United States District Court, D. Idaho
COURTNEY LOSSMANN and BRIAN RICHARD, on behalf of their minor child, A.R., Plaintiff
THE SAGE INTERNATIONAL SCHOOL OF BOISE, A PUBLIC CHARTER SCHOOL, INC., Defendant.
MEMORANDUM DECISION AND ORDER
Lynn Winmill U.S. District Court Judge.
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.
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
March 6, 2018,  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,
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.
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.
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.
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.
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.
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.
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,
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.
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.
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.
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 ...