Burge v. Colton School District 53
Filing
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OPINION AND ORDER: Upon review of both the F&R and CSDs subsequent objections, I ADOPT the F&R as my own opinion. Accordingly, I DENY CSDs Motion for Summary Judgment 10 against Braedens First Claim and GRANT it against Braedens Second Clai m. I GRANT Braedens Cross Motion for Summary Judgment 12 on his First Claim and DENY it on his Second Claim. CSDs conduct and policies violated Braedens First Amendment rights to free speech. CSDmust remove Braedens suspension from his school records and compensate Braeden for his reasonable attorney fees, costs and disbursements pursuant to 42 U.S.C. § 1988. Signed on 4/17/15 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
BRAEDEN BURGE by and through his
guardian at litem KELLY BURGE,
No. 3:14-00605-ST
Plaintiff,
OPINION AND ORDER
v.
COLTON SCHOOL DISTRICT 53,
Defendants.
MOSMAN, J.,
This case presents the type of situation the Ninth Circuit recently analogized to walking a
tightrope—a school administration faced with a potential threat of violence and therefore
required to balance school safety against the constitutional rights of its students. 1 Here the
Colton School District (“CSD”) decided to suspend Braeden Burge (“Braeden”) for his out-ofschool comments made on Facebook. Braeden now alleges claims under 42 U.S.C. § 1983 for
violations of his First Amendment right to free speech (“First Claim”) and his Fourteenth
Amendment right to due process (“Second Claim”). The parties filed competing motions for
summary judgment and Magistrate Judge Stewart issued a Findings and Recommendation
(“F&R”) [23], recommending that summary judgment be granted in favor of Braeden on the
First Claim and in favor of CSD on the Second Claim. Upon review, I agree with Judge Stewart's
recommendations, and I ADOPT the F&R as my own opinion. I write only to address CSD’s
objection that the F&R failed to adequately account for Veronica Bouck’s reaction when
concluding that Braeden’s comments did not trigger the school’s ability to restrict speech that
“would materially and substantially interfere with the requirements of appropriate discipline in
the operation of the school.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509
(1969) (citations omitted).
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“With the advent of the Internet and in the wake of school shootings at Columbine, Santee, Newtown and many
others, school administrators face the daunting task of evaluating potential threats of violence and keeping their
students safe without impinging on their constitutional rights. It is a feat like tightrope balancing, where an error in
judgment can lead to a tragic result.” Wynar v. Douglas Co. Sch. Dist., 728 F.3d 1062, 1062 (9th Cir. 2013).
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BACKGROUND
At the time of the incident in question, Braeden was a fourteen-year-old eighth-grade
student at Colton Middle School (“CMS”). Upon learning that he had received a “C” from his
health teacher, Ms. Bouck, and subsequently being grounded by his mother for a portion of the
summer, Braeden vented his frustration in a series of comments on his personal Facebook page.
Braeden initially posted that he wanted to “start a petition to get mrs. Bouck fired, she’s the
worst teacher ever.” After a friend asked “what did [Ms. Bouck] do?” Braedon responded “She’s
just a bitch haha.” When his friend wrote back “XD HAHAHAHA!!,” Braeden responded “Ya
haha she needs to be shot.” Braeden’s mother monitors Braeden’s Facebook page on a daily
basis and within twenty-four hours instructed Braeden to delete the entire post, which he did.
Braeden posted these comments from his home computer on a day that school was not in
session. Only those Facebook users whom Braeden had confirmed as “friends” would have been
able to view the comments he posted. Braeden has never been Facebook friends with Ms. Bouck
(or any other CMS or CSD employee or staff member) and did not intend for Ms. Bouck to see
his comments. Braeden Decl. [14] ¶ 4. Braeden did not intend to threaten or otherwise
communicate with Ms. Bouck and did not seriously believe that Ms. Bouck should be shot.
Braeden Depo. [13] Ex. 1 pp. 33-34. Braeden was not even serious about starting a petition to get
Ms. Bouck fired. Id. at 30. Instead, his only purpose in posting these comments was “to elicit a
response from [his] friends, just to see what they thought about it.” Id. at 29.
Six weeks later, the parent of another CMS student anonymously placed a printout of
Braeden’s Facebook post in the school mailbox of CMS’s principal, Kara Powell. Upon
receiving the printout, Principal Powell called Braeden to her office where she questioned him,
showed him CSD’s applicable policies, and gave him a three-and-one-half day in-school
suspension. According to Principal Powell, Braeden was “respectful . . . and compliant.” Powell
Depo., [13] Ex. 6 p. 15. After deciding the punishment, Principal Powell also called Braeden’s
mother, who explained that she had already spoken with Braeden about the issue and argued that
CMS could not discipline her child for misconduct that occurred outside of school. Principal
Powell suspended Braeden despite Ms. Burge’s opposition.
