NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 25 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

COURTNEY LOSSMANN; BRIAN No. 19-35769 RICHARD, on behalf of their minor child; A.R., D.C. No. 1:18-cv-00412-BLW

Plaintiffs-Appellants,

MEMORANDUM*

v.

THE SAGE INTERNATIONAL SCHOOL

OF BOISE, a Public Charter School,

Defendant-Appellee.

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. 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.

2 “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.

3 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.

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