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Lossman v. The Sage International School of Boise

United States District Court, D. Idaho

August 8, 2019

COURTNEY LOSSMANN and BRIAN RICHARD, on behalf of their minor child, A.R., Plaintiff
v.
THE SAGE INTERNATIONAL SCHOOL OF BOISE, A PUBLIC CHARTER SCHOOL, INC., Defendant.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill U.S. District Court Judge.

         INTRODUCTION

         Plaintiffs bring a Title IX claim on behalf of their daughter, A.R., a high school student at Sage International School of Boise. Plaintiffs allege that Sage violated Title IX by inadequately responding to A.R.'s report that another student had sexually assaulted her off campus. Without doubt, Sage's response could have been better. But absent a “clearly unreasonable” response to the sexual assault - something more than a school's failure to follow its own policies, as is the case here - the plaintiff is without a legal remedy under Title IX. The Court will therefore grant Sage's Motion for Summary Judgment. Dkt. 22.

         BACKGROUND

         On January 3, 2018, N.J. sexually assaulted A.R. Both were eleventh graders at Sage International School and were dating at the time. On the evening of the assault, they were watching a movie at N.J.'s house and sitting on a couch when N.J asked A.R. to remove her shirt. A.R. refused, and N.J. repeated the request. When A.R. continued to refuse, N.J. repeated the request, tried putting his hand up her shirt, and pinned A.R. to the couch where they had been watching a movie, telling her she could not leave until she took off her shirt. Fortunately, A.R. was able to get away and leave physically unharmed. Their brief relationship ended soon after. See A.R. Dec., Dkt. 30

         On March 6, 2018, [1] A.R. disclosed the assault to Counselor Jennifer Hart, who worked at Sage. Hart Aff. ¶ 2, Dkt. 23; A.R. Dec. ¶ 2, Dkt. 30. A.R. explained she had been feeling uncomfortable and concerned since the assault because N.J. had been giving her dirty looks and had been interacting with her friends. Hart Aff., Ex. A, ¶¶ 2-4, Dkt. 23. Hart encouraged A.R. to tell her mother and offered to tell her if A.R. was reluctant. Id. ¶ 6. Hart also explained Sage's policies required that she break confidentiality to report the assault to Principal Webb and she gave A.R. a harassment form to fill out. Id.; Rainey Dec. Ex. J, at 44:21-46:25, Dkt. 27-4. Later that day, [2] A.R., Hart, and Webb met to discuss the assault. Webb specifically asked A.R. if N.J. had harmed her. A.R. responded “no” but explained her current discomfort. Hart Aff. ¶ 8, Dkt. 23; Webb Aff. ¶¶ 2-4, Dkt. 22-3.; A.R. Dec. ¶¶ 11-14, Dkt. 30. Webb explained that because the assault did not happen at school and/or during school time there was not much the school could do. She further explained that A.R. and her family could pursue something with law enforcement if they wanted. Rainey Dec., Ex. B1, at 9:16-21, 10:5-9, Dkt. 27-2.

         On March 9, 2018, A.R.'s mother, Courtney Lossmann, sent an email to Webb about the assault and A.R.'s discomfort with being in the same class with N.J. Webb Aff., Ex. C at ¶ 9, Dkt. 22-3. The following Monday morning, March 12, 2018, A.R. met with Webb and Hart to discuss everything in detail. Webb asked A.R. if she had any concerns outside those reported on the harassment form. A.R. explained that N.J. was not bothering her at school. However, she indicated that since they had broken up she had been uncomfortable having class with N.J., who was “well liked” and whose mother worked at Sage. Webb Aff. ¶ 10; Ex. B1 thereto, Dkt. 22-3.

         Later that day, Webb met with N.J. and his mother. During the meeting, N.J. acknowledged he had asked A.R. to remove her shirt and that this was wrong. Webb Aff., Ex. D1 at ¶ 11, Dkt. 22-3. He described their current relationship as cordial. Webb told N.J. if the incident had happened at school there would have been severe consequences. N.J. was apologetic and saw it as a mistake that he did not plan on repeating. Webb decided not to suspend N.J.; however, she told N.J to avoid contact with A.R. for the present. Id. Based on this conversation, Webb was satisfied that N.J. understood why his actions were wrong and that he would take no actions at school that would cause A.R. to feel uncomfortable or unsafe. Id. ¶ 13.

         The next day, March 13, 2018, Webb responded to Lossmann's email from March 9th, 2018. Webb explained that the school would support A.R. to help her feel safe and comfortable at school, that they had A.R. fill out a sexual harassment form, and that she, Hart, and the school would be checking in with A.R. Id. ¶ 15. She reiterated that since the assault occurred outside of the school setting it was the family's decision if they wanted to pursue any legal or law enforcement options. Id. Lossmann responded that her family was pursuing legal action and had filed a report with the Boise Police Department (Boise P.D.) on March 12. Id. ¶ 16. This same day, Hart checked in with A.R. who stated she still felt uncomfortable although N.J. had made no contact other than “evil looks.” Hart Aff. ¶ 12, Dkt. 23; A.R. 's Dec. ¶ 6, 20, Dkt. 30.

