P. R. et al v. Shoshone School District No. 321 et al

Filing 53

MEMORANDUM DECISION AND ORDER finding as moot 31 Sealed Motion to Strike; granting in part and denying in part 22 Defendants' Motion for Summary Judgment. Summary judgment is granted, in part, on Count Four with respect to the Equal Protec tion claim and the Monell claim, and denied on Counts One and Two. Counts Three, Five, Six, Seven, Eight, and Nine are DISMISSED without prejudice pursuant to Fed. Rule Civ. P. 41(a)(2). The Court will conduct a telephonic scheduling conference with the parties for setting a trial date. A separate notice of hearing is forthcoming.Signed by Judge Candy W. Dale. (klw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

P.R., a minor, and S.R., natural parent
and guardian,

Case No. 1:17-cv-00521-CWD
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
SHOSHONE SCHOOL DISTRICT NO.
321; KELLY CHAPMAN, an
individual, and ROBERT WAITE, an
individual,
Defendants.

INTRODUCTION
Pending before the Court is Defendants’ motion for summary judgment and
related motion to strike. (Dkt. 22, 31.) This case involves allegations by Plaintiffs that
Defendants’ response to a sexual assault at school between two students, Plaintiff P.R.
and L.C., was inadequate. 1 Plaintiffs P.R. and her mother, S.R., claim that Defendants’
failure to investigate the incident and appropriately discipline L.C. resulted in the
Because P.R. is a minor, and L.C. was a minor at the time, each will be referred to by his or her
initials. (Dkt. 19.) Additionally, P.R.’s mother will be referred to by her initials, S.R., to protect P.R.’s
identity, as the parties have been doing in their public filings.
1

MEMORANDUM DECISION AND ORDER - 1

deprivation of P.R.’s federally protected rights to an education at Shoshone Middle
School and Shoshone High School. Defendants contend the District officials, Principal
Kelly Chapman, and Superintendent and Title IX officer Robert Waite, responded
appropriately upon discovering the incident between the two students.
The Court conducted a hearing on the pending motions on September 18, 2018, at
which the parties appeared and presented their arguments. After carefully considering the
record, the parties’ briefing and oral argument, as well as relevant authorities, the Court
will grant summary judgment to Defendants in part and deny it in part, as explained
below.
PROCEDURAL BACKGROUND
Plaintiffs’ complaint sets forth nine causes of action. Counts One and Two allege
violations of Title IX as to Defendant Shoshone School District; Counts Three and Four
allege Section 1983 claims against all three Defendants under Title 42 of the United
States Code; and Counts Five, Six, Seven, Eight and Nine allege claims under state law
under various theories.
In response to the motion for summary judgment, Plaintiffs conceded Counts
Three, Five, Six, Seven, Eight, and Nine in the Complaint by “withdrawing” them. (Dkt.
30 at 2, 23.) 2 Accordingly, the Court’s analysis is confined to Counts One, Two, and
Four.

Plaintiffs confirmed their intent to withdraw these counts during the hearing. The Court
construes Plaintiffs’ withdrawal of these counts as a request for voluntary dismissal pursuant to Fed. Rule
Civ. P. 41(a)(2), and will grant the same.
2

MEMORANDUM DECISION AND ORDER - 2

Plaintiffs disputed the majority of the facts set forth in Defendants’ statement of
undisputed facts. Because of the significant disparities in the parties’ versions of the
facts, and based upon review of the entire record, the Court has outlined below the facts
and factual disputes material to the legal issues presented with Defendants’ motion.
FACTS 3
P.R. attended the eighth grade at Shoshone Middle School during the 2016-2017
school year. That same year, L.C. was a junior attending Shoshone High School. The
schools share the same campus, which is located at 61 E. Highway 24, in Shoshone,
Idaho. 4 P.R. first met L.C. in December of 2016. 5 At that time, P.R. was 13, and L.C. was
16.
On the early afternoon of Tuesday, April 25, 2017, Kelly Chapman, the school
principal, 6 entered the computer lab at Shoshone High School 7 and found P.R. and L.C.

See Defendants’ Statement of Undisputed Facts (Dkt. 22-1); Plaintiffs’ Appendix Two, Analysis
and Rebuttal to Defendants’ Undisputed Facts (Dkt. 30-2). The undisputed facts are culled from the
Plaintiffs’ admissions to certain of Defendants’ statement of undisputed facts and based also upon the
representations made by the parties at the hearing. The Court has, however, reviewed the deposition
testimony and corresponding documents in the record from Kelly Chapman, Robert Waite, L.C., P.R.,
and P.R.’s mother, S.R. The Court views all such evidence in the light most favorable to Plaintiffs.
3

4

See http://shoshonesd.org/schools/shoshone-high-school

5

It is not clear whether P.R. and L.C. met at school or were introduced outside of school.

6

Chapman is the principal of both Shoshone Middle School and Shoshone High School. Ans. ¶ 5.

7

The computer lab is located within the campus for Shoshone High School. Ans. ¶ 27.

MEMORANDUM DECISION AND ORDER - 3

together, watching Netflix. 8 She sent them both back to their respective classrooms. Later
that day, Chapman spoke with the school counselor, Ms. Schroeder, about walking in on
the two students. Chapman expressed that it was odd the two students were there
together, because one was in middle school and one was in high school, and they should
not have been together in that same location at that time. Chapman wanted to find out
what the two students had been doing, so she accessed the video tape from earlier in the
day. Upon review of the video tape, Chapman discovered the two students had engaged
in sexual activity in the computer lab before she walked in. Upon learning the two
students had engaged in sexual activity, Chapman contacted law enforcement.
Before viewing the video tape on April 25, 2017, Chapman did not know or
suspect that P.R. and L.C. had engaged in sexual activity. And, the record contains no
evidence that anyone else at Shoshone Middle and High School or Shoshone School
District was aware of their activities.
After classes on April 25, two local law enforcement officers arrived at the school
and met with Chapman to discuss how to proceed. The officers and Chapman decided to
interview the students the next day with their parents in attendance. On the morning of
Wednesday, April 26, 2017, P.R. was interviewed in Chapman’s office with her mother,

It is not clear from the record how much time elapsed before Chapman unlocked the door and
entered the computer lab. The record reflects, however, that the two students were fully clothed at the
time she walked in, and she did not know of the sexual activity until she viewed the video footage later
that same day on April 25, 2017. Chapman Aff. ¶ 3. (Dkt. 22-3.)
8

MEMORANDUM DECISION AND ORDER - 4

S.R., present. 9 At various times during the interview, Chapman was present as was
Sheriff Rene Rodriguez and Officer Green. P.R.’s father was present at the school for a
portion of the morning.
P.R. remembers “getting asked what had happened in the computer lab and they
had only, like, saw the video of, like the 25th and so when I said that we had had sex, Ms.
Chapman was like, no, you guys didn’t, like, and she just hadn’t checked, like, the
videos, like, from before.” P.R. Depo. at 66-67. 10 At that point, it appears S.R., Chapman,
and the officers reviewed the video footage from the computer lab taken during the day
on Monday, April 24, 2017. S.R. Depo. at 25-27.
After P.R.’s interview concluded, P.R. was sent to the hospital with her mother
and another law enforcement officer, where she received a physical examination. S.R.
was informed that, because of P.R.’s age (13), she would be referred to CARES. 11
Later on Wednesday, April 26, 2017, law enforcement officers interviewed L.C.
with his parents in attendance. 12 Chapman testified she was careful to ensure that P.R.
and L.C. did not have contact during that day. Chapman Aff. ¶ 8. (Dkt. 22-3.) Law

