Band wasn’t just an extracurricular activity, she said — it was her life.
An alto-sax player, she was part of three different ensembles — marching band, concert band and jazz band — spending hours upon hours each week practicing and performing.
But her passion for band soured her junior year in high school: the year she reported that a male classmate sexually assaulted her on a school band trip.
Speaking to a Northern Virginia courtroom about the incident in 2019, the Oakton High School student, known in court documents as Jane Doe, recounted two traumas: the alleged assault and the way school officials treated her afterward.
The student, who was 16 at the time of the incident, said school officials asked her what she was wearing during the alleged assault. They pressed her on why she didn’t scream or stand up and walk away, she said during testimony. They suggested she might get in trouble for participating in sexual activity during the school trip.
Though she told officials she didn’t consent to any sexual activity, she said school administrators didn’t make any attempt to separate them, let alone discipline him. As the year wore on, she started practicing in a windowless room the size of a closet, surrounded by instruments. It was either that or sit behind her alleged assailant in class — the school gave her “no other option,” she said.
One particular indignity stood out: watching the boy, a senior, receive the coveted “director’s award” from her band teacher at an end-of-year banquet. The teacher had been one of the first people she told about the alleged assault.
“It was one thing to be assaulted,” she told the court later. “It was another thing for the people who are supposed to be there to protect you to do nothing about it. And not just do nothing, but to blame you for what had happened.”
The jurors who listened to her were convinced that she had experienced a sexual assault, and that the impact was so severe that it impacted her ability to get an education. But because of a crucial legal caveat, the jury did not find Fairfax County Public Schools responsible for violating her civil rights.
Now, a June 16 decision from a federal appeals court on her case, Doe v. Fairfax, has opened the door for a new trial, and for stronger protections for students like her who bring sexual harassment and assault claims to their schools.
The U.S. Court of Appeals for the 4th Circuit ruled that once a school receives a report of sexual assault or harassment, it should take action or it might be liable for violating Title IX regulations.
That may seem intuitive to those unfamiliar with the finer points of Title IX, a civil rights law that ensures gender equity at schools, public and private, across the country. But for years, there has been a lack of clarity about what a school needs to know about incidents of assault or harassment — and how much harassment a student must endure — before it is held liable.
“This is a victory for Jane Doe and all student survivors who have a right to an educational environment free from discrimination,” said Lauren Khouri, the student’s attorney.
Lucy Caldwell, a spokeswoman for Fairfax County Public Schools, said the school district “respects the court’s decision” and is reviewing the judge’s opinion. The school district’s lawyer, Sona Rewari, did not respond to an interview request.
Title IX applies to schools at all levels of education — from kindergarten to college — but K-12 schools have lagged behind colleges and universities in meeting the standards set out by the law.
As NBC News reported last year, some schools are failing to meet basic, long-standing requirements, such as publicly posting sexual harassment policies, or ensuring that there is an assigned person at the school to handle Title IX cases.
Fairfax County Public Schools, the 10th-largest school system in the country, was the subject of four lawsuits over its handling of sexual assault claims over a two-year period, including this one.
This environment creates even more challenges for students bringing forward complaints of harassment or assault, noted Elizabeth Tang, an attorney at the National Women’s Law Center (Tang also submitted an amicus brief on behalf of the student in the appellate case).
“Survivors are punished for all sorts of things when they come forward,” she said. For example, officials might discipline the victim for taking part in a sexual act on school grounds, even if the victim says it wasn’t consensual.
Bringing forward a Title IX case to hold schools accountable is also difficult.
“Students who are sexually harassed face more obstacles to get relief from the court system than employees who face workplace sexual harassment,” Tang said. This essentially means that children in schools get fewer protections than adults in the workplace do.
Title IX case law requires that people reporting sexual abuse in schools to make the case that the harassment they experienced was both severe and pervasive, and impacted their ability to access an education. They must also put forward evidence that the school knew about the reported harassment (a standard known as “actual knowledge”) and acted with “deliberate indifference,” meaning it handled the case in a clearly unreasonable way.
When the case of Doe v. Fairfax first went to trial in 2019, the jury’s decision to side with the district hinged on one of those questions: Were Oakton High School officials aware that possible sexual harassment or assault may have happened?
The district argued that it was not made aware of the student’s assault, even though she said she described the incident in detail to two teachers, a school nurse, an administrator and a school resource officer.
According to her testimony, she was assaulted on a bus during a school-sponsored band trip. The boy, a friend of hers, sat next to her. She said that he forced her to touch his penis, and that he forcibly groped her breasts and digitally penetrated her.
The student said each time she recounted the alleged assault, she explained that she had not given consent. But because she had not used the phrase “sexual assault,” the district argued that it did not know that Doe was reporting one. (Fairfax County Public Schools also argued that no assault had occurred.)
After the jurors asked the trial judge for clarification on what “actual knowledge” meant, the judge advised them that there must be “direct evidence” school officials knew that the student was assaulted.
Jurors took this to mean that officials needed to know with certainty that the student had been assaulted, leading them to rule in the school’s favor. They didn’t discuss whether the school was “deliberately indifferent” to Doe’s suffering — another standard that Title IX cases must meet.
Now, with the 4th Circuit’s recent decision, lawyers can argue the case with the “correct” legal guidelines in place, said Alexandra Brodsky, a lawyer for the nonprofit legal advocacy group Public Justice who argued the case before the appellate court.
Brodsky doubts Fairfax County’s argument that school officials were unaware Doe had reported an assault.
“I don’t buy that for a second. It is very clear that the administrators involved knew what kind of report they were dealing with,” she said. “But it also shouldn’t matter because you don’t want to give schools an incentive to promote ignorance among their staff.”
“What the 4th Circuit has made clear is that willful ignorance is not a strategy to avoid liability.”
The 4th Circuit also rejected another standard, known colloquially as “the one free rape rule,” that some federal courts have followed. When courts choose to apply this rule, they require the victim to be harassed or raped again before before a Title IX case can be brought forward.
The appellate court explained that a survivor only needs to be vulnerable to further harassment, such as sharing a classroom or campus with their assailant or harasser because the school hasn’t put a safety plan in place.
Khouri said she and her client are ready to go to court again.
“The 4th Circuit decision is really a road map for what the jury will see in this next trial,” she said. It also opens the doors for others.
Children and high school students aren’t always going to report abuse with the phrases “sexual harassment” or “sexual assault,” Khouri said. The onus is on educators to “meet those students where they are and recognize abuse when it’s being shared with them.”
“If you don’t recognize it, that’s not an excuse.”