All posts by D King


Braeden Burge was bummed.  It was bad enough that he got a C in Health class. On top of that, his mom grounded him for part of the summer. Apparently, Mom did not view a C in Health as anywhere close to acceptable.

What’s an 8th grader to do?  Go to Facebook, of course!  Braeden vented a series of comments, starting with the suggestion that he wanted to “start a petition to get Mrs. Bouck fired, she’s the worst teacher ever.”  Mrs. Bouck would be the Health teacher.  One of Braeden’s friends asked (via Facebook post) what Mrs. Bouck had done, and Braden responded with “She’s just a bitch haha.”  The friend’s retort to this was: “XD HAHAHAHA!!”  And this prompted the post that got Braeden in trouble:

“Ya haha she needs to be shot.”

Braeden did all this from home (grounded, you know) on a day when school was not in session. He did not send it to Mrs. Bouck, nor was she one of his Facebook friends.  In fact, it appears that no teacher or administrator at the school knew about the Facebook posts until a full six weeks later. That’s when the parent of another student anonymously placed a printout of the posting in the school mailbox of the principal.

Now, what would you do?  Imagine that this “she needs to be shot” comment shows up in your school mailbox, but you note that it was written six weeks earlier, and Mrs. Bouck appears to be in good health. What would you do?

Principal Kara Powell called Braeden in for a chat.  The young man was respectful and compliant, quietly accepting the 3.5 day in-school suspension the principal ordered.  The principal then called the mother. The mother objected to the school’s jurisdiction over this incident, noting that it all took place at home.

The case ended up in federal court because the parent alleged that the school’s disciplinary penalty infringed on the student’s right of free speech. After all, this all took place off campus, and there was nothing even close to a major or substantial disruption of school. But the school district’s attorneys argued that “she needs to be shot” was a threat of violence. Threats of violence are not constitutionally protected.

The court ruled in favor of the student. The big problem for the school district was that it did not treat the “threat” like a real threat.  The court enumerated five things the school did not do:

*ask the parents if the boy had access to guns;
*contact the police;
*have Braeden evaluated by a mental health professional;
*discuss the comments with other teachers who knew Braeden; and
*investigate whether he made similar, subsequent comments.

The reasoning seemed to be that if the school thought this Facebook comment was a serious threat, it would have done some or all of these things.  Key Quote:

“Instead, Principal Powell simply required Braeden to sit in a school office near the teachers’ mailboxes for three-and-a-half 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.”

Once again, we see that being rude toward a teacher, when done off campus, does not usually justify disciplinary action. If this had happened at school, the use of the word “bitch” alone would have been sufficient to justify a short stint in ISS. But since it happened away from campus, the school was left to try to show that it was a threat of violence.  Since the school did not treat it like a real threat, the court was not convinced.

The case is Burge v. Colton School District 53, decided by the federal district court in Oregon on April 17, 2015.





De’Jon Pierce was a junior at Hearne High School when he died in March, 2012.  The student crashed an ATV (All-Terrain Vehicle) into a tree.  What did this have to do with the school?  Well, the ATV was owned by the school’s Ag Teacher, and the student was riding the vehicle with his teacher’s permission. In fact, the teacher had taken De’Jon and some other students out of class to work on his own farm.  The suit alleged that this was done regularly, and with the principal’s permission. This work was considered part of the students’ coursework.

On the date of his death, De’Jon drove the ATV to his teacher’s father’s ranch about a mile away to deliver a tool.  Another student rode with him on the ATV. On the way back they crashed into the tree.  The other student survived. De’Jon did not.

I’ll bet if you ran that situation by most educators in Texas, they would guess that somebody would be held legally liable for the student’s death. Maybe the school district. Maybe the teacher.  Maybe the principal.  But in fact, the 5th Circuit held that neither the school, nor the principal, nor the teacher was legally responsible for this tragic accident.

The District
The school district asserted sovereign immunity. School districts in Texas are immune from liability for personal injuries, including death, unless the injury arose from the negligent use or operation of a motor vehicle by a school officer or employee acting within the scope of employment.  Here, the ATV was not operated or controlled by a school employee.   The court thus concluded that “Hearne ISD is immune from tort liability under the Texas Tort Claims Act.”

The Teacher
The parents argued that the teacher removed the boy from school without their permission, instructed him to ride double on an ATV despite not having a drivers’ license, did not properly instruct him on how to operate the ATV, did not provide safety gear, and did not maintain the ATV properly.  The court pointed out that the teacher “may have been negligent.” But that was simply not enough to impose liability under federal law, which was the basis for the suit against the teacher.  As a general rule, educators are liable under federal law for wrongful acts performed intentionally.  The court pointed out that “there is nothing to suggest that [the teacher] intended to harm De’Jon at all or even that he foresaw harm and willfully disregarded it.”  This was a tragic accident, not a deliberate act.

The Principal
The court applied much the same analysis to the claim against the principal. The claim was that the principal was negligent in supervising the teacher, and in allowing him to take kids out of school to work on his farm without parent permission.  Negligent?  Maybe. But nowhere close to deliberate indifference to a known right that could lead to liability under federal law.

The court did not conclude that anyone was negligent here, or exercised poor judgment.   It just held that negligence and/or poor judgment would not have been enough to impose liability.  Suppose, though, that the superintendent concluded that the teacher and/or principal made some serious errors in judgment here. Could the superintendent take corrective action?  Of course.  When a case goes to court, it is all about the standards for legal liability.  Standards of good judgment, however, can, and should, be imposed by school administrators.

The case is Pierce v. Hearne ISD, decided by the 5th Circuit on January 7, 2015.  We found it at 2015 WL 81995.