The record does not reflect who interviewed P.R., or whether Chapman was present during the
entire interview.
9

There were two video tapes---one from April 24 and the second from April 25. P.R.’s
deposition is in the record at Docket 31-3.
10

P.R. described CARES as a place for women who have been assaulted. P.R. Depo. at 69. No
other information was provided in the record regarding CARES.
11

Chapman did not interview L.C. Chapman Depo. at 60. The record does not reflect who
interviewed L.C. or whether Chapman was present for the interview. Likely, law enforcement interviewed
him.
12

MEMORANDUM DECISION AND ORDER - 5

enforcement officers informed Chapman that day that L.C.’s conduct would be charged
as lewd and lascivious conduct. Ans. ¶ 31.
On Thursday, April 27, 2017, L.C. was arrested at school, and was escorted off the
school premises because of the incident with P.R. Afterwards, L.C. was suspended from
school for nine school days. Because the Shoshone schools are on a Monday through
Thursday schedule, the suspension lasted from Monday, May 1, through Monday, May
15, 2017. This was the maximum suspension Chapman believed she was able to impose
under state law as the school’s Principal. Chapman Depo. at 53, 56. 13 Chapman did not
recommend further discipline for L.C. after imposing the nine-day suspension, and
Robert Waite, the Superintendent and Title IX officer, agreed with her recommendation.
Chapman Depo. at 58-60. L.C. returned to Shoshone High School on May 16, 2017.
Chapman testified that she reviewed the school handbook prior to determining
L.C.’s disciplinary consequences. Chapman Depo. at 59-60. Chapman interpreted L.C.’s
behavior as falling within the school handbook’s disciplinary policy prohibiting public
displays of affection and inappropriate behavior. Chapman characterized what she saw on
the video tapes, which she testified depicted oral intercourse and anal intercourse, as
signs of an “intimate relationship.” 14 Chapman Depo. at 60-61. Chapman was aware that
L.C. was charged with five counts of lewd and lascivious conduct, although it is not

13

Chapman’s deposition transcript is in the record at Docket 32-4.

14

There is no evidence in the record regarding whether the tapes contained audio.

MEMORANDUM DECISION AND ORDER - 6

entirely clear from the record when Chapman became aware of the nature of the criminal
charges filed against L.C. Chapman Depo. at 55. 15
The Complaint characterizes what occurred between L.C. and P.R. as rape, which
characterization the District denies. P.R. testified in her deposition that, on April 24,
2017, L.C. “pressured” her to have sex with him that day in the computer lab—he was
“grabbing my arm,” and she felt like she could not leave the room. P.R. Depo. at 50-52.
P.R. described L.C. as “aggressive that day.” P.R. Depo. at 54.
P.R. testified that, the next day, April 25, L.C. contacted her via Snapchat, telling
her that he wanted her to go to the computer lab. P.R. met L.C. in the computer lab,
which was empty. According to P.R., L.C. made sure that the door was locked. L.C.
“kept…asking to have sex again and I kept saying no, ‘cause what had happened the day
before…he asked for oral and he said that if I gave him oral, then he would let me leave.”
P.R. Depo. at 56. She complied, although she described L.C. as using physical force by
holding her head and she did not know if she could have left the computer lab. P.R.
Depo. at 57.
P.R. testified that, when she met with CARES personnel on April 26, she told
them she was raped, assaulted, and that L.C. physically did something to her that she felt
was threatening that she “did not say yes to.” P.R. Depo. at 70-71. It is not clear from the
record whether Chapman or Waite knew about P.R.’s allegations to CARES personnel, or
Chapman’s handwritten notes bear a date at the top of the page of April 26, 2017, and farther
down the page there is the following note: “L[C] – Judge today; 5 counts.” (Dkt. 30-7 at 8.) In the
Answer, Defendants admitted Chapman was told by law enforcement on April 26 that L.C.’s conduct
would be charged as lewd and lascivious conduct.
15

MEMORANDUM DECISION AND ORDER - 7

whether P.R. had described the incidents at school similarly to law enforcement during
their interview of her on April 26.
Sometime shortly after the interviews with the students, 16 Robert Waite met with
Chapman, and the two discussed three topics. First, the two discussed the need to conduct
an investigation separate from the police investigation. Waite Depo. at 20. 17 However, no
written report was prepared, and the only formal document produced was a letter
regarding L.C.’s suspension that was sent to L.C.’s parents. Other than Chapman’s
handwritten notes taken at various times, 18 school officials did not prepare a written
report concerning the events of April 24 and 25, 2017, or their aftermath, and the Court
found no evidence of such a report in the record. (see Dkt. 30-7 at 13, and Dkt. 30-7 at 7,
referencing Bates No. SHOS 0296.)
Second, Waite and Chapman discussed how to handle L.C.’s return to school after
his suspension concluded. Waite testified that the school needed information from P.R.’s
family, because “[w]e didn’t know at this point the nature of the relationship” between
P.R. and L.C. Waite Depo. at 29. Accordingly, depending upon the nature of the
relationship, he and Chapman discussed that L.C. could be placed in the alternative

It is not clear when Chapman and Waite met, although it appears they met after the April 26,
2017 interviews with the students, but before Chapman met with P.R. and S.R. later in May.
16

17

Robert Waite’s deposition transcript is in the record at Docket 30-7.

Chapman kept what appears to be a spiral notebook containing sparse notes about various
conversations and other topics. The notes do not contain a descriptive narrative, and are not readily
decipherable by the Court. They do, however, bear dates at the top of some of the pages—there are two
pages dated “4/26/17,” one page dated “4/27/17,” one page dated “5/9/17,” and several undated pages
with additional notes.
18

MEMORANDUM DECISION AND ORDER - 8

school; enroll in online school; or the school could make sure that he and P.R. did not
pass in the hall. However, the school wanted to know whether P.R. felt it was the best
thing for her to return to Shoshone Middle School or stay away. Waite testified that he
and Chapman decided Chapman would meet with P.R.’s family to determine the best
way to proceed. Waite Depo. at 27. However, Waite and Chapman did not discuss
notifying P.R.’s family that the school was depending upon the family’s decision whether
and when to send P.R. back to school before the school determined a plan for L.C. going
forward. Id.
And last, Waite testified that he and Chapman discussed three options for P.R. to
finish the remainder of the 2016-17 school year – one would be to work from home and
get homework assignments from her teachers; the second would be to take her grades as
they were, and be done for the school year; and the third option would be resuming
attendance at the middle school, at which point a discussion would occur concerning how
to keep L.C. and P.R. separated. Waite Depo. at 34. Waite testified that he and Chapman
determined that they would come up with a plan based upon P.R.’s wishes. Waite Depo.
at 41. In the meantime, Chapman emailed P.R.’s teachers on April 27th, requesting that
they send assignments to P.R. for her to complete at home. Chapman Depo. at 12. 19
Thereafter, Chapman met twice with P.R. and her mother, S.R. During the first
meeting, held on or about May 1, 2017, Chapman testified that she explained P.R. could
return to school, she could continue doing what she was doing by obtaining homework
The email, sent to P.R.’s teachers, states that P.R. “will be out of school for the next two weeks.
Please send work to the office.” (Dkt. 30-7 at 9.)
19

