BREAKING: McAuliffe-Linked Law Firm, NSBA Fighting Student Who Said She Was Gang-Raped, Asks Supreme Court To Alter Title IX To Diminish Victims Rights
By Luke Rosiak•Oct 26, 2021 DailyWire.com
A law firm that employed Virginia gubernatorial candidate Terry McAuliffe has made a cottage industry out of aggressively fighting victims of alleged sexual abuse in schools, being paid huge sums by school administrators whom the girls say ignored their accusations.
In one case, the Hunton Andrews Kurth law firm, where McAuliffe served as a senior adviser from 2019 until recently, is battling a young woman who says that she was repeatedly raped on her Fairfax County middle school campus as a 12-year old and that she was slashed with a knife, burned with a lighter, and anally penetrated.
The law firm and McAuliffe’s campaign refused to comment on whether the law firm still employs McAuliffe by the deadline but McAuliffe reported income apparently linked to the firm in 2021, after announcing his run for governor of Virginia on December 8, 2020. Later advertisements from the firm for McAuliffe fundraisers refer to McAuliffe as a “former colleague.”
The girl said she was afraid of having her real name attached to the case because one of her alleged tormentors had threatened to kill her if she came forward. The McAuliffe-linked law firm is seeking to have the case thrown out because it was filed under a pseudonym, even though there is no dispute that the school system knows who she is. A judge rejected Hunton’s argument, but the firm would not relent, filing an appeal on behalf of its client, the Fairfax County Public Schools (FCPS).
In a separate case, a girl alleged that after FCPS administrators were told of an unwanted sexual incident on a band trip, a school security officer told her there was no point in seeking criminal charges, and the school gave an award to her alleged abuser. Hunton told the court that the school system lost documentation showing its investigation of the allegations – in part because it was not using a sexual harassment allegation database that it had promised to use pursuant to a federal settlement in the other girl’s case. In both cases, a women’s rights group filed “amicus” briefs to express opposition to Hunton’s arguments.
Joining McAuliffe’s former law firm and FCPS in the latter case was the National School Boards Association, which filed its own amicus brief. The trio is banking on an aggressive and novel interpretation of Title IX, a law that provides protections in sexual assault cases, that would be more favorable to school administrators and less favorable to victims. The Fourth Circuit Court of Appeals forcefully smacked down their logic, but Hunton has filed to take the case to the Supreme Court. A win there would mean the same interpretation would apply to schools across the country.
The Daily Wire’s review of Hunton’s work brings into stark relief themes that have come to define the race for Virginia governor. McAuliffe’s statement that parents’ role in schools should be limited; the National School Board Association’s implication that parents angry at school policies could be akin to “domestic terrorists;” and the financial ties between the McAuliffe-linked law firm, his campaign, school systems, and teachers unions.
The cases tie thematically and legally to an earlier exclusive Daily Wire report about a sexual assault case in Loudoun County. Loudoun County Public Schools blamed its actions in that case on Title IX, saying it would lobby for changes to make it more favorable to victims. Yet the records show that the NSBA, the Virginia School Board Association, and the former law firm of the state’s possible governor are actively seeking the opposite.
The review also revealed a pattern of alleged cover-ups of shocking mistreatment of girls in public schools by bureaucrats who may seek to avoid bad publicity, negative statistics, and accountability. The incidents highlight the often divergent interests of parents and the school system bureaucrats funded by their tax dollars.
On September 21, a 22-year old woman sat by her lawyer as a judge got unusually snippy at the opposing counsel. The lawyer from Hunton seemed to be implying, at times, that the woman might not exist.
The woman had come forward to say that she had been repeatedly raped in a Fairfax middle school when she was 12. She’d been saying so since the time, back in 2012. She’d told school administrators, who she said ignored her. She’d filed a complaint with a federal civil rights body, which ordered FCPS to make changes as a result, some of which FCPS failed to do. When she became an adult, just before the statute of limitations ran out, she sued her alleged rapist, the school system, and several school officials.
The story she tells is shocking and horrifying. One reason it went unnoticed: the efforts of the Hunton law firm. Considering her assailant had allegedly threatened to kill her if she came forward, and given the highly personal nature of the allegations, she filed the case pseudonymously. Though it’s not uncommon for lawsuits to be filed by a “Jane Doe,” Hunton sought to have the case thrown out because the plaintiff did not use her real name. The judge didn’t buy Hunton’s argument and ordered the case to head towards trial. But Hunton was relentless. It appealed.
