In an order yesterday in Doe v. Fairfax County School Board, the Fourth Circuit voted by a margin of 9 to 6 (along ideological lines) to deny a school board’s petition for rehearing en banc of a divided panel decision in June that overturned a jury verdict in favor of the school board. The plaintiff in the case had sued the school board under Title IX, alleging that her school had acted with deliberate indifference to reports that she had been sexually assaulted by a fellow student on a bus trip. She will now be able to pursue a new trial.
Three judges issued opinions regarding the denial of rehearing en banc.
Judge James Wynn, author of the panel opinion, wrote to object to his fellow judges’ issuance of dissents from denial of rehearing—dissents that he says “read like editorials or legal commentary” on the panel decision and “provide next to no explanation” why the standard for en banc rehearing is met—and to respond to those dissents.
Judge J. Harvie Wilkinson argued in his dissent that under Supreme Court precedent (specifically, the Pennhurst doctrine) “Title IX cannot be read to impose liability on local school systems for a single isolated incident of pre-notice sexual harassment in schools, because that condition of Title IX does not begin to flow unambiguously from the text of the statute.”
Judge Paul Niemeyer, who dissented from the panel opinion, charges that the panel decision “extends the liability of a high school under Title IX to cover damages sustained by a student from a single, isolated incident of student-on-student sexual harassment, of which the school had no knowledge until after the fact.”
I’ll leave it to interested readers to sort through the back and forth. I find it difficult to summarize the exchanges, both in yesterday’s opinions and in the panel decision, in part, I think, because the judges seem to have very different reads on what the challenged jury finding actually means and on what the school’s alleged indifference consists of.