MEMORANDUM DECISION AND ORDER - 9

remainder of the school year. P.R. Depo. at 75-76. Her understanding of home school
was that she would still be in the school system, and she could try to improve her grades,
so “we had agreed that I would be getting homework, like, every week.” P.R. Depo. at
77-78. However, P.R. testified she received homework only “two times.” Id. at 78-79.
S.R. testified she stopped by the school every week, and also had her son, who attended
Shoshone High School, stop at the school’s office for P.R.’s homework. Neither she nor
her son were ever given anything to take home to P.R. S.R. Depo. at 22-23.
Chapman testified she requested P.R.’s teachers to send homework assignments to
the school office “as necessary,” although she does not know whether the teachers did so;
she could not identify how many lessons were sent home to P.R. between April 27 and
May 23; and, she did not oversee or monitor the sending of any lessons home. Chapman
Depo. at 13-16. When a teacher asked Chapman on May 23, 2017, whether she was to
continue sending homework for P.R. to the office, Chapman responded via email: “Yes,
or you could tell her she can be done.” (Dkt. 30-7.)
During her deposition, P.R. was asked whether she remembered Chapman telling
her to let her know if she wanted to return to school so she could make arrangements to
take care of L.C. if she did return. P.R. denied that Chapman ever “mentioned her coming
back to school. [Chapman] only gave me those two options.” P.R. Depo. at 78-79. P.R.
did not return to school after the 26th of April, because “going back to school wasn’t an
option,” and Chapman told her “that it just wasn’t a good idea and that’s basically it.”
P.R. Depo. at 82-83.

MEMORANDUM DECISION AND ORDER - 12

During the one meeting in May of 2017 with Chapman, P.R. recalls Chapman
mentioning a “safety plan, because they were planning on, like, letting [L.C.] come back
to school,” but that no one fully explained to her what that meant. P.R. Depo. at 85. She
understood only that L.C. would return to school, and if she were to attend school and run
into him, that “I guess I would be safe, but they never explained it, not that I remember.”
P.R. Depo. at 85-86. S.R. recalls also that, during the meeting on May 1, 2017, Chapman
mentioned a safety plan, but S.R. did not know what it was, and Chapman did not explain
to her what it meant. S.R. Depo. at 21, 33.
Chapman testified that L.C.’s placement could not be determined until the school
heard from P.R.’s family what P.R.’s plan was regarding returning to school. Chapman
indicated that S.R. did not communicate with her regarding their family’s plans to have
P.R. return to school, but neither did Chapman independently follow up with S.R. to
inquire about their wishes. Chapman testified there was no written plan prepared for P.R.
if she chose to attend Shoshone Middle or High School after April 26th.
Upon L.C.’s return to school after his suspension on May 16, 2017, the school put
in place a safety plan for him. The plan allowed L.C. to attend his required classes in the

MEMORANDUM DECISION AND ORDER - 13

final grades from her second semester consisted of four D’s, one F, one B, an A+ in PE,
and two C’s. (Dkt. 23 at 55.) P.R. had less than a 90% attendance rate during her second
semester of eighth grade. She was entitled to continue to the next grade level, despite her
low attendance and receiving an F for one of her final second semester grades.
At some point in August of 2017, Chapman recalls learning that P.R. would be
homeschooled. 26 Thereafter, school records indicate that, on September 11, 2017,
Shoshone High School sent P.R.’s records to Gooding High School. Chapman made no
follow up inquiry. Chapman knew that L.C. was planning to return to Shoshone High
School for his senior year. She testified that there was no reason P.R. could not have
enrolled, and that no one told P.R. or S.R. that P.R. could not attend Shoshone High
School. Chapman testified that, had P.R. returned to the high school, she would have set
up a meeting 27 and implemented a safety plan, but because she was informed P.R. would
be homeschooled, that meeting never needed to occur.
S.R. did not speak with anyone at Shoshone High School concerning whether P.R.
could return to school for ninth grade, as she had decided she did not want P.R. returning
to Shoshone “[b]ecause [L.C.] is in school and how they treat my daughter, no.” S.R.
Depo. at 31. P.R. testified that she did not enroll in the ninth grade at Shoshone High
School because she “didn’t want to be in school with [L.C.],” who she knew would be

Chapman believes S.R. informed the school sometime at the end of August that P.R. was going
to be homeschooled. It is not clear who informed Chapman or how she learned this information other than
by reviewing the student enrollment system. Chapman Depo. at 63.
26

27

It is not clear who Chapman intended to meet with.

MEMORANDUM DECISION AND ORDER - 15

there. P.R. Depo. at 84-85. P.R. testified that she did not have any contact with school
district officials about going back to Shoshone High School for ninth grade “because of
what happened. I just didn’t feel safe.” P.R. Depo. at 86. In September of 2017, P.R.
enrolled at Gooding High School.
S.R. did reach out by email to Shoshone Middle or High School in August of
2017, asking to speak with Waite. Chapman Depo. at 97. Waite did not recall who S.R.
was, and upon receiving the email, responded to Chapman, “is this the [L.C.] situation
girl,” to which Chapman responded, “yes I believe so.” (Dkt. 30-7 at 19-20.) Chapman
allegedly learned after the fact that Waite had met with S.R. and had informed S.R. that
“she could enroll [P.R.] right now if she wanted to.” Id. Chapman learned of the meeting,
and its substance, third hand, from the school secretaries, and there is no written note or
record of the conversation. Waite’s deposition testimony in the record does not
specifically reference a meeting with S.R. in August of 2017. S.R. recalled the meeting
lasted for five minutes, and that they discussed only why Chapman would not talk to S.R.
S.R. Depo. at 23.
As for L.C.’s return to high school in the fall of 2017, Chapman testified that she
recalled a meeting in August with L.C. when she informed him, verbally, regarding the
terms and conditions of his supervision at school while attending classes. But, she did not
distribute anything in writing to his teachers, and she does not recall whether she
informed L.C.’s teachers that he could not be in an unsupervised class. 28

28

See note 25, supra.

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L.C., who played soccer and basketball for Shoshone High School, was informed
he could not play high school sports his senior year by Tim Chapman, the school athletic
director, and Kelly Chapman. L.C. Depo. at 11-13. 29 L.C. was told also that, depending
upon the outcome of the criminal charges against him, he could be subject to further
discipline, including expulsion. L.C. graduated from Shoshone High School in the Spring
of 2018. L.C. Depo. at 10. 30 The criminal case against L.C. was not concluded until after
L.C. was no longer a student at the high school.
DISCUSSION
1.

Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides, in pertinent part, that the “court shall

grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
For summary judgment purposes, an issue must be both “material” and “genuine.”
An issue is “material” if it affects the outcome of the litigation; an issue is “genuine” if it
must be established by “sufficient evidence supporting the claimed factual dispute ... to

Portions of L.C.’s deposition are in the record at Docket 48-1. Chapman’s notebook contains an
entry dated September 28, 2017, that states: LC – “went to game sat on the bench. Talk to. No more
practice or games.” (Dkt. 31-5 at 99.)
29

L.C. testified he graduated in the Spring of 2018. Defendants, however, indicated L.C.
completed his education at Shoshone High School in December of 2017. (Dkt. 22-1 at 4.)
30

MEMORANDUM DECISION AND ORDER - 17

require a jury or judge to resolve the parties' differing versions of the truth at trial.” Hahn
v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat. Bank of Ariz. v. Cities
Serv. Co., 391 U.S. 253, 289 (1968)); see also British Motor. Car Distrib. v. San
Francisco Auto. Indus. Welfare Fund, 883 F.2d 371, 374 (9th Cir. 1989). “Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
In considering a motion for summary judgment, a court does not make findings of
fact or determine the credibility of witnesses. See Anderson, 477 U.S. at 255. Rather, it
must draw all inferences and view all evidence in the light most favorable to the
nonmoving party. See Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929,
931 (9th Cir. 2008).
2.

