Doe v. Fairfax Cnty. Sch. Bd.

1 F.4th 257

Jane DOE, Plaintiff - Appellant,

v.FAIRFAX COUNTY SCHOOL BOARD, Defendant - Appellee.

National Women's Law Center; Chicago Alliance Against Sexual Exploitation ; Clearinghouse on Women's Issues; Desiree Alliance; Feminist Majority Foundation; Forge, Incorporated; Gender Justice ; Girls Inc. ; Human Rights Campaign; In Our Own Voice: National Black Women's Reproductive Justice Agenda; KWH Law Center for Social Justice and Change; Legal Aid at Work; National Asian Pacific American Women's Forum; National Association Of Social Workers, and Its Virginia Chapter; National Crittenton; National Network To End Domestic Violence ; National Partnership for Women & Families; National Women's Political Caucus; Religious Coalition for Reproductive Choice; Stop Sexual Assault in Schools; Women's Law Center of Maryland, Incorporated ; Transgender Law Center; Women Lawyers Association of Los Angeles; Women Lawyers on Guard Inc.; Women's Bar Association of the State of New York; Women's Law Project, Amici Supporting Appellant.

National School Boards Association; Virginia School Boards Association ; Maryland Association of Boards of Education; North Carolina School Boards Association; South Carolina School Board Association, Amici Supporting Appellee.

No. 19-2203

United States Court of Appeals, Fourth Circuit.

Argued: January 25, 2021

Decided: June 16, 2021

ARGUED: Alexandra Brodsky, PUBLIC JUSTICE, PC, Washington, D.C., for Appellant. Stuart A. Raphael, HUNTON ANDREWS KURTH LLP, Washington, D.C., for Appellee. ON BRIEF: Linda M. Correia, Lauren A. Khouri, CORREIA & PUTH, LLC, Washington, D.C.; John R. Ates, ATES LAW FIRM, PC, Towson, Maryland; Adele P. Kimmel, PUBLIC JUSTICE, PC, Washington, D.C., for Appellant. Trevor S. Cox, Richmond, Virginia, Sona Rewari, HUNTON ANDREWS KURTH LLP, Washington, D.C., for Appellee. Emily Martin, Neena Chaudhry, Sunu Chandy, Elizabeth Tang, NATIONAL WOMEN'S LAW CENTER, Washington, D.C.; Emily P. Mallen, Marisa S. West, Michele L. Aronson, SIDLEY AUSTIN LLP, Washington, D.C., for Amici National Women's Law Center, et al. Robert W. Loftin, Summer L. Speight, Heidi E. Siegmund, Richmond, Virginia, R. Craig Wood, MCGUIREWOODS LLP, Charlottesville, Virginia, for Amici National School Boards Association, Virginia School Boards Association, Maryland Association of Boards of Education, North Carolina School Boards Association, and South Carolina School Boards Association.

Before NIEMEYER, WYNN, and THACKER, Circuit Judges.

Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Thacker joined. Judge Niemeyer wrote a dissenting opinion.

WYNN, Circuit Judge:

Plaintiff "Jane Doe," a former student at Oakton High School in Vienna, Virginia, brought this Title IX action against the Fairfax County School Board ("School Board"), alleging that her school's administrators acted with deliberate indifference to reports that she had been sexually harassed by another Oakton student, "Jack Smith."¹ At the end of a two-week trial, the jury ruled against Doe, based on its finding that the School Board did not have actual knowledge of the alleged sexual harassment. Doe subsequently moved for a new trial, which the district court denied. For the reasons set forth below, we reverse that judgment and remand the case for a new trial.

I.

A.

The following facts are undisputed except where noted otherwise.

On March 8, 2017, Doe, a junior at Oakton High School and a member of the school's symphonic band, traveled with the band by bus to Indianapolis to perform at a music festival. During the bus trip, Doe sat next to Smith, an older male student. Smith told Doe that he was cold and asked her if she had a blanket. When Doe offered her blanket to Smith, he put it over both of their bodies.

Doe alleges that Smith then repeatedly touched her breasts and genitals and penetrated her vagina with his fingers despite her efforts to physically block him, and that he also repeatedly put her hand on his penis even after she moved it away. She testified at trial that during this incident, she felt so "confused," "shocked," and "scared" that she was "frozen in fear the whole time." J.A. 1712, 1800.²

Soon after arriving in Indianapolis, Doe told two friends about the incident. They, in turn, relayed what they had heard to school administrators, allegedly reporting that Smith had touched Doe "down her pants and up her shirt" without her consent, "forced her hand on his penis," and "sexually assaulted [Doe.]" J.A. 383–86, 419–24.

