COURTNEY LOSSMANN; BRIAN RICHARD, on behalf of their minor child; A.R. v. THE SAGE INTERNATIONAL SCHOOL OF BOISE, a Public Charter School

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COURTNEY LOSSMANN; BRIAN
RICHARD, on behalf of their minor child;
A.R.,

Plaintiffs-Appellants,

v.

THE SAGE INTERNATIONAL SCHOOL
OF BOISE, a Public Charter School,

Defendant-Appellee.

No. 19-35769

D.C. No. 1:18-cv-00412-BLW

MEMORANDUM
*

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted June 5, 2020
Portland, Oregon

Before: TASHIMA, BERZON, and COLLINS, Circuit Judges.

Courtney Lossmann and Brian Richard, on behalf of their daughter A.R.,
(“Plaintiffs”) appeal the district court’s adverse grant of summary judgment in their
action against The Sage International School of Boise (“Sage”) under Title IX of
the Education Amendments of 1972 (“Title IX”), 86 Stat. 373, as amended, 20

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED

JUN 25 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
U.S.C. § 1681 et seq. We affirm.
A plaintiff seeking to hold liable a recipient of federal funding for its
handling of allegations of student-to-student sexual misconduct must show that the
school acted with “deliberate indifference” to sexual harassment “that is so severe,
pervasive, and objectively offensive that it can be said to deprive the [plaintiff] of
access to the educational opportunities or benefits provided by the school.” Davis
v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648–50 (1999). Plaintiffs assert that
Sage acted with deliberate indifference when it failed to invoke its Title IX
grievance process in response to A.R.’s report of an off-campus sexual assault.
Karasek v. Regents of University of California, 956 F.3d 1093 (9th Cir.
2020), recently rejected the argument that failure to follow an internal Title IX
procedure meets the deliberate indifference standard “per se,” explaining that this
Court “cannot say that [a school] was deliberately indifferent solely by
disregarding . . . its own policies.” Id. at 1107.
1
Karasek held that where a school’s

1
Plaintiffs argue that Karasek is distinguishable because Sage failed to
invoke its Title IX policy at all. The basis for such a distinction is not apparent;
invoking a policy but not following it provides no more relief than not invoking it.
Moreover, it does not appear that a Title IX grievance process was formally
invoked in Karasek. The university in Karasek determined that Karasek’s
complaint “could be resolved without a formal investigation by [the Title IX]
office” and instead handled through an “early resolution process.” Karasek, 956
F.3d at 1100–01. The informal process involved in Karasek, which mostly
involved the university meeting separately with Karasek and the subject of her
complaint, was not meaningfully different from Sage’s response to A.R.’s report.
Id. at 1099–1101.

3
“noncompliance” with its own policies “was, at most, ‘negligent, lazy, and
careless,’” the response to a complaint of sexual misconduct does not for that
reason constitute deliberate indifference. Id. at 1108 (quoting Oden v. N. Marianas
Coll., 440 F.3d 1085, 1089 (9th Cir. 2006) (brackets omitted)). Although Sage
made several mistakes in handling A.R.’s complaint, there is no evidence that its
errors were deliberately indifferent, rather than “negligent, lazy, and careless.”
Karasek, 956 F.3d at 1108.
Further, Plaintiffs failed to present sufficient evidence to show that Sage’s
response was “clearly unreasonable in light of the known circumstances.” Davis,
526 U.S. at 648. A principal at Sage took immediate action upon hearing A.R.’s
report, interviewing both parties and communicating with their parents. Sage kept
in close contact with A.R. in the weeks after her report and provided her with
frequent counseling. A principal at Sage told N.J., the subject of A.R.’s complaint,
to avoid contact with A.R., and further investigated A.R.’s report by asking A.R.
and N.J.’s shared teachers if they noticed any problems between the two students.
When a Temporary Protective Order was issued, Sage made reasonable efforts to
comply, and instituted further protocols when A.R. expressed discomfort with the
school’s initial approach. Finally, after the protective order was dissolved, Sage
created a supervision plan to help A.R. feel comfortable while still allowing N.J. to
attend his classes.

4
In light of Karasek and the reasonable steps taken by the school, Plaintiffs’
Title IX action cannot proceed, as Sage did not act with deliberate indifference in
response to their daughter’s sexual harassment complaint.
AFFIRMED.