Evidentiary Objections
A. S.R. and P.R. Affidavits
In response to Defendants’ motion for summary judgment, Plaintiffs submitted

affidavits of S.R. and P.R., explaining that the “relevant facts are best presented by
affidavits rather than repetitively stating in this brief references to pages and lines in
depositions.” Pls.’ Responsive Brief at 2. (Dkt. 30-2.) Plaintiffs’ intent was for the
affidavits to be read together with the deposition testimony. Thereafter, Defendants filed
a motion to strike certain paragraphs in each of the affidavits, arguing they contain
conclusory statements, argument, and inadmissible hearsay, and that the testimony
contradicts that given during their depositions. Also, Defendants submitted the complete
MEMORANDUM DECISION AND ORDER - 18

deposition transcripts of P.R., S.R., and Chapman. (Aff. of Reid, Dkt. 31-2.) Plaintiffs did
not file a response to Defendants’ motion to strike.
The Court has reviewed the affidavits and the deposition testimony of P.R., S.R.,
and Chapman, and finds it unnecessary to address Defendants’ objections at this time.
The Court agrees that the affidavits appear to be more detailed than some of the
deposition testimony and provides some argument. However, for purposes of deciding
the motion for summary judgment, the Court has reviewed and relied upon the full
deposition transcripts. Defendants’ objections are preserved, as necessary, for purposes of
trial.
B. Chapman’s Testimony
Plaintiffs raised an evidentiary objection in their motion to supplement the factual
record, 31 asserting that Defendant Chapman was untruthful in her answers to
interrogatories and to questions asked during her deposition about any special
relationship between L.C.’s family and Shoshone school staff. During her deposition,
Chapman denied that L.C.’s father was a full or part time coach of the soccer team in
2016. Thereafter, the parties deposed L.C., who testified that his father volunteered on the
sidelines as a coach for the soccer team, and was granted special access to do so, for the
2016 and 2017 state cup soccer tournament. The high school soccer coach permitted
L.C.’s father to volunteer at the 2016 state cup tournament held in Twin Falls. L.C. Depo.

Plaintiffs moved to supplement the record with excerpts of L.C.’s deposition, which was taken
after Defendants filed the motion for summary judgment. (Dkt. 44.) The Court granted the motion. (Dkt.
45.)
31

MEMORANDUM DECISION AND ORDER - 19

at 14. L.C.’s father was given a tag to allow him to be on the sidelines for the tournament,
and he was given one again for the state cup tournament in 2017, the year L.C. did not
play. L.C. Depo. at 87-88. L.C. testified also that Chapman’s husband, Tim Chapman,
was the athletic director at the school. L.C. Depo. at 13. The Chapmans informed L.C.
that he was ineligible to play high school sports his senior year.
Plaintiffs argue that the status of L.C.’s father as a coach for the school soccer
team during the state cup soccer tournament is relevant, because it provides a motive for
Defendants to treat L.C. differently, and more favorably, than P.R. Defendants dispute
that there is any contradiction between L.C.’s and Chapman’s testimonies, and further
contend that L.C.’s father’s status as a volunteer coach or parent is not evidence that P.R.
was treated differently because she was female. Defendants contend also that L.C.’s
testimony is inadmissible hearsay and is not based upon firsthand knowledge.
First, the Court notes that, upon summary judgment, it is not for the Court to
determine the credibility of the witnesses. The distinction between coach and volunteer is
therefore left to the jury.
Second, the Court finds it may consider L.C.’s deposition testimony. Upon
summary judgment, deposition testimony is admissible, provided the testimony can be
presented in a form admissible in evidence. Fed. Rule Civ. P. 56(c)(1)(A), (c)(2). L.C.
testified in his deposition concerning his own personal observations and knowledge. He
was a member of the school soccer team during the fall of 2016. He testified that his
father traveled with the team to the state cup tournament and assisted as a volunteer

MEMORANDUM DECISION AND ORDER - 20

coach during the games. Such testimony is derived from L.C.’s personal observations and
is admissible upon summary judgment in its current form.
The Court notes that Defendants do not dispute L.C.’s account with contradictory
testimony. Further, L.C.’s personal observations of his father on the sidelines during the
soccer tournament, and the potential inferences to be drawn from these facts, are relevant
here regarding the Court’s analysis of Plaintiffs’ Title IX claim, as explained below.
3.

Title IX Claims – Counts 1 and 2 as to Defendant Shoshone School District 32
Plaintiffs bring two claims against the District under Title IX of the Education

Amendments of 1972. Title IX provides, with certain exceptions not at issue here, that:
“No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or
activity receiving Federal financial assistance.” 20 U.S.C. §
1681(a).
Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 638 (1999). The United States Supreme
Court established four requirements for the imposition of school district liability under
Title IX for peer harassment. First, the school must exercise “substantial control over
both the harasser and the context in which the known harassment occurs.” Id. at 645.
Second, the sexual harassment must be “so severe, pervasive, and objectively offensive,
that it can be said to deprive the victims of access to the educational opportunities or

The parties do not differentiate between Counts One and Two, and the two counts are
considered together in Defendants’ memorandum. In the Complaint, Count One alleges the District was
deliberately indifferent to the alleged sexual harassment, while Count Two alleges the District retaliated
against P.R. by withholding protections conferred by Title IX, by not allowing her to return to school.
32

MEMORANDUM DECISION AND ORDER - 21

benefits provided by the school.” Id. at 650. Third, the school must have had “actual
knowledge” of the harassment. Id. And fourth, the school district is liable only if “its
deliberate indifference subjects its students to harassment. That is, the deliberate
indifference must, at a minimum, cause students to undergo harassment or make them
liable or vulnerable to it.” Id. at 644-45. (internal quotation marks and citations omitted).
The Supreme Court has explained that “deliberate indifference” occurs “only
where the recipient's response to the harassment or lack thereof is clearly unreasonable in
light of the known circumstances.” Id. at 648. Courts should, however, “refrain from
second-guessing the disciplinary decisions made by school administrators.” Id.
Here, Defendants contend Plaintiffs’ Title IX claims are subject to dismissal
because P.R. was not deprived of educational opportunities, and their response to P.R.’s
claim of harassment was not deliberately indifferent. Each argument will be addressed in
turn.
A.