On that day last month, Hunton argued again and again to the Fourth Circuit of Appeals that the case should be thrown out for its reliance on a pseudonym. The judge made clear that he saw no valid legal basis for Hunton’s argument. FCPS knew well who the woman knew in court filings by her initials, B.R., was.
It had known for ten years.
She was a real person, with real scars. And she was sitting right there in the room.
In one invoice from March alone, Hunton billed FCPS $47,628.16 for its work attempting to keep B.R.’s case from reaching a jury, accounting for nearly a third of its total bill that period.
If the power of a school bureaucracy were personified, it might take the form of Hunton Andrews Kurth, a law firm that has represented school districts in these types of situations ever since its predecessor firm, Hunton & Williams, fought to preserve school segregation in a case that — grouped with several others on appeal — became the 1954 landmark Supreme Court decision Brown v. Board.
In recent years, the nation’s tenth-largest school district, Fairfax County Public School, has paid Hunton more money than it has paid almost any other company. Hunton’s work for FCPS frequently took the form of fighting parents who alleged problems, and it had a reputation for doing so aggressively. Lastmonth, it filed a lawsuit against the mother of a special-needs student for possessing records that the school district provided her under the Freedom of Information Act. The records included Hunton’s billing invoices; FCPS says it mistakenly forgot to redact as much information as it meant to, and it is holding the mom responsible for its mistake.
Its lawyers on school issues included attorneys like Reiko Koyama, whose career highlights “Defend[ing] a major alcoholic beverage producer in a consumer class action alleging claims of false and misleading advertising.”
Hunton has close ties to the Virginia government. The running point for Hunton’s FCPS work was Stuart Raphael. In 2014, when McAuliffe began his first term in the governor’s mansion, Raphael was tapped as the state’s solicitor general. In 2017, as McAuliffe’s term came to a close, his lieutenant governor Ralph Northam replaced him in the governor’s mansion; Raphael returned to Hunton, and McAuliffe soon joined him there.
From 2014 to 2018, the Fairfax school system paid Hunton some half a million dollars a year. In July of 2019, it appointed McAuliffe — who is not a lawyer — as a senior advisor for cybersecurity. FCPS’s payments to Hunton ballooned to about $4.4 million in calendar year 2019, $2.5 million in 2020, and $3 million so far in 2021.
In October 2020, FCPS data was held for ransom by foreign hackers, and Hunton was paid at least $250,000 to handle the situation.
In August 2021, Virginia Democrats sought to wrest control of the courts from conservatives by packing the court — dramatically expanding an appellate court. Raphael was appointed to a judgeship through a fast-track process. As Raphael returned to government, McAuliffe sought his own return: Virginia’s constitution bars governors from successive terms in office, but nothing prevented a former governor from resuming his post after a spin through the so-called revolving door.
McAuliffe reported receiving more than $250,000 in 2021 for “cybersecurity/law” on an ethics form marked as covering the period of 2021, though it is not possible to know how much because that is the maximum dollar range broken out on campaign ethics forms. When he announced his new bid for governor, Hunton contributed $16,000 to his campaign. Among his campaign’s largest funders are teachers’ unions: the two national teachers’ unions donated nearly a million dollars combined.
As the Daily Wire reported previously, McAuliffe promised to minimize the role parents would play in schools, infamously barking in a debate: “I don’t think parents should be telling schools what they should teach.” His embrace of teachers union priorities, including coronavirus restrictions, pitted him against parents who juggled both work and watching their children as Virginia districts kept schools closed for longer than almost any other state.
But if teachers union cash flowed to McAuliffe’s campaign based on the prospect that, once in control of the purse strings of government, the favor would be returned many times over, a similar dynamic was at play with FCPS and Hunton. FCPS shoveled enormous quantities of taxpayer cash to Hunton. But if Hunton did its job, the district and its administrators would not face liability in cases when lawsuits alleged that problems had occurred, then been swept under the rug.
Problems like B.R. being abused.
“A 12-year old was repeatedly sexually assaulted and egregiously betrayed by an institution all kids have drilled into them that they’re supposed to trust almost like a god. She was violated by the perpetrators but also by the administrators who did nothing,” Monica Beck, a longtime Title IX attorney with the Fierberg National Law Group who is representing B.R., told The Daily Wire.
B.R. filed her lawsuit in 2019 based on conduct she says occurred from late 2011 to early 2012. The complaint says that she was “raped, sexually assaulted, sexually harassed, terrorized, extorted, bullied, and threatened with death by other students at Rachel Carson Middle School.”
