Appeals Court rules for principal in suit over Pender County teacher assault | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The 4th U.S. Circuit Court of Appeals has ruled in favor of a Pender County school principal sued after a student injured a teacher at the school. Appellate judges agreed the principal had legal immunity in the case.

    The decision announced Friday reversed a trial court ruling.

    "Kimberly Burns-Fisher ("Appellee") was a middle school teacher in Pender County ... when she was physically attacked by a special education student in her language arts class," wrote Judge Stephanie Thacker. "There is no dispute that the student was known to have been violent on prior occasions. At the time of the incident involving Appellee, Anna Maria Romero-Lehrer ("Appellant") was the principal of the school where the attack occurred."

    Burns-Fisher sued Romero-Lehrer, along with the Pender County school board and the school superintendent. The principal sought to have the case against her dismissed. The trial court rejected the principal's request.

    "Because Appellee failed to sufficiently allege that Appellant violated her constitutional rights, we hold that Appellant is entitled to qualified immunity," Thacker wrote. "Therefore, we reverse and remand for further proceedings consistent with this opinion."

    A 15-year-old student identified as TB, "at the mild end of the autism spectrum," hit Burns-Fisher in the face with his bookbag during a class in 2018, according to the 4th Circuit opinion. Burns-Fisher fell, attempted to get back up, but then was knocked back in her chair. She eventually ended up on the floor, where the student kicked her in the head and back.

    "As a result of this incident, Appellee suffered multiple injuries which required medical treatment, including surgery, and kept her from returning to work as of the date the complaint was filed."

    The suit filed in 2021 contended that Pender County Board of Education policy required a second teacher to be in the class because of a large number of special-education students. "Appellee maintains that Appellant frequently condoned the teaching of inclusion classes without the required second teacher present," Thacker wrote.

    On the day of the attack, "Appellee alleges that Appellant knew that she was the only teacher in her classroom but nevertheless did not send a second teacher to Appellee's class."

    Burns-Fisher argued that Romero-Lehrer "violated her 'constitutional liberty interest in bodily integrity,' by 'establishing a state-created danger,'" Thacker wrote.

    "Appellee's state-created danger claim centers on a series of alleged choices or inactions by Appellant which are far removed from TB's physical attack on Appellee," the judge wrote. "Specifically, Appellee attempts to recast Appellant's knowledge of TB's prior acts of violence and creation of the staffing schedule which required Appellant to teach TB on the day of the incident - without a second teacher in her classroom - as affirmative acts."

    "But Appellee fails to point to any action by Appellant which created the danger that resulted in Appellee's injuries," Thacker added. "At most, Appellee points to acts or omissions by Appellant that suggest Appellant knew that TB posed a risk to Appellee, but nevertheless failed to prevent TB from attacking Appellant."

    The principal's actions were "insufficient to constitute affirmative acts because 'the state must create the direct danger that causes the injury or death,'" Thacker explained.

    "Because the conduct Appellee has identified did not directly cause Appellee's injuries, Appellee did not sufficiently allege that her constitutional rights were violated," the judge concluded.

    Even if Burns-Fisher had presented a strong enough case that her constitutional rights had been violated, appellate judges still would be compelled to rule in the principal's favor. "Appellee has not demonstrated that it was clearly established at the time of the incident that she had a constitutional right to be protected from a student who was known to have a violent history," Thacker wrote.

    "Because it was not clearly established at the time of the incident that a defendant's failure to act gives rise to a state-created danger claim, we conclude that Appellant is entitled to qualified immunity," the judge wrote.

    Judges Paul Niemeyer and Julius Richardson joined Thacker's opinion.

    Even with qualified immunity for the principal, the teacher can pursue her legal claims against the Pender County school board.
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