4th Circ. judge calls for rule change to address en banc dissent 'drawbacks'

Aug 31 - A federal appeals court judge on Monday criticized the phenomena of judges issuing dissenting opinions when a vote to take a case before the full circuit court fails and called for a rule change to guard against what he called their "serious drawbacks."

U.S. Circuit Judge James Wynn cited the potential for such dissents to harm the public's confidence in the judicial process as he responded to opinions by two members of the 4th U.S. Circuit Court of Appeals dissenting from the court's decision to not revisit the revival of a student's lawsuit against a Virginia school board over a sexual assault.

The student had sued the Fairfax County School Board under Title IX, alleging administrators at Oakton High School in Vienna, Virginia, acted with deliberate indifference to reports she was sexually assaulted by another student.

A federal jury in 2019 concluded the student, known as "Jane Doe," was sexually assaulted during a 2017 band trip but found the school had no "actual knowledge" of the assault and could not be held liable. A three-judge panel in June on a 2-1 vote found the jury used an incorrect standard to assess the school's actual knowledge and ordered a new trial.

On Monday, the 4th Circuit on a 9-6 vote rejected a request by the board's lawyers including Stuart Raphael of Hunton Andrews Kurth to rehear the case en banc. Six Republican-appointed judges were in the minority.

They included U.S. Circuit Judges J. Harvie Wilkinson and Paul Niemeyer, appointees of former President Ronald Reagan, who said the decision wrongly exposed schools to liability when they were in the dark about student-on-student sexual harassment.

Wynn, a nominee of former President Barack Obama, in a concurring opinion defended the panel ruling, which he said safeguards students' rights to "an education free of discrimination on the basis of sex."

He also questioned why Wilkinson and Niemeyer issued dissenting opinions, saying they were "no more than advisory opinions that read like editorials or legal commentary on the three-judge panel decision."

Wynn acknowledged judges nationally in courts like the California-based 9th Circuit have issued dissenting opinions from the denial of rehearing en banc as far back as 1943, "though until recently, it was uncommon in our circuit."

But he said the "proliferation" of such dissents had sparked debate among academics and judges.

While Supreme Court justices have signaled they find such dissents useful, Wynn said they can create an overblown appearance of internal disarray and read like inappropriate "blue prints" for parties to get cases before the top court.

He said the dissents also create an appearance that courts are politicized, citing a 2013 study by Jeremy Horowitz, who conducted the research while a graduate student at the University of California, San Diego, that found the Supreme Court took up cases with dissents from en banc denials by Republican-appointed judges twice as often as ones by Democrats.

Wynn called for a rule change that would add "transparency" to the en banc review process to state that while judges may issue such opinions they "neither supplement the panel decisional opinions nor 'constitute the law of the circuit.'"

Wilkinson in his own opinion agreed that dissents from the denial of en banc hearings "should not be routine," but he said the school case was "no routine issue" and that the absence of a dissent "would leave only one side of an issue expressed."

"Reasoning adds to judicial transparency; it does not detract from it," he wrote. "And debate on issues of legal and public importance is to be welcomed, not disapproved."

Alexandra Brodsky, Doe's lawyer at Public Justice, said her team was "glad that the court has not disturbed the panel's powerful opinion."

John Foster, the general counsel for Fairfax County Public Schools, in an email said it was "still reviewing today’s ruling, but we continue to believe both the jury’s verdict and the trial court’s judgment were correct."

The case is Doe v. Fairfax County School Board, 4th U.S. Circuit Court of Appeals, No. 19-2203.

For Jane Doe: Alexandra Brodsky of Public Justice

For Fairfax County School Board: Stuart Raphael of Hunton Andrews Kurth

(EDITOR'S NOTE: This story has been corrected to state that the 2013 study referenced in the 12th paragraph was by Jeremy Horowitz, who conducted the research while a graduate student at the University of California, San Diego.)

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