Those cheerleaders in New Mexico—is that student-on-student sexual harassment?

Yesterday we told you about the case in New Mexico where two cheerleaders took pictures and video of another cheerleader in the shower at an out of town camp.  Yesterday we explained why the plaintiff’s Equal Protection Class of One claim was doomed to failure.  But the Title IX claim was a closer call.

The cheerleaders not only invaded their teammate’s privacy, they also posted the video on Snapchat and made ugly comments about the girl’s physical appearance. I’m not going to re-publish those comments here other than this one: “who would want to have sex with her?” The other comments were even more personal and vulgar.

Mean girl cheerleaders. Sheesh.

The student eventually filed suit against Albuquerque Public Schools and five individual employees alleging that they were guilty of sex discrimination under Title IX.  Today we will tell you how the court dealt with that issue. Tomorrow we will tell you about the retaliation claim.

I expect many readers will be surprised to hear that the court tossed out the Title IX claim without even getting to the issue of how the school responded to the situation.  To win her case, the plaintiff had to prove that she was subjected to harassment based on her sex and that the harassment was really bad.  The plaintiff failed to do that, and thus, the court did not even bother to discuss how the school responded.

The court did a fine grained analysis of all that the plaintiff alleged.  The plaintiff cited four specific incidents of harassment that occurred after the shower incident.  The court reviewed all four and concluded that none of them showed that the harassment was “based on her sex.”  The things that happened after the shower were mostly name-calling. The court noted that name-calling, by itself, particularly among adolescents, is rarely going to amount to the type of “egregious” conduct “based on sex” that violates Title IX.  It also hurt the plaintiff’s cause that she alleged that the harassment was in retaliation for her reporting the shower incident, and that her brother was also harassed. The court reasoned that 1) if the brother was also harassed, then the harassment was not motivated solely by the plaintiff’s sex; and 2) if it was an act of retaliation, then the motivation for the harassment was retaliation—not sex discrimination.

As to the original incident—the publication of the pictures from the shower—the court agreed that this was “based on sex.”  The harassment was not really based on the fact that the girl was a girl. It was because the harassers did not think she was the right kind of girl.  She did not satisfy their standards of beauty. Key Quote:

The allegations in Plaintiff’s Amended Complaint support her theory that B.P.’s teammates harassed her on July 25, 2015 based on their notions of attractive femininity.  Their statements [here the court quotes the vulgar comments] are evidence that B.P.’s teammates believed B.P. did not conform to their ideas of the stereotypical feminine appearance.

That sounds promising for the plaintiff, but the plaintiff still failed to show that the harassment was “pervasive.”  So the original shower incident was “based on sex” but not “pervasive” and the subsequent incidents were not “based on sex.”    The Title IX claim was dismissed.

But that’s not the end of it.  The student also alleged that she was punished for reporting sexual harassment. Tomorrow we will tell you how the court handled that.

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.


Tomorrow: a textbook example of what not to do….