United States District Court, E.D. Virginia, Alexandria Division
JOHN DOE 2, by and through his father and next friend, JOHN DOE 1, Plaintiffs,
THE FAIRFAX COUNTY SCHOOL BOARD, et al. Defendants.
M. Brinkema United States District Judge
the Court is defendant Fairfax County School Board's
Motion for Summary Judgment [Dkt. No. 100], which has been
fully briefed and argued. For the reasons stated in this
Memorandum Opinion, the Motion will be granted.
John Doe 2 (the "Student"), a 16-year-old student,
and John Doe 1, the Student's father and next friend
(collectively, "plaintiffs"), have filed a
five-count Complaint against the Fairfax County School Board
(the "School Board" or "defendant"),
alleging violations of Title IX under 20 U.S.C. § 1681
(Count I), the First and Fourteen Amendments pursuant to 42
U.S.C. § 1983 (Counts II and III, respectively), and the
Due Process and Free Speech Clauses of the Virginia
Constitution (Counts IV and V, respectively). Compl. [Dkt.
No. 1]. For relief, plaintiffs seek an injunction restraining
defendant from continuing to enforce any punishment against
the Student and including any of the hearing officers'
findings and sanctions on the Student's academic record,
as well as damages, attorneys' fees, and costs.
Id. at 12-13.
lawsuit arises out of allegations made by three of the
Student's female classmates at Lake Braddock Secondary
School ("Lake Braddock") concerning the
Student's inappropriate touching and comments.
Specifically, the girls alleged that on February 6, 2018, the
Student touched the butt and crotch of Student A while they
were in the library; that he touched Student B on her breast,
hip, and butt while in Spanish class and commented on Student
B's fake fingernails by saying "you'd cut
yourself if you fingered yourself with those nails"; and
that at crew practice he touched his genitals through his
spandex and asked Student C "how a girl doesn't
orgasm when she puts a tampon in." Id. ¶
three female students approached a vice principal to report
the Student on February 12, 2018. Id. ¶ 9.
Three days later, the Student was removed from class and he,
along with his parents, met with school administrators to
discuss the allegations. In that meeting, he explained that
he had touched Student A accidentally,  denied touching
Student B, and admitted to making both the fingernail and
tampon statements but stated that the tampon statement was a
joke and was made to two other female friends, not to Student
C. Id. ¶¶ 11-15; Def.'s Brief in Supp.
of Mot. for Summ. J. [Dkt. No. 101] ("MSJ") ¶
35, at 7. The Student was subsequently suspended for ten
days. Compl. ¶ 16. The Student and his parents appealed
the suspension on February 21, 2018. MSJ ¶ 40, at 7.
hearing was held on March 9, 2018. Compl. ¶ 17.
Plaintiffs, along with counsel, were present at the hearing
conducted by hearing officers Nancy Kreloff and J.D.
Anderson. Id. Assistant Principal Eileen Hoppock and
Associate Principal Laura Waterman presented the allegations.
Id. ¶ 18. In the Student's defense,
plaintiffs provided a psychosexual risk assessment, two
polygraph reports, and character reference letters.
Id. ¶ 25.
March 23, 2018, Kreloff issued a decision finding that the
Student had "committed serious repeated offenses in
violation of School Board policy by engaging in improper and
offensive touching of female students and sexual harassment
of female students." Id. ¶ 29. As a
sanction, the Student was removed from Lake Braddock and
reassigned to an "alternate educational setting within
[the Fairfax County Public School] system." Id.
¶ 32. The Student successfully completed the 2017-2018
school year at Bryant Alternative Learning Center and was
reassigned to South County High School for the 2018-2019
school year. MSJ ¶ 65, at 10. Plaintiffs appealed the
hearing officers' decision to the School Board on March
29, 2018, which denied the appeal on April 12, 2018. Compl.
¶ 33; MSJ ¶ 66, at 10. On May 11, 2018, plaintiffs
petitioned the Circuit Court of Fairfax County to review the
School Board's decision. MSJ ¶ 73, at 11. Under
Virginia law, a circuit court must sustain the School
Board's action "unless the school board exceeded its
authority, acted arbitrarily or capriciously, or abused its
discretion." Id. ¶ 74 (citing Va. Code.
Ann. § 22.1-87). At a hearing on December 14, 2018, the
circuit court denied the Petition for Review, ruling that
plaintiffs "failed to show that the School Board
exceeded its authority, acted arbitrarily or capriciously,
abused its discretion or violated any of John Doe 2's due
process rights." Id. ¶¶ 75-76 (citing
Dkt. No. 62-1). Although plaintiffs initially appealed the
decision, they have abandoned that appeal. May 10 Hr'g
Tr. [Dkt. No. 132] 8:20-24. On July 6, 2018, while the
Fairfax Circuit Court matter was pending, plaintiffs filed
this Complaint, and on March 22, 2019 defendant moved for
Standard of Review
judgment is appropriate where the record demonstrates
"that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). Although the Court must view
the record "in the light most favorable to the
non-moving party," Dulanev v. Packaging Corp. of
Am.. 673 F.3d 323, 324 (4th Cir. 2012), "[t]he mere
existence of a scintilla of evidence in support of the
[nonmovant's] position will be insufficient" to
overcome summary judgment, Anderson v. Liberty Lobby.
Inc., 477 U.S. 242, 252 (1986): see also Am. Arms
Int'l v. Herbert. 563 F.3d 78, 82 (4th Cir. 2009).
Rather, a genuine issue of material fact exists only "if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson. 477
U.S. at 248. Moreover, "[t]he mere existence of some
alleged factual dispute" cannot defeat a motion for
summary judgment. Hooven-Lewis v. Caldera. 249 F.3d
259, 265 (4th Cir. 2001). Instead, the dispute must be both
"material" and "genuine," meaning that it
must have the potential to "affect the outcome of the
suit under the governing law." Id.
Preclusive Effect of State Court Ruling
first argues that the Fairfax County Circuit Court's
conclusion that defendant had not violated the Student's
due process rights precludes plaintiffs from relitigating the
issue in this Court. In Virginia, "[t]he doctrine of
collateral estoppel precludes the same parties to a prior
proceeding from litigating in a later proceeding any issue of
fact that actually was litigated and was essential to the
final judgment in the first proceeding," and this
doctrine applies notwithstanding that the causes of action or
the relief sought in the two proceedings may differ.
Whitley v. Commonwealth. 260 Va. 482, 489 (2000)
(citations omitted). In Whitley, the Supreme Court
of Virginia enumerated four elements that must be satisfied
before a party can invoke the doctrine of collateral
estoppel, or issue preclusion:
(1) the parties to the two proceedings must be the same; (2)
the factual issue sought to be litigated must have been
actually litigated in the prior proceeding; (3) the factual
issue must have been essential to the judgment rendered in
the prior proceeding; and (4) the prior proceeding must have
resulted in a valid, final judgment against the party to whom
the doctrine is sought to be applied.
Id. It is the party seeking to preclude a factual
issue that bears the burden of demonstrating that these four
elements are satisfied. See Bates v. Devers. 214 Va.
667, 671 (1974). Issue preclusion applies "only when the
issues in each action are identical, and the issues are not
identical when the legal standards governing their resolution
are significantly different." SAD Inst., Inc. v.
World Programming Ltd.. 874 F.3d 370, 380 (4th Cir.
2017) (citation omitted).
Rule l:6(a) of the Rules of the Virginia Supreme Court, which