Exclusion from Educational Opportunities

The Court must consider whether the “harassment…effectively bar[red] the
victim's access to an educational opportunity or benefit.” Id. at 633. To satisfy this
element, a student need establish only that the sexual harassment was severe, pervasive,
and objectively offensive to the point that it undermined and detracted from the plaintiff’s
educational experience and that she was denied equal access to an institution's resources
and opportunities. Id. at 651. An evidentiary link between the harassment and access to
educational or related services, balanced with the persistence and severity of harassment,

MEMORANDUM DECISION AND ORDER - 22

can work to establish a disadvantaged environment for the victim. Id. at 652; Roe ex rel.
Callahan v. Gustine Unified Sch. Dist., 678 F. Supp. 2d 1008, 1027 (E.D. Cal. 2009).
The court in Davis explained that the most obvious example of peer sexual
harassment capable of triggering a damage claim involves the overt, physical deprivation
of access to school resources. Davis, 526 U.S. at 650. However, it is not necessary to
show physical exclusion to demonstrate deprivation of an educational opportunity by the
actions of another student. Id. at 651. “Rather, a plaintiff must establish sexual
harassment of students that is so severe, pervasive, and objectively offensive, and that so
undermines and detracts from the victims' educational experience, that the victimstudents are effectively denied equal access to an institution's resources and
opportunities.” Id.
The court in Roe gave the following examples of a negative impact on access:
“dropping grades, being diagnosed with behavioral and/or anxiety disorders, becoming
homebound or hospitalized due to harassment, physical violence, or sexual assault.” Roe
ex rel. Callahan, 678 F. Supp. 2d at 1028 (internal citations omitted).
The District’s argument here is twofold. First, the District argues that P.R. was not
denied access to educational opportunities, because P.R. could have returned to attend
classes at the middle school any time after April 26, 2017. The District argues Plaintiffs
voluntarily chose to keep P.R. out of school and elected to receive her lessons to

MEMORANDUM DECISION AND ORDER - 23

complete at home. She thereafter graduated from the eighth grade and enrolled at
Gooding High School of her own volition. 33
Plaintiffs dispute this factual scenario, pointing to P.R.’s deflating grades during
the second semester of the school year during the alleged harassment by L.C.; the fact she
did not receive lesson plans or assistance at home from the school after the school
officials learned of the harassment/sexual activities; and that she was effectively barred
from access to educational opportunities at Shoshone Middle School from the time of the
incident to the end of the school year. Plaintiffs argue that the move to Gooding was not
voluntary and was predicated instead on their perception that P.R. was blamed for the
incidents of harassment and sexual assault by L.C. Plaintiffs assert the evidence supports
an inference that P.R. and her mother received no information from the District as to how
the school would implement a strategy to ensure P.R. would not experience further
harassment upon her return to classes, either from L.C. or her classmates. They note that
L.C. was a popular soccer player; he was still enrolled in and attending high school; and
P.R. was fearful of retaliation if she returned to school. Thus, Plaintiffs contend P.R. was
effectively denied equal access to the institution’s resources and opportunities, and that
her transfer to Gooding High School presented a hardship.
Examining the facts in the light most favorable to Plaintiffs, they present evidence
of a sexual assault by a much older male student on a thirteen-year-old female student.
A review of Chapman’s deposition testimony indicates only that she was aware P.R. had
transferred to Gooding High School. S.R. testified that P.R.’s grades at Gooding High School were “[n]ot
that bad. They’re good,” and that she was proud of P.R. “because she’s still doing good in school.” S.R.
Depo. at 38.
33

MEMORANDUM DECISION AND ORDER - 24

Chapman chose to characterize what she saw on the video tapes as an intimate
relationship, supporting an inference that, in some sense, she viewed the sexual activity
as consensual. However, P.R.’s testimony and L.C.’s arrest supports a contrary inference.
P.R. described L.C. as aggressive, pressuring, and forceful, and she testified that he
performed sexual acts against her will. L.C. was charged with five counts of lewd and
lascivious conduct. Contrasted with Chapman’s testimony, a reasonable juror could infer
Chapman did not conduct a thorough investigation to understand all the facts and
circumstances. This inference is supported by Chapman’s sparse notes in the aftermath of
the police interviews with P.R. and L.C., and the lack of any independent investigation
and report prepared by the District.
While Chapman and others may testify that school officials never told P.R. and
her mother that P.R. should stay out of school, P.R. and S.R. claim they were never
informed how the District would ensure P.R. would be safe from L.C. (and the possible
taunting by others) if P.R. chose to return to the classrooms. P.R. has presented facts that,
if established, she feared not only running into L.C. while attending Shoshone Middle
and High School, but also repercussions from her classmates given L.C.’s status on the
soccer team and his inability to play soccer his senior year as a result of the sexual
assaults coming to the attention of the District.
In Doe, the court found a genuine issue of material fact on the issue of a plaintiff’s
access to her school’s educational opportunities based upon the mere fact that the
plaintiff and her attacker attended school together. Doe ex rel. Doe v. Coventry Bd. of
Educ., 630 F. Supp. 2d 226, 233 (D. Conn. 2009). There, the record showed that Jesse,
MEMORANDUM DECISION AND ORDER - 25

who had sexually assaulted the plaintiff, was permitted to continue attending school with
the plaintiff for three years after the assault, leaving constant potential for interactions
between the two students. Id. The court found that, even though the defendant argued
otherwise, “a reasonable jury could conclude that Jesse's mere presence at the high school
was harassing because it exposed [Mary Doe] to the possibility of an encounter with
him.” Doe, 630 F. Supp. 2d at 233 (quoting Kelly v. Yale Univ., No. 3:01–CV–1591,
2003 WL 1563424, at *3 (D. Conn. March 26, 2003)).
In this case, P.R. claims the sexual activity that occurred at school was not
consensual on her part. There is also the fact of P.R.’s young age, the significant age
difference between the two students, the nature of the sexual activity that occurred as
described by P.R., and L.C.’s arrest and criminal prosecution. This was not simply two
students engaging in a public display of affection in the hallways. Further, P.R. contends
she was provided no details about a purported safety plan that Chapman referenced
during one or both meetings Chapman held in May with P.R. and her mother, and P.R.
testified she would not have felt safe if she returned to Shoshone Middle or High School
knowing that L.C. also would have been in attendance. Plaintiffs have presented
sufficient evidence that, if believed by a jury, could support a finding of a denial of
educational opportunities.
Defendants argue that P.R.’s choice to complete homework assignments and to
enroll at Gooding High School in the fall effectively absolves the District of any liability
and establishes that P.R. was not deprived of access to the educational opportunities or
benefits provided by Shoshone Middle School and Shoshone High School. However,
MEMORANDUM DECISION AND ORDER - 26

P.R. testified that she felt she had no choice other than to accept the option of receiving
lessons at home for the remainder of her eighth-grade year, and to enroll in Gooding High
School, because she was unaware of the safety plan’s details.
Plaintiffs presented evidence that P.R. received at best only two lessons from the
middle school teachers over the span of several weeks, despite asking repeatedly for
more. When Chapman was asked by a teacher if work should be sent home to P.R.,
Chapman relayed that the teacher could inform P.R. she was “done.” P.R.’s grades reflect
that she struggled her last quarter at school, bringing down her already low grades.
Chapman testified that she had no knowledge regarding whether work was sent home to
P.R.; Chapman did not follow up with P.R.’s teachers to ensure P.R. was receiving
communications from them to facilitate P.R.’s success at home; and Chapman conducted
no follow up with Plaintiffs to inquire regarding their intent to register P.R. at Shoshone
High School in the fall. Although Defendants assert they did not need to follow up
because P.R. was already enrolled automatically in the high school, an inference can be
drawn from the lack of communication, especially regarding the terms of a safety plan,
that P.R. was effectively denied the opportunity to return to school unless she risked
exposure to harassment and retaliation.
Under the facts here, Plaintiffs have presented enough evidence that, if believed by
a jury, could support a finding that the District denied P.R. of educational opportunities
or benefits at Shoshone Middle and High School.

MEMORANDUM DECISION AND ORDER - 27

B.

