Oregon student wins free-speech lawsuit against school, overturning discipline for critical Facebook posts

OREGON — An Oregon middle school student’s free-speech rights were violated when he was suspended for calling a teacher a “bitch” who “needs to be shot” on Facebook, a federal judge has ruled.

The student’s Facebook posts, U.S. District Judge Michael Mosman ruled, did not cause “a widespread whispering campaign at school or anywhere else.” No students missed class because of the comments. The posts did not prompt any school employees to miss work — including the teacher named in the comments, who argued she was “scared,” “nervous” and “upset.”

In 2012, Braeden Burge, who was an eighth-grader at Colton Middle School, posted a series of comments to his Facebook page after learning his health teacher, Veronica Bouck, had given him a “C” in her class.

In the posts, Burge said he wanted to “start a petition to get mrs. Bouck fired, she’s the worst teacher ever.” When a Facebook friend asked what the teacher did, Burge said “she’s just a bitch haha” and “she needs to be shot.”

Burge used a personal computer to post the comments, according to court documents, and school was not in session that day. Only Burge’s Facebook friends — which did not include Bouck or any other Colton School District employee — were able to see his comments online.

Within 24 hours, Burge’s mother instructed him to delete the posts. But six weeks later, another student’s parent put a printout of the Facebook posts in Principal Kara Powell’s school mailbox. After calling Burge into her office, Powell gave him a three-and-one-half day in-school suspension.

According to the ruling, Burge did not intend to threaten the teacher and did not “seriously believe” she should be shot. Instead, Mosman said in the ruling, Burge’s only purpose in posting these comments was to elicit a response from his friends “just to see what they thought about it.”

In reaching a ruling on April 17, Mosman rejected the school district’s claim that Burge’s posts “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Under the 1969 Supreme Court ruling in Tinker v. Des Moines Independent Community School District, a student can be punished for speech that causes a substantial disruption at school.

Although the U.S. Supreme Court has never applied the Tinker standard to off-campus speech, the 9th Circuit Court of Appeals — which includes Oregon — has. In 2013, the court ruled that schools may punish students for off-campus speech “when faced with an identifiable threat of school violence.”

In that case, a Nevada high school student was expelled for instant messages he sent to friends from home, where he bragged about his collection of weapons, threatened to shoot specific classmates and said he would “take out” other people in a school shooting on a specific date.

But in Burge’s case, neither the principal nor the superintendent investigated whether he had access to guns, according to the ruling. They also never contacted police or investigated whether Burge continued to make similar threatening posts.

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

Contact SPLC staff writer Mark Keierleber by email or at (202) 833-4614.

Correction (5/8/2015 1:10 p.m.): An earlier version of this article misstated the year the Supreme Court ruled in Tinker v. Des Moines Independent Community School District, which occurred in 1969. The article has been updated.

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