Earlier this week we told you about the ugly incident among some cheerleaders in Albuquerque that led to litigation.  On Wednesday we explained why the cheerleader/plaintiff failed to establish a claim under the Equal Protection Clause of the Constitution. Yesterday we told you why the court ruled tossed out her Title IX claim.  Today we review the claim of retaliation. This one survived.

Refresher: two other cheerleaders took pictures and a video of the plaintiff while she was in the shower at a cheerleader camp. They then posted the pictures on Snapchat and made ugly comments about the girl’s appearance.

One thing we haven’t talked about yet is how the school district responded to the girl’s report of the shower incident.  It was the district’s response that formed the basis of the retaliation claim.  Here is what the plaintiff alleges:

*The cheerleading coach’s first response was to instruct the victim to apologize to the perpetrators for her “overreaction.”

*The coach did not discipline the other girls because “she did not want to ruin their trip.”

*The coach threatened to punish the victim if she “ruined the trip” for the others.

*The coach downplayed this incident because another girl who was photographed on the toilet did not complain about it.

*The coach and an assistant impeded the girl’s efforts to get help from hotel security.

*The coach asked the girl’s parents not to report the incident to the police, (which the parents did anyway) and then impeded the police investigation.

*The coach excluded the plaintiff from a team photo and other team activities and demoted her from her position on the squad.

*The coach told the girl that the incident was “a joke” and that “this was just what girls did during sleepovers.”

*The coach criticized the girl to other coaches, calling her a “baby” and a “bad teammate.”

Ultimately the school did take disciplinary action with one of the perpetrators, but not the other one.  Later, when the parents sought a transfer for the girl to another high school, the request was denied.  Eventually, however, the school offered to accept the transfer, but only if the parents would drop any possible legal claim.  The school was on notice of a possible claim because it knew that the parents had retained counsel who had given written notice of a possible tort claim.

The court held that these allegations, if proven true, would make a valid case of illegal retaliation under Title IX.  The student engaged in “protected activity” by reporting the original incident in the shower; she suffered adverse consequences after making the report; and a reasonable juror could conclude that the adverse consequences were caused by the initial report.

Thus the school officials, primarily the cheerleading coach, walked right into a valid lawsuit through their own words and actions.  I think there is a lesson in there for all of us.

The case is Higgins v. Saavedra.  This part of the case was decided by the U.S. District Court for New Mexico on January 8, 2018.  We found it at 2018 WL 372241.

DAWG BONE: COACHES AND SPONSORS NEED TRAINING ABOUT HOW TO RESPOND TO REPORTS OF SEXUAL HARASSMENT