EXCLUSIVE: McAuliffe-Linked Law Firm Fighting Virginia Student Who Said She Was Gang-Raped

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Oct 28, 2021, 6:41:33 AM10/28/21
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A law firm that employed Virginia gubernatorial candidate Terry
McAuliffe is being paid handsomely to fight victims of alleged sexual
abuse in schools, on behalf of a school system that the girls say
failed to protect them.

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, anally penetrated, and gang raped.

The law firm and McAuliffe’s campaign did not return request for
comment, 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 him as a “former colleague.”

The girl in the middle school case said she was afraid of having her
real name attached because one of her alleged tormentors had threatened
to kill her if she came forward. The law firm is seeking to have the
lawsuit 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 it filed 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 – which occurred 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 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 smacked down their logic, but Hunton
has signaled its intent 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 highlighted 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 first ask permission. The judge didn’t buy Hunton’s
argument and ordered the case to head towards trial. But Hunton and
FCPS were relentless. They 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 filing with a
pseudonym without getting permission first. A judge made clear that he
did not agree with 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.

***

Hunton’s work for FCPS frequently took the form of fighting parents who
alleged problems, and it had a reputation for doing so aggressively.
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. Last month, 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 include “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 October 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, and Raphael was
appointed to one of the new judgeships. 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.”
“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.

“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.”

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.

“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, the lawsuit says. An
administrator told her in February 2012 that the school system would
investigate.

On March 1, 2012, the 12-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.

***

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.”
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 and take other steps
according to Title IX rules] 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.

https://dw-wp-production.imgix.net/2021/10/parties.png

On one side in court was a progressive, nonprofit law firm called
Public Justice that 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 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
partisan leanings primed it to believe 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. 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 to blame
for its handling of the assault, and what changes it intended to lobby
for.

***

“How about they put that money towards real training and compensating
the victims they failed instead of paying a law firm millions of
dollars?”
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 identity — said.
The school system basically gave her a choice: “continue being raped or
don’t go to school,” the parent said.

“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?”

--
Let's go Brandon!

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