Deliberate Indifference

In Davis, the United States Supreme Court explained that “deliberate indifference”
occurs “only where the recipient's response to the harassment or lack thereof is clearly
unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648. While Title
IX requires that the school try to remedy known peer harassment in a manner that is not
clearly unreasonable under the known circumstances, the Supreme Court made it clear
that school districts are not required to “purge” their schools of “actionable peer
harassment” or engage in “particular disciplinary action.” Id. at 648-49. The Supreme
Court rejected the premise that “nothing short of expulsion of every student accused of
misconduct involving sexual overtones would protect school systems from liability or
damages.” Id. at 648. Accordingly, “courts should refrain from second-guessing the
disciplinary decisions made by school administrators.” Id.
As further guidance, this Court and others have had occasion to examine the
deliberate indifference standard in other contexts. Deliberate indifference requires
“knowledge that a harm to a federally protected right is substantially likely, and a failure
to act upon that likelihood.” D.A. v. Meridian Joint Sch. Dist. No. 2, 289 F.R.D. 614,
622–23 (D. Idaho 2013) (quoting Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th
Cir. 2001)). The public entity's failure to act must be a result of more than mere
negligence; rather, it must involve a measure of deliberateness. Duvall, 260 F.3d at 1139.
But “deliberate indifference” is also “satisfied by something less than acts or omissions
for the very purpose of causing harm or with knowledge that harm will result.” Farmer v.
Brennan, 511 U.S. 825, 835 (1994). “Deliberate indifference will often be a fact-laden
MEMORANDUM DECISION AND ORDER - 28

question,” for which bright lines are ill-suited. Doe v. Taylor Indep. Sch. Dist., 15 F.3d
443, 457 n. 12 (5th Cir. 1994); see also Doe A. v. Green, 298 F. Supp. 2d 1025, 1036 n. 4
(D. Nev. 2004) (stating that no bright line rule in Ninth Circuit cases defines “deliberate
indifference,” and finding the same from a review outside the circuit). Liability is
imposed upon a federal funding recipient’s deliberate indifference, because “the
deliberate indifference constitute[s] intentional discrimination on the basis of sex.”
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 182 (2005).
Plaintiffs do not argue that the District took no action, but rather assert that the
District’s response was inadequate considering the circumstances. That L.C. was not
expelled is not dispositive of this issue, as a victim of peer harassment does not have the
right to any particular remedial demand. Davis, 526 U.S. at 648. However, Plaintiffs have
produced evidence from which a reasonable trier of fact could conclude that the District’s
response was inadequate, amounting to deliberate indifference.
It is undisputed that, upon becoming aware of the incident at school on April 25,
Chapman acted immediately, involved law enforcement, and suspended L.C. for nine
days. However, there is no evidence the District conducted an independent investigation
to inform its decision-making, despite Waite’s suggestion, as the Title IX officer, to
Chapman to do so. A jury considering the facts could find that the District’s
investigation, or lack thereof, into the nature of the sexual relationship between the
students was unreasonable.
There is no evidence in the record as to how Chapman concluded L.C. and P.R.
were engaged in an intimate relationship, which description connotes consent, other than
MEMORANDUM DECISION AND ORDER - 29

by watching the video tapes. Yet, P.R. testified she was pressured to perform sexual acts
against her will at school behind a locked door. Her young age also belies Chapman’s
conclusion. See Davis, 526 U.S. at 651 (noting the ages of the harasser and the victim are
important facts in determining whether gender-oriented conduct rises to the level of
actionable harassment). Further, Chapman was aware L.C. was charged criminally for his
conduct. Nonetheless, there are no school generated reports, notes, or letters providing a
record of events. Chapman’s sparse and cryptic handwritten notes together with the
formal letter of suspension to L.C.’s parents constitute the only evidence in the record
documenting the events. Under such facts, a jury could find the District’s inquiry into the
facts and circumstances was wholly deficient, which in turn misguided their response.
The District’s response consisted of a vague “safety plan” to keep L.C. at school,
which could be construed as an unreasonable response. A trier of fact could conclude
that, because Chapman believed the sexual activity was consensual, she treated L.C. more
favorably than P.R. by facilitating his educational opportunities while not facilitating
P.R.’s return to school. After L.C.’s suspension, the District allowed L.C. to continue to
attend school, with an ill-outlined safety plan, which was apparently only for him.
Chapman testified that the safety plan had nothing to do with P.R. and instead centered
around supervision of L.C. It is unclear why Chapman concluded L.C. required
supervision if P.R. was not attending school, unless there was some concern about
potentially predatory behavior. Under these facts, a jury could conclude the District’s
response was deliberately indifferent.

MEMORANDUM DECISION AND ORDER - 30

The District simply waited to hear from P.R.’s family regarding their wishes
concerning P.R.’s schooling at the middle school and high school without taking any
proactive steps to engage in a dialogue with P.R. and her family. Plaintiffs contend that
the District’s failure in that regard left P.R. vulnerable and confused, and essentially
placed her in a position that was untenable for a thirteen-year-old girl. Plaintiffs’
impression was that P.R. was being punished by being kept out of school and by not
being given the lessons necessary for her to complete schoolwork. P.R. and S.R. both
testified that option three—that of returning to school for the remainder of the 2016-17
school year—was not communicated to either of them. Further, there is no written
documentation Chapman discussed that option with P.R. and S.R. And, P.R. and S.R.
allegedly were unaware of the details of any safety plan to protect P.R.
Additionally, there is no evidence in the record of a written communication
regarding the terms of a safety plan pertaining to P.R. or L.C. to Shoshone Middle or
High School teachers. The record before the Court includes evidence that P.R. and her
mother had no information from the District as to how the school would put in place a
strategy to ensure P.R. would not experience further harassment upon her return to
school, either from L.C. or her classmates, and that P.R. was fearful of retaliation if she
returned to school. Under these facts, a jury could find that the District’s response
constituted deliberate indifference. 34
The Court likens the District’s response to an employer who proposes that the victim of sexual
harassment be moved to a different department. However, victims of sexual harassment “should not have
to work in a less desirable location as a result of the employer’s remedial plan…reasonable conduct
involves taking action against the harasser. Thus, changing plaintiff’s class schedule was not a step
34

MEMORANDUM DECISION AND ORDER - 31

While Defendants argue otherwise, the Court notes that a jury typically determines
whether an institution acted with deliberate indifference. Roe ex rel. Callahan, 678 F.
Supp. 2d at 1038. Plaintiffs have produced sufficient evidence from which a trier of fact
could conclude that the District was deliberately indifferent to peer harassment under the
circumstances here. Accordingly, Defendants’ motion for summary judgment will be
denied as to Counts One and Two under Title IX.
4. Section 1983 Claim – Count 4
Plaintiffs allege Defendants’ failure to take adequate steps to remedy the peer
sexual harassment rose to the level of intentional discrimination based on P.R.’s sex.
Specifically, Plaintiffs allege that Chapman and Waite treated L.C. more favorably than
P.R. by facilitating his return to school and not facilitating her return to school. Plaintiffs
contend Chapman and Waite are not shielded by qualified immunity, because the right to
be free from intentional gender discrimination by a state actor is clearly established under
Title IX. As for their Monell claim against the District, Plaintiffs allege the District failed
to train its supervisors to appropriately respond to instances of peer sexual assault, in
violation of what Plaintiffs claim are the applicable Shoshone School District policies.
(Dkt. 30-2 at 13.)
Defendants argue that there is no evidence that a similarly situated group was
treated more favorably than P.R. Therefore, Defendants argue the Court cannot find a
constitutional violation based upon violation of the Equal Protection clause. If a
reasonably calculated to end the peer sexual harassment and a reasonable official would not have believed
it to be.” Nicole M. v. Martinez Unified School Dist., 964 F.Supp. 1369, 1386 (N.D. Cal. 1997).