         On March 14, 2018, Lossmann forwarded to Webb and Hart a Temporary Protective Order (TPO) against N. J., which prohibited him from knowingly remaining within 20 feet of A.R. during school hours. Doramus Aff. ¶ 3, Dkt. 22-4. Webb acknowledged receipt of the TPO and stated that Sage would take steps to comply. Sage measured the classrooms and concluded that in two of the five classes A.R and N.J. shared, there was sufficient space for N.J. to attend without violating the TPO. Doramus Aff. ¶ 3, Dkt 22-4. Hart and Webb spoke with the teachers who taught these classes to determine whether they had noticed a problem between the two. They also discussed the implications of the TPO and announced a passing protocol to keep the students separated as required by the TPO. Webb Aff. ¶ 20, Dkt. 22-3; Hart Aff. ¶ 13, Dkt. 23.

         The following day, March 15, 2018, A.R. was surprised to see N.J. in two of her classes. A.R. Dec. ¶ 22, Dkt. 30. Sage had not informed her of the passing protocol it developed in order to comply with the TPO. Id. A.R. visited Hart's office and informed Hart that her mom had called the police and obtained a TPO against N.J. They discussed how A.R. was doing at school-she still felt uncomfortable and was concerned seeing N.J. talk to her friends-and Hart counseled A.R. on how to deal with these feelings and reminded A.R. to visit her office anytime. Hart Aff. ¶ 14, Dkt. 23; A.R. Dec. ¶¶ 4, 6, 20-22, Dkt. 30.

         The same day, A.R.'s parents met with Co-Principal Micah Doramus, who was also Sage's Title IX Coordinator, to discuss their concerns about compliance with the TPO. Doramus explained they had measured the classes and removed N.J. where the twenty-foot limitation could not be maintained. A.R.'s parents were dissatisfied with this solution, and, having consulted with counsel earlier that day, Doramus agreed that during the TPO it would be best to have N.J. attend his classes remotely. Thus, from that that point forward, until the TPO expired on March 28, 2018, N.J. attended all classes he shared with A.R. remotely. A.R.'s parents were satisfied with this plan. See Doramus Aff. ¶ 5, Dkt. 22-4. Doramus also met with N.J. and his parents on March 15 to discuss the TPO and the school's plans. Id. ¶ 4. Webb sent an email to N.J.'s parents confirming that N.J. would attend classes remotely and scheduled a follow-up meeting for the morning of Monday, March 19. Webb Aff. ¶ 21, Dkt. 22-3.

         On March 16, 2018, Lossmann emailed the school board about her concerns and asked for help in understanding Sage's sexual harassment policies and grievance procedures. Lossmann Dec., Ex. A, Dkt. 27-5. Lossmann believed that by filling out the sexual harassment form Webb had provided, A.R. had sufficiently triggered a formal Title IX investigation under Sage's sexual harassment policies. Id. Sage's sexual harassment policy provides: “students who believe they may have been sexually harassed or intimidated should contact a counselor, teacher, Title IX coordinator or administrator who will assist them in the Civil Rights Grievance process.” Rainey Dec., Ex. F, Dkt. 27-5 (emphasis added). No Sage administrator explained to A.R.'s family that a grievance needed to be filed in order to invoke a Title IX investigation; because they had not filed a grievance, no investigation was initiated. Id.

         On March 19, 2018, Sage's board met. Doramus, who as Title IX Coordinator had the responsibility of knowing when the policies were invoked, was at this meeting. Following the meeting, the board told A.R. and her parents that since the “alleged incident occurred outside of Sage International, Sage's sexual harassment policies are not invoked.” Rainey Dec., Ex. H, Dkt. 27-4. (Later, on March 11, 2019, Doramus testified that Title IX recognizes that off-campus conduct can have on-campus consequences that Sage is required to address; but, at the time, the board's statement remained unclarified. Rainey Dec., Ex. C, at 59:12-60:5.) Later that evening, Webb sent an email to A.R's parents apologizing for missing the meeting and said they should contact her if they had any concerns or would like to schedule a meeting. Webb Aff. ¶ 22, Dkt. 22-3.

         On March 20, 2018, Officer Rudy Hill of the Boise P.D. arrived at Sage and spoke with Webb. He explained that the Boise P.D. had received a call from A.R.'s mother claiming N.J. had violated the TPO. Sage provided copies of video surveillance from that morning to Hill for review. Sage did not hear back from Hill indicating whether the TPO had been violated. Id. ¶ 23. The same day, A.R. visited Hart. She explained that her mother had called the Boise P.D. when A.R. informed her that N.J. had walked by her near her locker. She said N.J. did not stop or talk to her and acknowledged that she did not think N.J. would hurt her. But she believed he was trying to win over her friends, which made her uncomfortable. Hart counseled A.R. through some of her emotions. Hart Aff. ¶ 15; A.R.'s Dec. ¶¶ 23-25, Dkt. 30.

         Because of the March 20 locker incident, Lossmann informed Webb that A.R. would not be attending school on March 21 and 22 “due to Sage's inability to ensure her safety.” Webb Aff. ¶ 27, Ex. L thereto, Dkt. 22-3. Lossmann informed the board about this violation, to which Executive Director Donahue emailed the board of directors and stated: “we have asked, and are not aware of any alleged instances of harassment taking place on school grounds.” Lossmann Dec., Ex. C, Dkt. 27-5. Lossmann held A.R. out of school on the 26th for the same reasons. After consulting with legal counsel for both ...


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