Judge Tosses Cheerleader’s Conspiracy Claims Over Nude Photos

ALBUQUERQUE (CN) — A New Mexico cheerleader who claims she wasn’t allowed to transfer schools unless she promised not to sue over teammates taking nude pictures of her and posting them on Snapchat cannot bring conspiracy claims against school officials, a federal judge ruled.

The cheerleader referred to in court documents as B.P. says she was 15 when the varsity cheer squad at West Mesa High School in Albuquerque took a trip to a cheerleading camp in Phoenix.

B.P. claims her teammates used the J.V. coach’s cellphone to take photos and video of her in the shower without her consent, even jerking the shower curtain out of her hands to take video. She alleges that they showed the video to at least seven teammates and posted it on Snapchat.

According to the original complaint, B.P. reported the incident to lead defendant Brittny Saavedra, the cheerleading coach, who allegedly called it “no big deal,” and said she wouldn’t punish the other cheerleaders because it would “ruin the trip for everybody.”

After returning to Albuquerque, B.P. says, her teammates and coaches harassed her; her coaches allegedly called her a “baby” and told her to “get over it.” She says she was demoted, excluded from team activities, and finally quit the team because of the harassment.

Despite her parents’ repeated attempts to resolve the matter with the defendant Albuquerque Public Schools District, only one girl involved in the photographing and harassment was disciplined, and she was allowed to remain on the varsity cheerleading squad, B.P. says.

Because she no longer felt safe at school, B.P. and her younger brother asked to be transferred to another high school in the district. But the school district told them they could not transfer unless her parents signed a release of liability from the nude photos incident, the complaint states.

The lawsuit cites an email from defendant APS Executive Director of Compliance for Special Education Cynthia Soo Hoo, which states in part: “(T)he District is willing to facilitate a transfer of [B.P.] ahead of other students if we can put any and all disputes behind us. Attached is the settlement agreement necessary for an approved transfer to Albuquerque High School.”

When the family refused to sign the release, B.P. says, her transfer was delayed for months, and approved only after the family filed a petition for a temporary restraining order.

On Thursday, U.S. Magistrate Judge William P. Lynch dismissed B.P.’s claims of conspiracy brought under 41 USC § 1985.

B.P.’s complaint cites the federal law as the basis for an accusation of conspiracy “with the intent to deny B.P. equal protection of the law, in retaliation against B.P. for her exercise of her First Amendment right to administratively report the harassment she faced and to petition the courts for redress. “

Judge Lynch, however, found that 41 USC § 1985 doesn’t apply to B.P.’s allegations. One subsection of the law refers only to conspiracy against federal officers, and the two other subsections apply only when the alleged conspiracy is motivated by racial or other class-based animus.

He called the statute a “Reconstruction-era civil rights statute” meant to guard members of specific protected classes.

“Defendants’ alleged motivation was a desire to intimidate B.P. into waiving her legal claims. But Plaintiff does not make any allegations that this desire was founded in racial or other class-based discriminatory animus,” Lynch wrote.

The judge added, “Plaintiff appears to contend that the § 1985 claim is actionable because the rights of which Defendants allegedly conspired to deprive B.P. were grounded in the First Amendment. This argument is misplaced. Regardless of the origins of the right deprived, the conspirators must have been motivated by class-based animus.”

None of the cheerleader’s other claims – including civil rights violations, Title IX violations, retaliation, failure to protect from pervasive harassment, deprivation of a public education and emotional distress – were addressed in Thursday’s opinion.

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