It says she made “specific and repeated complaints to FCPS administrators”and “begged them for help” but “they did nothing.”
For example, the complaint says that on November 21, 2011, B.R. and her mother met with assistant principals and a guidance counselor, taking with them a sexually explicit voicemail from the student, and saying that she “feared for her safety.” The assistant principal said the suspect “had been in enough trouble” and asked B.R. and her mother not to “ruin a kid’s life,” according to the lawsuit.
The administrators said they would move B.R.’s locker away from her victimizers — but did not actually take even that modest measure, the complaint said.
Hunton did not provide a comment for this story. A spokesperson for FCPS said, “FCPS does not comment on active litigation.” Lawyers for two fellow students who are named in B.R.’s complaint did not return a request for comment; Michael E. Kinney, who represents school employees who are named individually in the lawsuit, declined to comment except to note that the students and staff members have denied the allegations in court filings.
“As a result of FCPS’s half-hearted investigation into Jane Doe’s reports of sexual harassment and bullying at RCMS, FCPS emboldened Jane Doe’s peers to retaliate against her for ‘snitching’ … As FCPS students grew more confident in their ability to assault Jane Doe and escape the consequences, they became more overt with their advances,” B.R.’s complaint says. “Beginning in December 2011 and continuing through February 2012, [a peer, who she named] and other students raped Jane Doe on RCMS campus during and after school hours.”
“On January 27, 2012, Jane Doe emailed [the school’s principal] and recounted the ‘sexual harassment, physical harassment, and name calling’ she endured at the middle school. An administrator told her in February that the school system would investigate.
On March 1, 2012, the twelve-year-old confided in her parents that the abuse was worse than she had initially let on: that she had been raped. B.R.’s “parents filed a police report on March 2, 2012. [A detective, who she named], a former FCPS employee, interviewed Jane Doe on March 5, 2012. Jane Doe underwent a SANE (Sexual Assault Nurse Examiner) evaluation on March 5, 2012. The evaluation revealed contusions inside Jane Doe’s anus which ultimately corroborated her report of anal penetration. [The detective] met with [the school’s principal] on March 6, 2012 to discuss Doe’s rape. FCPS permitted Jane Doe’s rapist to remain on campus but took no steps to facilitate Jane Doe’s return to a safe and supportive school environment,” the complaint says.
The alleged rapist was not criminally charged, Beck said. B.R. stayed home from school. School officials “directed that [B.R.’s] homebound instructors use ‘code names’ in emails regarding Jane Doe so as not to be subject to discovery in a lawsuit and to avoid public disclosure requirements,” the suit says.
The lawsuit says that at the time, she submitted a complaint to the federal Department of Education’s Office of Civil Rights (OCR) “advising of additional instances of rape, anal rape, and physical assault with weapons she endured, as well as death threats directed to her.”
A letter from OCR, which has been on the agency’s website for years, says “OCR’s initial investigation found that [FCPS] did immediately conduct an inquiry into most allegations of sexual harassment brought by the Student and her parent. However, OCR identified some possible concerns with the adequacy of the Division’s investigation.”
“OCR has further concerns that the Division does not have a system to track reports of sexual harassment to determine whether there may be a hostile environment at a particular school, whether individual schools are responding in a prompt and appropriate manner to reports of sexual harassment, whether the Division’s efforts to educate students regarding sexual harassment are effective, or whether school-based investigations of reports of sexual harassment are prompt and equitable.”
On November 11, 2014, FCPS entered into a Voluntary Resolution Agreement with the federal government that required the school system to take certain steps. B.R. says they never took them.
One required FCPS to create and use “a centralized database in the Division in which documentation of Division investigations and outcomes of sexual and gender-based harassment allegations are compiled and maintained.”
Another case involving FCPS and aggressively fought by Hunton was ruled on by an appeals court in June 2021, and it was made clear that the school district did not do this.
That case involves an Oakton High School student known as Jane Doe, who alleges that she was subject to non-consensual sexual activity by an older boy on a school bus during a band trip in 2018. There are conflicting accounts about what actually happened that day, and even if it happened as the complaint alleges, the incident is less shocking. At issue, rather, is how administrators reacted when they heard about it. And its true significance is the way Hunton is arguing in court to adopt a legal definition that could shield school administrators from liability in a vast array of situations.
