Cheerleaders acting badly. It happens in New Mexico too.

There is a doozy of a cheerleading case going on in New Mexico.  We’re going to spend the rest of this week on this case because the court has now made three separate rulings that are significant for school administrators and lawyers.

According to B.P., soon to be known as “the Plaintiff,” two of her fellow cheerleaders took pictures and shot a video of her in the shower at a cheerleading camp.  They then put the video on Snapchat and shared it with other students. The lawsuit alleges that other students harassed B.P. and her brother for months after this incident.

B.P. and her brother applied for transfers to another high school within the Albuquerque Public Schools.  The brother’s transfer was approved.  B.P.’s was not.  The brother was in the general education program. B.P. received special education services due to dyslexia.

In the first ruling we will tell you about, the court granted the school’s Motion for a Partial Summary Judgment. The specific issue before the court was the plaintiff’s claim that the APS had denied B.P. the Equal Protection of the laws, as required by the Constitution.

Equal Protection cases are usually about a group of people treated badly because of their membership in the group.  Thus the traditional Equal Protection case would be about discrimination based on race, sex, religion or disability.  But there is another type of case that the courts recognize.  It’s called a “class of one” case.  The allegation in such a case is that this one individual was treated differently than all the others.  To make an Equal Protection “class of one” claim, the plaintiff has to show a comparison of her situation to that of some other person who is similar to her “in all material respects.”  There were many kids in APS who got a transfer, including B.P.’s brother. But none of them were similar to B.P. “in all material respects.”

B.P.’s special education status was a crucial factor.  The APS system automatically culled out transfer applications from students with IEPs and forwarded them to the special education department for a determination of whether or not the new school would be able to provide the services called for in the IEP.  This was a “material” factor that made B.P.’s request different.  Key Quote:

Thus APS administrators were automatically notified that B.P.’s transfer request would require an additional hurdle that would be unnecessary for a general education student.

Here at the Daily Dawg we like to use court cases to teach lessons. This court decision holds potential for a lot of lessons, but the actual lesson of this decision is quite limited. This is a cheerleading case that teaches us nothing about cheerleading. It’s a bullying case that teaches us nothing about bullying. It’s a social media case that teaches us nothing about social media.  It could be a 504 case, but this decision teaches us nothing about that.

The only lesson here is that it’s very hard for plaintiffs to succeed on an Equal Protection “class of one” claim. They bear a heavy burden of proof to find someone who is in an identical situation in all material respects.  If they find that person, they then have to prove that the parties were treated differently “without any conceivable basis other than a wholly illegitimate motive.”  Tough burden of proof.

There is much more to this case. So come back tomorrow and we will talk about Title IX.

The case of Higgins v. Saavedra was decided by the U.S. District Court in New Mexico on January 23, 2018. We found it at 2018 WL 555457.


Tomorrow: Was this sexual harassment?