MEMORANDUM DECISION AND ORDER - 32

constitutional violation did occur, Chapman and Waite argue they are entitled to qualified
immunity. Regarding the Monell claim against the District, Defendants assert Plaintiffs
have not established either a constitutional violation or identified a Shoshone School
District official policy or custom that could have caused the deprivation of a
constitutional right.
A.

Section 1983 Claim Against Chapman and Waite

42 U.S.C. § 1983 provides a remedy to individuals whose federal constitutional
rights have been violated under the color of state law. Burke v. Cty. of Alameda, 586 F.3d
725, 731 (9th Cir. 2009). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege
four elements: “(1) a violation of rights protected by the Constitution, or created by
federal statute (2) proximately caused (3) by conduct of a ‘person’ (4) acting under color
of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.1991). Section 1983 is
“‘not itself a source of substantive rights’ but merely provides ‘a method for vindicating
federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393–94 (1989)
(quoting Baker v. McCollan, 443 U.S. 137, 143 n. 3 (1979)).
Chapman and Waite have asserted the defense of qualified immunity, which
analysis entails three steps. First, the court must determine whether, taken in the light
most favorable to the plaintiff, the facts alleged show a violation of the plaintiff's
statutory or constitutional rights. Saucier v. Katz, 533 U.S. 194, 201 (2001). If a violation
has been alleged, the court next determines whether the right infringed was clearly
established at the time of the alleged violation. Finally, the court assesses whether it
would be clear to a reasonable person in the defendant's position that her conduct was
MEMORANDUM DECISION AND ORDER - 33

unlawful in the situation she confronted, for even if the defendant violated clearly
established law, immunity is nonetheless available if she made a reasonable mistake with
regard to what the law requires. Id at 202, 205; see also Frederick v. Morse, 439 F.3d
1114, 1123 (9th Cir. 2006) (characterizing this final inquiry as a discrete third step in
qualified immunity analysis). “This is not to say that an official action is protected by
qualified immunity unless the very action in question has previously been held unlawful,
but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citing Anderson v. Creighton, 483 U.S. 635,
640 (1987)).
Accordingly, the Court will address whether Plaintiffs’ complaint alleges a
violation of rights under the Fourteenth Amendment or under Title IX.
i.

Equal Protection

The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o
state shall ... deny to any person within its jurisdiction the equal protection of the laws.”
U.S. Const., amend. XIV, § 1. This “is essentially a direction that all similarly situated
persons should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985). “To establish a § 1983 equal protection violation, the plaintiffs must show
that the defendants, acting under color of state law, discriminated against [P.R.] as [a]
member[ ] of an identifiable class and that the discrimination was intentional” or resulted
from deliberate indifference. Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130,
1134 (9th Cir. 2003). Discriminatory intent “implies that the decision maker...selected or
reaffirmed a particular course of action at least in part ‘because of’ not merely ‘in spite
MEMORANDUM DECISION AND ORDER - 34

of’ its adverse effects upon an identifiable group.” Personnel Adm'r v. Feeney, 442 U.S.
256, 279 (1979). Deliberate indifference may be found if a school official or
administrator responds to known discrimination or harassment in a manner that is clearly
unreasonable. See Flores, 324 F.3d at 1135.
In support of their equal protection claim, Plaintiffs cite evidence used to support
their Title IX claim and assert disparate treatment is established by Chapman’s decision
to allow L.C. to return to school after a nine-day suspension, while effectively preventing
P.R.’s return to school. Put differently, Plaintiffs assert only that Defendants knowingly
or with deliberate indifference treated P.R. differently than L.C. While the Court finds
there are disputed facts material to finding deliberate indifference under Title IX, what is
missing to support an Equal Protection claim are facts establishing Waite and Chapman
treated other students with similar claims of harassment or sexual assault differently than
they treated P.R. At this stage in the proceedings, Plaintiffs must present sufficient
evidence to show discriminatory treatment—i.e., evidence that Defendants treated P.R.
differently from similarly situated individuals. Freeman v. City of Santa Ana, 68 F3d
1180, 1187 (9th Cir. 1995); Attorney General v. Irish People, Inc., 684 F.2d 928, 946
(D.C. Cir. 1982) (“Discrimination cannot exist in a vacuum; it can be found only in the
unequal treatment of people in similar circumstances.”).
Other courts that have examined equal protection claims asserted in conjunction
with Title IX claims require a showing of disparate treatment of the individual victim of
harassment compared to other similarly situated students. See Flores, 324 F.3d at 1135
(record contained evidence that the plaintiffs’ complaints of harassment based on their
MEMORANDUM DECISION AND ORDER - 35

actual or perceived sexual orientation were treated differently from other types of
harassment); Nabozny v. Podlesny, 92 F.3d. 446, 454 (7th Cir. 1996) (record suggested
that the plaintiff was treated differently from other students based upon evidence the
school administrators enforced harassment policies when presented with complaints by
female students, but failed to enforce them with regard to a male homosexual plaintiff’s
complaints of similar harassment); In re Doe v. Gladstone School Dist., No. 3:10-cv1172-JE, 2012 WL 2049173 *11 (D. Or. June 6, 2012) (finding that, absent evidence on
summary judgment of the defendant’s response to any other alleged harassment, the
plaintiff’s equal protection claim failed); Jensen v. Reeves, 45 F.Supp.2d 1265, 1278 (D.
Utah 1999) (holding student’s equal protection claim failed in the absence of evidence
that he was disciplined in a manner differently than other similarly situated students).
The Court found no evidence in the record of either Chapman’s or Waite’s
responses to alleged harassment by other Shoshone Middle or High School students. To
support an equal protection claim, Plaintiffs must provide some evidence that other
students similarly situated to P.R. received more favorable treatment by the individual
Defendants. Here, P.R. has not provided evidence that could establish her complaint of
harassment was treated differently from complaints of harassment by other students,
based upon an impermissible classification. Consequently, P.R. has not established a
triable issue of fact as to her equal protection claims against Chapman and Waite
individually. See Annamaria M. v. Napa Valley Unified School Dist., No. C 03-0101
VRW, 2006 WL 1525733, at *9 (N.D. Cal. May 30, 2006) (finding plaintiff did not
establish an equal protection claim of student who alleged only she was a member of a
MEMORANDUM DECISION AND ORDER - 36

protected class; defendant was a member of a different class; and defendants acted
unreasonably.) Therefore, the Court need not reach the issue of qualified immunity.
The Court will grant summary judgment to Defendants on Plaintiffs’ Equal
Protection claims against Chapman and Waite. 35
ii.

Gender Discrimination

Plaintiffs also plausibly advance a theory that P.R.’s Section 1983 claim alleges
Chapman and Waite individually deprived P.R. of her right to be free from gender
discrimination in violation of Title IX.
The Court notes that the Ninth Circuit has expressly declined to address whether
school officials and employees can be sued under Section 1983 for a violation of Title IX.
See Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1449 (9th Cir. 1995); see also Oona
R-S ex rel Kate S v. McCaffrey, 143 F.3d 473, 475 (9th Cir. 1998). 36 Courts in other
districts, however, have concluded that school officials may be sued in their individual
capacities under Section 1983 for violations of rights protected by Title IX. See Oona R-S
ex rel Kate S. v. Santa Rosa City Schools, 890 F.Supp. 1452, 1459-62 (N.D. Cal.1995);
Nicole M. By & Through Jacqueline M. v. Martinez Unified Sch. Dist., 964 F. Supp.