Braeden had never before been disciplined by CMS or CSD for any act of violence and
had never been convicted of a juvenile crime of any kind. Neither Principal Powell nor CSD
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Superintendent Linda Johnson investigated whether Braeden had access to or experience with
guns, contacted the police, or referred him to a counselor. Furthermore, Principal Powell did not
discuss the Facebook posts with any of Braeden’s other teachers and did not investigate whether
Braeden had made subsequent Facebook posts of a similar nature. Ms. Bouck did not take off
any time from work as a result of Braeden’s Facebook posts.
After his suspension, Braeden returned to classes and completed the last week of eighth
grade without incident. Although Ms. Bouck was allegedly “scared,” “nervous,” and “upset”
about Braeden’s comments, and consequently asked the school administration to keep Braeden
out of her class, she accepted the school’s decision for Braeden to return and did not discuss the
comments with him or with any other CMS teachers. Braeden also attended a class field trip
supervised by Ms. Bouck. Unbeknownst to Braeden, he was followed that day by an educational
assistant, who noted there were no disciplinary problems.
LEGAL STANDARD
The magistrate judge makes only recommendations to the court, to which any party may
file written objections. The court is not bound by the recommendations of the magistrate judge,
but retains responsibility for making the final determination. The court is generally required to
make a de novo determination regarding those portions of the report or specified findings or
recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court
is not required to review, de novo or under any other standard, the factual or legal conclusions of
the magistrate judge as to those portions of the F&R to which no objections are addressed. See
Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003). While the level of scrutiny under which I am required to review the F&R
depends on whether or not objections have been filed, in either case, I am free to accept, reject,
or modify any part of the F&R. 28 U.S.C. § 636(b)(1)(C).
Summary judgment is appropriate when there is no genuine issue as to any material fact
and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). The
initial burden is on the moving party to point out the absence of any genuine issue of material
fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through
the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court “draws all
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justifiable inferences in favor of the non-moving party.” Fresno Motors, LLC v. Mercedes Benz
USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)).
DISCUSSION
CSD objects to Judge Stewart’s conclusion that Braeden’s comments did not trigger the
school’s ability to restrict speech that “would materially and substantially interfere with the
requirements of appropriate discipline in the operation of the school.” Tinker 393 U.S. at 509.
Although the Supreme Court has never directly applied this test to off-campus student speech,
the Ninth Circuit has done so, holding that “when faced with an identifiable threat of school
violence, schools may take disciplinary action in response to off-campus speech that meets the
requirements of Tinker.” Wynar v. Douglas Co. Sch. Dist., 728 F.3d 1062, 1069 (9th Cir. 2013).
Accordingly, Judge Stewart applied the standard laid out in Tinker and concluded that Braeden’s
comments did not fit within its exception to First Amendment protections because the comments
did not have a “material and substantial” impact on either classroom activities or administrative
responsibilities.
CSD argues that Judge Stewart’s analysis overlooks the effect that Braeden’s comments
had on Ms. Bouck—who was allegedly “scared,” “nervous,” and “upset,” and consequently
asked the school administration to keep Braeden out of her class. CSD contends that this reaction
is sufficient to support a rational juror in finding that Braeden’s comments caused a material and
substantial interference with school discipline. 2 Therefore, CSD objects to Judge Stewart’s
conclusion that summary judgment is appropriate.
In analyzing the question of whether Ms. Bouck’s reaction could reasonably support a
finding that Braeden’s comments caused a material and substantial interference with appropriate
school discipline, it is helpful to compare the Ninth Circuit’s decision in Wynar to the Third
Circuit’s decision in J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3rd Cir.
2011). In Wynar, a high-school student was temporarily expelled for sending MySpace
messages from his home computer to his friends, bragging about his array of weapons,
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CSD additionally contends that the interference necessary to trigger Tinker’s exception to First Amendment
protections need not entail a potential school shooting, but might also include the effect on staff morale or the
resulting obligation to vet purported jokes to decide if any need be taken seriously. While this may be true, CSD
provides no evidence that any such secondary effects actually occurred.
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threatening to shoot specific classmates on a specific date, and invoking the image of the
Virginia Tech massacre. 728 F.3d at 1065–66. His friends, with whom he had apparently joked
about school violence in the past, became alarmed by the escalating tenor of the comments and
brought them to the attention of their football coach and subsequently the school principal. Id.