The complaint alleges that after the incident, a school security officer told Doe to pen a written statement; she wrote that she had been subjected to sexual activity despite initial physical resistance. The security guard asked if her parents planned to take legal action, and “told Doe that if she went to court she would lose, it would be a waste of money, and ‘the most that could happen to [Assailant] is being charged with battery,’” her lawsuit says. (The school denied this, and many of Doe’s claims, in legal filings, and said Jane had “rage”when she found out the student had a girlfriend.)
“The school did not notify Doe’s parents that their daughter had written and signed a statement about what happened on the band trip until several days later,” the lawsuit added. When the parents met with the principal and her mother told the principal her daughter had been sexually assaulted, the “school seemed concerned only about the school’s potential exposure to liability, not the safety of its students,” per the filing.
Emails showed administrators joking about the incident, making references to the number of “inches” of the alleged assailant’s penis and to the American Pie quote, “one time at band camp.”
A staff member who was aware of the alleged assault later gave the “[a]ssailant an award reserved for the band member with exceptional skill and personal leadership,” the complaint says.
After the suit was filed, FCPS erased the contents of its security computer and told the court that as a result, it did not have statements it gathered about the incident, which would have had to be provided in discovery, Doe’s attorneys said. The evidence should have also been in a second system: the sexual harassment complaint database that FCPS was obligated to create and maintain under the B.R. federal settlement. It turned out that many schools simply weren’t using the database at all.
A jury found that Jane Doe had been sexually harassed but that school administrators were not responsible for it. But the case went to appeal based on a dispute over the meaning of legal terms that trigger requirements under Title IX: administrators’ “actual knowledge” or “actual notice” of an incident.
Hunton seemed to argue that administrators don’t have a duty under Title IX unless they subjectively knew an incident occurred, not that they were objectively told of one. “There was a discrepancy in their stories about whether Jane initially pulled her hand away from Jack’s penis: she said she did, he said she didn’t. [The principal] didn’t know which was true,” Hunton argued.
It said the precedent set in an earlier case called Baynard would “require proof that [the principal] had actual knowledge, subjectively measured, that Jane was sexually harassed.” In other words, though the principal may have been told that an incident of sexual harassment occurred, she had to understand it that way before Title IX kicked in.
Baynard is a case in which a principal was repeatedly told that a teacher was a child molester, then a librarian told a principal she saw a child (Baynard) sitting on his lap, but the principal “naïvely believed [the teacher]’s assurance that he was only having an ‘innocent ‘father-son chat.” The principal was therefore not liable because she did not believe he was molesting a child even if she should have. Under that precedent, school officials’ “subjective” judgment, not what they are actually told, is key, Hunton argued.
B.R.’s attorney Monica Beck – who was not involved in Jane Doe’s case but is familiar with it because of the overlap with her own case – said that interpretation was a catch-22 that would have a dramatic impact on other cases. “In essence, a school administrator would actually have to witness a rape or have it recorded on video to have it be a real Title IX complaint,” she told The Daily Wire. “’We didn’t have ‘actual knowledge’ [and therefore have to investigate] because we didn’t actually know a rape occurred?’ If you don’t investigate, how are you ever going to know for sure that it happened?”
Apparently recognizing the way that such a definition, if endorsed by a high court, would shield school officials who allegedly failed to act to protect children across the country, the National School Board Association, as well as the Virginia School Board Association, filed amicus briefs supporting Hunton’s position. The National School Board Association’s position was that it should be up to “trained school officials,” not the second-guessing of a “reasonable person,” whether they had awareness of an incident.
“Title IX neither requires nor permits this Court to substitute its views, or the views of a ‘reasonable person,’ for that of trained school officials. Affirming a subjective ‘actual knowledge’ standard is both necessary and appropriate to protect those officials’ judgment,” the NBSA wrote.
Twenty-four women’s and human rights groups sided with Doe, filing or joining amicus briefs opposing Hunton’s proposed definition.
On one side in court was a progressive, nonprofit law firm called Public Justicethat represents Doe and works to “combat social and economic injustice, protect the Earth’s sustainability, and challenge predatory corporate conduct and government abuses.” (The firm did not return a request for comment.) On the other side was Hunton. In June, the Fourth Circuit of Appeals smacked down Hunton’s logic.
“If these facts do not show that the School Board had actual notice, we don’t know what would,” it wrote. “The record brims with unrebutted evidence demonstrating that the School Board, through appropriate officials, received multiple reports that objectively provided notice of an allegation,” the appellate court wrote.
Hunton’s “reliance on Baynard is misplaced for two reasons… Moreover, regardless of what we held in Baynard, our subsequent en banc decision in Jennings is the controlling law,” it wrote.