At trial, Assistant Principal Jennifer Hogan testified that before the end of the five-day band trip, she knew that she was dealing with the "possibility" of a "sexual assault." J.A. 1186–87. But school officials—including Assistant Principal Michelle Taylor, who accompanied the band to Indianapolis—took no action regarding these reports during the trip, and they did not speak to either Doe or her parents about what had happened on the bus ride.

Once the band returned from its trip, Assistant Principal Hogan called Doe into her office for an interview and requested that Doe provide a written statement. Doe's statement read: "I moved my hand away but [Smith] moved my hand back onto his genitals. I was so shocked and scared that I did not know what to say or do. He then started to move his hands towards me and I tried to block him but he still put his hands up my shirt and down my pants." J.A. 2515. During this meeting, Oakton's Safety and Security Specialist, Wally Baranyk, asked Doe if the sexual activity had been consensual, and Doe responded, "I don't think it was consensual." J.A. 2518. Hogan interpreted this statement as meaning that Doe "didn't want to be a participant" and that there was "a lack of consent." J.A. 1207–08.

Hogan and Baranyk then interviewed Smith, who initially denied that he touched Doe sexually against her will or made her touch his penis without her consent. But later in the meeting, he changed his story, admitting that he did in fact "grab[ ]" her and touch her breasts. J.A. 1332–33. He continued to deny that he touched Doe under her pants.

Assistant Principal Hogan also spoke with two other band students to see if they had seen anything on the bus. Meanwhile, school officials continued to receive reports from other concerned members of the school community—including both students and parents—suggesting that Doe had been a victim of a "non-consenting sexual act" and "sexual harassment." J.A. 2523, 2526.

After the investigation, Hogan and Principal John Banbury discussed "whether this was or wasn't a sexual assault" and ultimately concluded that "the evidence that [they] had didn't show that [they] could call it a sexual assault." J.A. 1291. They also decided against disciplining either Doe or Smith for engaging in sexual activity while on a school trip.

Afterwards, in a meeting between Hogan and Doe's parents, Doe's mother stated that Smith's touching of Doe was nonconsensual and thus "a sexual assault." J.A. 1298–99, 1613. Hogan responded that the administration had concluded that what happened on the bus did not amount to sexual assault.

After the band trip, Doe sought and received professional counseling for multiple weeks, and she was diagnosed with adjustment disorder with anxiety.³ During the rest of her junior year, Doe was terrified of seeing or being near Smith, which caused her to go out of her way to avoid him at school and also to refrain from fully participating in band activities. Doe stated at trial that she felt "so uncomfortable being around ... Smith that [she] had to sit out of band class" for a period of time, instead attending class by sitting in a small practice room by herself. J.A. 1755. And Doe continued to find it difficult to enjoy and fully participate in her band classes even after Smith had graduated. Meanwhile, her parents requested, and her teachers provided, a number of accommodations to help Doe cope with the psychological and emotional trauma resulting from the alleged sexual assault.

B.

Doe brought the instant Title IX action against the School Board in May 2018, asserting that her school had acted with deliberate indifference to reports of her sexual assault. The case went to trial in July 2019. During trial, the School Board moved for judgment as a matter of law, arguing that Doe could not prove deliberate indifference or any deprivation of access to educational opportunities or benefits. The district court denied the motion.

Ultimately, the jury returned its verdict for the School Board. The jury found that Smith had sexually harassed Doe and that the harassment had been severe, pervasive, and offensive enough to deprive Doe of equal access to the educational opportunities or benefits provided by her school. However, the jury also found that the School Board did not have actual knowledge of the alleged sexual harassment. Because that finding ended Doe's claim, the jury did not reach the question of whether the School Board had acted with deliberate indifference to the alleged harassment.

After the district court denied Doe's motion for a new trial, Doe filed a motion to reconsider, which was also denied. She timely appealed.

II.

Doe raises several different grounds for granting a new trial or, alternatively, vacating the district court's decision and remanding for reconsideration of her motion for a new trial. But principally, she argues that the district court erred by misconstruing what it means for a school to have actual notice or knowledge of alleged harassment in Title IX cases, and that a new trial must be granted because no evidence in the record supports the jury's verdict under the correct legal standard.

We agree. As discussed below, we hold that a school's receipt of a report that can objectively be taken to allege sexual harassment is sufficient to establish actual notice or knowledge under Title IX—regardless of whether school officials subjectively understood the report to allege sexual harassment or whether they...