Considering the comments a serious threat, the school officials contacted the police, suspended
the student for ten days, and ultimately expelled the student temporarily. Id. Others within the
school community also took the perceived threat seriously, including the father of one of the girls
mentioned in the messages, who would not let his daughter return to school if the student was
there. Id. at 1071. Consequently, even though the student insisted his comments were made in
jest, the Ninth Circuit held that the school’s punishment did not violate the student’s First
Amendment rights because the “school district officials reasonably could have predicted that
they would have to spend considerable time dealing with parents’ and students’ concerns and
ensuring that appropriate safety measures were in place.” Id. (citation omitted).
In J.S., a student was suspended for creating a fake MySpace profile parodying her
middle-school principal with crude language and sexually explicit content. 650 F.3d at 920 . The
profile generated “general rumblings” in the school, led to a disruption of one teacher’s class,
and caused the student counselor—who also happened to be the Principal’s wife—to reschedule
some meetings. Id. at 922–23. However, the Third Circuit held that because of the outrageous
nature of the profile, no reasonable person could have taken it seriously, and the record indicated
that no one actually did. Id. at 929. Furthermore, while the court acknowledged the discomfort
the offensive speech might have caused the Principal, it held that this did not constitute a
material and substantial disruption because “[t]he Supreme Court has held time and again, both
within and outside of the school context, that the mere fact that someone might take offense to
the content of the speech is not sufficient justification for prohibiting it.” Id. at 930 n.7 (citing
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 215 (3rd Cir. 2001) (Alito J.)). Therefore, the
Third Circuit held that the school violated the student’s First Amendment rights because the fake
profile did not create “a substantial disruption of or material interference with the school.” Id. at
931.
Viewed in this context, Ms. Bouck’s response—on its own—would not support a rational
juror in finding that Braeden’s comments caused a material and substantial interference with
appropriate school discipline. Ms. Bouck’s response is analogous to that of the Principal in J.S.,
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who was “angry,” “upset,” and “humiliat[ed]” by the out-of-school speech of his students. Id. at
922, 929. Without more, Ms. Bouck’s response is insufficient to constitute a material and
substantial interference with appropriate discipline at the school. See LaVine v. Blaine Sch. Dist.,
257 F.3d 981, 989 (9th Cir. 2001) (holding that the decision to discipline speech must be
supported by the existence of specific facts that could reasonably lead school officials to forecast
disruption); Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 530 (9th Cir. 1992) (denying
argument that certain speech is inherently disruptive and holding instead that finding of
substantial and material interference under Tinker must be based on established facts). In
Braeden’s case, there is no more. The comments did not cause a widespread whispering
campaign at school or anywhere else. No students missed class and no CMS employees,
including Ms. Bouck, missed work. Although Ms. Bouck initially protested having Braeden back
in her class, she accepted the school’s decision for him to return and did not discuss the
comments with either Braeden or with any other students or teachers at CMS. When Braeden
returned from suspension, there were no further incidents and no discussions concerning the
Facebook comments.
Perhaps most importantly, the school did not take any actions upon which a rational juror
could find that it reasonably foresaw a threat to appropriate school discipline. Upon receiving the
printout of Braeden’s comments, neither Principal Powell nor Superintendent Johnson ever asked
Braeden or his parents if he had access to guns, contacted the police, had Braeden evaluated by a
mental health professional, discussed the comments with any of Braeden’s other teachers, or
investigated whether Braeden made similar, subsequent comments. Instead, Principal Powell
simply required Braeden to sit in a school office near the teachers’ mailboxes for three-and-ahalf days. Without taking some sort of action that would indicate it took the comments seriously,
the school can not turn around and argue that Braeden’s comments presented a material and
substantial interference with school discipline.
CONCLUSION
Upon review of both the F&R and CSD’s subsequent objections, I ADOPT the F&R as
my own opinion. Accordingly, I DENY CSD’s Motion for Summary Judgment [10] against
Braeden’s First Claim and GRANT it against Braeden’s Second Claim. I GRANT Braeden’s
Cross Motion for Summary Judgment [12] on his First Claim and DENY it on his Second Claim.
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CSD’s conduct and policies violated Braeden’s First Amendment rights to free speech. CSD
must remove Braeden’s suspension from his school records and compensate Braeden for his
reasonable attorney fees, costs and disbursements pursuant to 42 U.S.C. § 1988.
IT IS SO ORDERED.
DATED this __17th__ day of April, 2015.
/s/ Michael W. Mosman
MICHAEL W. MOSMAN
United States District Judge
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