But Hunton would not relent. It has signaled that it plans to take the case to the Supreme Court, where if successful, it would dramatically loosen Title IX protections for school children across the country while protecting administrators who failed to act.
After an alleged school bathroom rape in Loudoun County — Fairfax’s immediate neighbor to the west — and repeated denials by school system officials that it had occurred, Loudoun County Public Schools this month blamed Title IX.
Loudoun superintendent Scott Zeigler said that “Throughout these recent events, the Loudoun County Public Schools complied with our obligations under Title IX. However, we have found the process outlined under Title IX by the U.S. Department of Education to be insufficient in addressing issues at the K-12 level. We believe the process could be strengthened with some reforms. I am recommending to the Loudoun County School Board that this issue is placed on our legislative agenda and that the board and its allied groups actively lobby for changes to allow more protections to victims of sexual harassment and sexual assault.”
But the court filings show that the National School Boards Association, FCPS, and the former law firm of the Democratic gubernatorial candidate are actually seeking the reverse.
The response illustrates one final, disturbing element in the complex web between Democrat politicians, lawyers, government employees, and teachers unions: the way partisanship among school employees may have contributed to failures to investigate sexual assaults in recent years.
During the Donald Trump presidency, left-leaning media ran articles painting his education secretary, Betsy DeVos, as making changes to Title IX, particularly at colleges, in a way that adds protections for the accused. News outlets like HuffPost were rife with headlines like “Betsy DeVos’s Campaign To Roll Back Sexual Assault Survivor Rights Is Complete.”
The longtime Title IX women’s-rights attorney Beck said that soon after, she noticed K-12 school systems pulling back on taking action in sexual assault cases.
But this may have been more because the educational establishment’s partisanship leanings primed it to believe headlines that a president they disliked would actually block them from protecting victims and punishing assailants.
Unsurprisingly, Beck said that the federal government did not actually stop K-12 schools from taking action against rapists.
The changes under DeVos were thousands of pages long, most of them simply codifying best practices. Some involved how college campuses deal with rapes, but at the K-12 level, DeVos’ changes made it easier for schools to handle alleged sexual assault.
“Some of the DeVos changes address how much training should administrators have, how much should the people investigating have? There were some really good takeaways in those changes,” Beck said. Previously “in K-12 in order for a school to be on notice that a student had been sexually assaulted, the child had to tell a principal or assistant principal. If they told a teacher it didn’t count. DeVos changed it because a child trusts and knows his teacher, and doesn’t know who the Title IX coordinator is.”
“Somehow a lot of schools are interpreting this as prohibiting them from taking any actions against perpetrators whatsoever… the way schools are interpreting it, I’ve seen them interpreting it in ways that aren’t supported.”
LCPS has implied that the reason it moved the alleged May 28 rapist to a different school — where he was arrested for a different classroom assault on October 6 — was because Title IX required it to do its own investigation, which it could not do until after the police had completed their work. FN But the federal government has long been clear that schools do not need to wait until a criminal case is closed to conduct their own investigation.
In the federal agreement in B.R.’s case, the Department of Education reminded FCPS that “Although a school division may need to delay temporarily the fact-finding portion of a Title IX investigation while the police are gathering evidence, once notified that the police department has completed its gathering of evidence (not the ultimate outcome of the investigation or the filing of any charges), the school division must promptly resume and complete its fact-finding for the Title IX investigation.”
In the case of the May 28 rape, a rape kit was administered the same day, and the suspect was arrested in July, well before he started the next school year at a new school.
Title IX under DeVos also requires that a school is “obligated to conclude a grievance process within a reasonably prompt time frame.”
LCPS did not return a request for comment on how Title IX was actually to blame for its handling of the assault, and what changes it intended to lobby for.
As for B.R., she is just hoping to heal.
“As much as the school system tries to deny her a day in court… If you knew the family they were fighting against it would sicken you,” a family friend and parent of a classmate who has known B.R. since she was six told The Daily Wire.
“Her parents were very involved and came from an intact family,” the parent — speaking anonymously to help shield B.R.’s anonymity — said. The school system basically gave her a choice: “continue being raped or go to school.”
“This weight has sat on us for years as a community,” the parent said.
Beck, B.R.’s attorney, said Hunton’s strategies are unusually cutthroat. “We’re dealing with a very aggressive school district here that makes it very hard for students who are seeking justice,” she said.
“How about they put that money towards real training and compensating the victims they failed instead of paying a law firm millions of dollars?”