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Burge v. Colton School District 53

United States District Court, D. Oregon, Portland Division

April 17, 2015

BRAEDEN BURGE by and through his guardian at litem KELLY BURGE, Plaintiff,

For Braeden Burge, by and through his Guardian Ad Litem, Kelly Burge, Plaintiff: Cozette T. Tran-Caffee, William T. Patton, LEAD ATTORNEYS, Lane Powell, PC, Portland, OR.

For Colton School District 53, Defendant: Blake H. Fry, LEAD ATTORNEY, Mersereau Shannon LLP, Portland, OR; Peter R. Mersereau, Mersereau & Shannon, LLP, Portland, OR.


MICHAEL W. MOSMAN, United States District Judge.

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-of-school 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, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (citations omitted).


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 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.


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, 106 S.Ct. 466, 88 L.Ed.2d 435 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On a motion for summary judgment, the court " draws all justifiable inferences in favor of the non-moving party." Fresno Motors, LLC ...

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