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Claims narrowed in former student’s suit

Where a woman sued the Fairfax County School Board and numerous school officials over her alleged rape, sexual assault and harassment when she was a seventh-grade student, but she failed to plead facts showing that she was been treated differently from similarly situated students or that certain defendants affirmatively created or increased the risk that resulted in her injury, these claims were dismissed.


Shortly before her 20th birthday, the plaintiff commenced this action, alleging that from October 2011 through February 2012, when she was a seventh-grade student at Rachel Carson Middle School in Fairfax County, Virginia, she was repeatedly “raped, sexually assaulted, sexually harassed, terrorized, extorted, bullied, and threatened with death by other students.” She asserted claims under Title IX, 42 U.S.C. § 1983 and state law.

The Fairfax County School Board, or FCSB, has filed a partial motion to dismiss and partial motion to strike the second amended complaint. The individual school defendants have filed a motion to dismiss.

Equal protection

To prevail on an Equal-Protection claim against the FCSB, plaintiff must show (1) she was “deprived … of a constitutional right’” and (2) that the deprivation was done “under color of [a state] statute, ordinance, regulation, custom, or usage.” Plaintiff’s second amended complaint sets forth sufficient allegations to show that she was deprived of a constitutional right.

Regarding the second element, plaintiff first argues that FCSB is liable because it maintained a custom or usage by “condonation.” But plaintiff does not include allegations that FCSB employees, either generally or as a custom, downplayed reports of sexual assault, harassment or sex trafficking of students. Plaintiff similarly fails to sufficiently allege that FCSB policymakers failed to correct its employees’ alleged unconstitutional practices due to deliberate indifference. As a result, plaintiff cannot prevail on her Equal-Protection claim premised on an unlawful custom or practice.

Plaintiff also claims that she can maintain an Equal-Protection claim against FCSB because of its “failure to properly train school employees.” However, she has failed to plead facts plausibly supporting this theory of liability.

Motion to strike

Plaintiff alleges that the purported Title IX violations led her to suffer various injuries, including “emotional distress, fear, anxiety, [and] trauma.” FCSB argues that those damages are “foreclosed by the U.S. Supreme Court’s decision in Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562 (2022).”

Because many courts have held that a motion to strike cannot be used to strike a demand for emotional damages and because plaintiff seeks emotional damages in many of her other claims, this court concludes that it would be premature at this stage to strike plaintiff’s request for emotional harm damages from Counts One and Two.

First Amendment retaliation

When plaintiff “spoke out” against sexual harassment she was experiencing, she was engaging in protected First Amendment activity. Second, she plausibly alleges retaliation; an administrator responding to a 12-year-old’s complaint of sexual harassment by conducting an investigation of a student’s scholastic history. Finally, plaintiff has adequately pleaded that A.F.’s inquiry into her past has a causal relationship to her protected First Amendment activity.

Plaintiff has also adequately pled that assistant principal S.T.’s question asking why she and her mother “were trying to ruin a young boy’s life” has a causal relationship to her protected First Amendment activity. Similarly, B.R. has sufficiently alleged that S.T. and P.A.H.’s instruction that she stay home from school has a causal relationship to her protected First Amendment activity.

Disparate treatment

Plaintiff has not adequately pleaded that she was treated differently from similarly situated students. Plaintiff has also not adequately pleaded that the individual school defendants had discriminatory animus towards her. Her Equal-Protection claim that is premised on allegations of disparate treatment is dismissed.

Substantive due process

Plaintiff’s only avenue to pleading a substantive-Due-Process violation is via the state-created danger theory. The state-created danger exception only applies “when the state affirmatively acts to create or increase the risk that resulted in the victim’s injury.” Here, however, plaintiff has not sufficiently alleged that the affirmative acts she identified “create[d] the direct danger that cause[d] [her] injury[,]” which dooms her state-created danger claim.

Remaining arguments

The individual school defendants are entitled to qualified immunity on plaintiff’s Equal-Protection claim premised on deliberate indifference to sexual harassment. In 2018, the Fourth Circuit held that a student’s right to be free from deliberate indifference to student-on-student sexual harassment was not clearly established.

Regarding whether A.F., S.T. and P.A.H. are entitled to qualified immunity on plaintiff’s First Amendment retaliation claim, the court defers ruling until the record is more fully developed. Finally, the court defers ruling on whether the individual school defendants evidenced “some degree of care” as required to defeat a gross negligence claim.

FCSB’s partial motion to dismiss and partial motion to strike granted in part, denied in part. Individual school defendants’ motion to dismiss granted in part, denied in part.

B.R. v. F.C.S.B., Case No. 1:19-cv-917, March 10, 2023. EDVA at Alexandria (Alston). VLW 023-3-120. 46 pp.

VLW 023-3-120

Virginia Lawyers Weekly