Although there is insufficient evidence presently before the Court to raise a genuine issue of
material fact that P.R. was treated differently than other students similarly situated to her with regard to
enforcement of school policies related to sexual harassment, the Court may conclude otherwise after
evidence is presented at the time of trial. In this regard, the Court then would consider the deliberate
indifference and qualified immunity arguments as well.
35

In Oona, the Ninth Circuit expressly declined to consider whether an individual could be sued
under Section 1983 for violations of Title IX, or whether a suit against the school district itself was the
exclusive remedy available for such violations. 143 F.3d at 475.
36

MEMORANDUM DECISION AND ORDER - 37

1369, 1379-81 (N.D. Cal. 1997); Annamaria M v. Napa Valley Unified Sch. Dist., No. C
03-0101 VRW, 2006 WL 1525733, at *7 (N.D. Cal. May 30, 2006).
In the only line of cases the Court located that addressed the issue, the Northern
District of California, in Annamaria M v. Napa Valley Unified Sch. Dist., held that an
allegation of deliberate indifference on the part of the school principal sufficient to state a
Title IX claim against the school district applied equally to the Section 1983 claim
against the principal individually. 37 The court further found that “the duty to take
reasonable steps to remedy a known hostile environment created by a peer [was] clearly
established” in the Ninth Circuit no later than 1998. 2006 WL 1525733, at *8 (citing
Oona R-S, 143 F.3d at 477 (holding “that the defendants [were] not entitled to immunity
for their failure to take steps to remedy the hostile environment created by the male
students in [plaintiff]'s class.”)); see also Nicole M, 964 F.Supp. at 1383 (“Particularly in
the context of sexual harassment, [a school principal]'s failure to act is significant
because it may constitute evidence of her intent to discriminate on the basis of sex.”); cf.
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) (stating in the Title IX context
that “deliberate indifference to sexual harassment of a student by another student squarely
constitutes discrimination on the basis of sex.”).
Defendants did not advance any argument for dismissal of this claim in their brief
in support of their motion for summary judgment, and Plaintiffs similarly failed to

Annamaria M came before the court on a motion to dismiss. The court concluded the
allegations in the complaint stated a claim under Section 1983 based upon violation of Title IX. 2006 WL
1525733 at *7-8.
37

MEMORANDUM DECISION AND ORDER - 38

address the issue. Accordingly, to the extent Plaintiffs advance a claim under Section
1983 based upon a violation of Title IX, the claim survives summary judgment.
B.

Section 1983 Claim Against the District

For Plaintiffs to prevail on their Section 1983 claim against the District, they must
establish that the execution of an official policy or unofficial custom caused the alleged
constitutional violation. Monell v. Dept. of Soc. Servs. of the City of New York, 436 U.S.
658, 694 (1978). Under Monell, the requisite elements of a § 1983 claim against a
municipality or private entity performing a state function are the following: (1) the
plaintiff was deprived of a constitutional right; (2) the municipality or entity had a policy
or custom; (3) the policy or custom amounted to deliberate indifference to plaintiff’s
constitutional right; and (4) the policy or custom was the moving force behind the
constitutional violation. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110-11 (9th Cir.
2001).
The policy or custom “may not be proved through reference to a single
unconstitutional incident unless proof of the incident includes proof that it was caused by
an existing unconstitutional policy.” Rogan v. City of Los Angeles, 668 F. Supp. 1384,
1395 (C.D. Cal. 1987) (internal quotation marks and alteration omitted). An unwritten
policy or custom must be so “persistent and widespread” that it constitutes a “permanent
and well settled” practice. Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co.,
398 U.S. 144, 167-168 (1970)). “Liability for improper custom may not be predicated on
isolated or sporadic incidents; it must be founded upon practices of sufficient duration,
frequency and consistency that the conduct has become a traditional method of carrying
MEMORANDUM DECISION AND ORDER - 39

out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Further, a municipality or
private entity performing a state function “may be held liable under § 1983 when the
individual who committed the constitutional tort was an official with final policy-making
authority or such an official ratified a subordinate's unconstitutional decision or action
and the basis for it.” Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir.
2010), overruled in part on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d
1060, 1069 (9th Cir. 2016) (en banc).
Plaintiffs contend Chapman and Waite failed to comply with Title IX regulations
and District policies related to discipline for instances of sexual harassment. However,
because Plaintiffs’ evidence fails to establish an equal protection violation, the first
element for establishing liability against the District—deprivation of a constitutional
right—is not met. Even if Plaintiffs later establish either a violation of the Equal
Protection clause or establish individual liability under Section 1983 for a violation of
Title IX, the Court notes Plaintiffs did not present evidence of an express policy or
custom of gender discrimination in the handling of peer sexual harassment, nor did the
Court find evidence in the record before it of the District’s failure to train its employees
to appropriately respond to allegations of peer sexual harassment. 38

Plaintiffs provided a copy of the “Lincoln County School District” policies in their Appendix,
indicating that they applied to the Shoshone School District. (Dkt. 30-1 at 18, and 30-2 at 13.) Defendants
did not contest the applicability or admissibility of the policy excerpts provided. (Dkt. 32.) According to
the District’s website, Shoshone Middle School and High School are located within Lincoln County,
Idaho, but appear to be part of the Shoshone Joint School District. See http://www.shoshonesd.org/.
38

MEMORANDUM DECISION AND ORDER - 40

The Court will therefore grant Defendants’ motion with regard to Plaintiffs’
claims under Section 1983 against the District.

CONCLUSION
Based upon thorough consideration of the record and relevant legal authorities, the
Court concludes that a reasonable jury could find that the District acted in a deliberately
indifferent manner with respect to its response to the incidents at school on April 24 and
25, 2017, such that P.R. was effectively denied access to educational opportunities or
benefits, in violation of Title IX. However, Plaintiffs did not introduce sufficient facts to
support a claim against Chapman and Waite individually for violation of the Equal
Protection clause of the Fourteenth Amendment under 42 U.S.C. § 1983. To the extent
Plaintiffs advance a theory under Section 1983 based upon the alleged violation of Title
IX, the Section 1983 claims against Chapman and Waite in their individual capacities
survive summary judgment. Plaintiffs’ Monell claim against the District does not survive,
because Plaintiffs failed to establish that a specific policy or custom caused the alleged
statutory or constitutional violation.

MEMORANDUM DECISION AND ORDER - 41

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Defendants’ Motion for Summary Judgment (Dkt. 22) is GRANTED IN
PART AND DENIED IN PART. Summary judgment is granted, in part,
on Count Four with respect to the Equal Protection claim and the Monell
claim, and denied on Counts One and Two.

2)

Counts Three, Five, Six, Seven, Eight, and Nine are DISMISSED without
prejudice pursuant to Fed. Rule Civ. P. 41(a)(2).

3)

Defendants’ Motion to Strike (Dkt. 31) is deemed MOOT.

4)

The Court will conduct a telephonic scheduling conference with the parties
for setting a trial date. A separate notice of hearing is forthcoming.

DATED: December 21, 2018
_________________________
Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 42