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Justices Ask US for Views on Student-on-Student Harassment (1)

May 16, 2022, 4:03 PMUpdated: May 17, 2022, 12:14 PM

The US Supreme Court on Monday invited the Biden administration to share its views on whether Fairfax, Va., may be liable to a female high school student for its allegedly lacking response after learning a male student touched her sexually during a band class bus trip.

At issue is what actions entities that receive funding under Title IX of the 1972 Educational Amendments Act can be sued for in situations involving alleged student-on-student sexual harassment. According to the Fairfax County School Board, the federal circuits are sharply divided over whether a student claiming such sexual harassment must show she experienced additional harassment after reporting it to hold a Title IX entity liable.

A ruling by the justices will potentially impact “thousands of school systems and other entities across the country,” Fairfax said in its petition seeking high court review.

The level of notice required is also at issue in the case, the school board said. The US Court of Appeals for the Fourth Circuit mistakenly ruled that an “objective standard” governs whether the school board had actual notice that the encounter between “Jane Doe” and “Jack Smith” on the bus trip amounted to sexual harassment, Fairfax said.

The proper test is whether an entity subjectively believed harassment occurred, according to the school board. The Fourth Circuit flouted Supreme Court precedent and broke from other circuits in holding otherwise, the school board said.

Fairfax is challenging the full Fourth Circuit’s 9-6 decision on Oct. 22 not to rehear Doe’s appeal in her suit against the school board. That left in place a June 16 ruling by a divided three-judge panel, which granted Doe a new trial. Doe’s high school had sufficient notice of the sexual harassment and the jury at the first trial likely rejected her claim because it was improperly instructed on the controlling standard, the panel said.

The panel also held on another novel issue that a single incident of harassment that occurs before a school is on notice can be enough to trigger Title IX liability.

Doe is opposing the school board’s bid for review by the justices.

“The Department of Justice has already said that Fairfax County School Board’s legal argument is ‘absurd.’ We expect the Solicitor General will urge the Court to deny certiorari,” Public Justice told Bloomberg Law Monday in an email. The nonprofit legal advocacy group represents Doe.

Hunton Andrews Kurth LLP represents the school board. Correia & Puth PLLC also represents Doe.

The case is Fairfax Cty. Sch. Bd. v. Doe, U.S., No. 21-968, invitation to brief 5/16/22.

(Updates May 16 story to add comment from counsel for Doe in ninth paragraph.)

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com