrades the purpose of Title IX and puts students across the country in danger.
FCPS wants you to believe that this case is about making school districts liable for sexual abuse that the schools don’t know about. That’s wrong. In Jane Doe’s case, FCPS knew about the abuse and failed to respond to it, school employees joked about it, school employees asked Jane victim-blaming questions, and they threatened her with dismissal. Jane seeks to hold the school liable for its actions, or lack thereof, in response to her report.
If FCPS wins this case at the Supreme Court, a student would have to be sexually abused, report the abused to school officials, and then be abused again after reporting the first abuse before the school is held accountable. In Jane Doe v. Fairfax County School Board, a child was sexually assaulted on a school field trip. Despite promptly reporting her assault, school officials failed to investigate, and instead mocked her in text messages before sending her back to class with her assailant.
FCPS tried to argue that since Doe wasn’t sexually assaulted again, the school was not liable. The appeals court twice rejected FCPS’s arguments, explaining that schools don’t get “one free rape” before liability. Instead, even if a student is not abused again, the school still has to investigate properly and take reasonable steps to keep the child safe. Unhappy with this common-sense ruling, FCPS seeks Supreme Court review.
Narrowing Title IX has the effect of scaring away survivors from suing and protecting the schools from liability for their abusive conduct. If FCPS prevails, survivors of sexual violence in schools across the country would lose recourse in all but the most severe cases.
It’s also crass that FCPS is trying to pretend it is “supporting” educators by gutting Title IX. In reality, Title IX also protects teachers and educators from sexual misconduct and sex-based discrimination as well. Besides, in the current Jane Doe case, Jane Doe sued FCPS as an organization, not any of her principals. FCPS’s attempts to frame this as a student v. teacher is just wrong.
Every parent sends their child to school expecting schools to keep their children safe. And every child has the right to an education free from sexual misconduct and gender-based discrimination. We shouldn’t have to fight our own local government for something so basic. But if FCPS wants to fight, we’re just getting started. While FCPS may have the expensive lawyers at Hunton Andrews and fancy PR professionals, we have what matter—the people fighting for a just cause.
Shatter the Silence Fairfax County Public Schools is a volunteer-run, nonpartisan, nonprofit organization founded by survivors, parents, and students of Fairfax County Public Schools. We seek to raise awareness, and demand accountability, about civil rights violations that occur in FCPS. Visit our website, www.shatterthesilenceFCPS.org, or follow us on Instagram or twitter @shatterFCPS, to learn more.