PENDER COUNTY — A recent federal court ruling made it more difficult to hold a now-retired Pender principal responsible for a student’s assault on a teacher. Former eighth-grade teacher Kimberly Burns-Fisher sued Anna Romero-Lehrer, along with the superintendent and school board, for damages after being injured by a student while teaching.
While a district court denied former Topsail Middle School principal Romero-Lehrer’s motion to dismiss the case, the U.S. Court of Appeals Fourth Circuit ruled in her favor Jan. 13.
READ MORE: Pender teacher sues district for injuries from known-violent student, awaits appeal
A pair of lawsuits, filed on both the state and federal level, are being pursued by former eighth-grade teacher Kimberly Burns-Fisher, who was attacked by a student in April 2018. Three years later she filed the suits alleging the principal should have done more to protect her.
However, the federal courts are upholding a “qualified immunity” defense and will clear former Topsail Middle School principal Anna Romero-Lehrer of responsibility for damages. Though a district court initially denied Romero-Lehrer’s motion to dismiss, the appellate court overturned that decision Jan. 13.
On Dec. 6, U.S. Court of Appeals judges Stephanie Thacker, Julius Richardson and Paul Niemeyer heard arguments for the case in Richmond, Virginia. Bruce Berger, with the Raleigh firm Boyle and Knott, represented Burns-Fisher.
Norwood Blanchard, of Wilmington firm Crossley, McIntosh, Collier, Hanley and Edes, represented Romero-Lehrer.
Judge Thacker, appointed to her seat by former President Barack Obama in 2011, found there was not enough evidence showing Romero-Lehrer violated the teacher’s constitutional rights.
The plaintiff has 15 days to ask for a rehearing, which would be sent to the Supreme Court of the United States. Otherwise, the court of appeals will send its official dismissed verdict to the district judge to continue with proceedings.
Port City Daily reached out to Burns-Fisher’s attorneys to find out if she would appeal; no one responded by press.
The courts say Romero-Lehrer’s action or inaction are not correlated to the 15-year-old student, referred to as “TB” in the case, attacking Burns-Fisher. TB, who is on the autism spectrum, requires an individualized education program (IEP) for language arts and math, despite teachers’ alleged request to keep him out of mainstream classes, according to Burns-Fisher’s initial complaint.
The lawsuit also indicates TB had a known, documented history of violence and attacks on other teachers, administrators and students over the years.
Burns-Fisher issued a complaint April 9, 2021 against Romero-Lehrer seeking personal liability. The argument alleges the principal “knew or should have known that her actions or inactions could have led to a violation” of Burns-Fisher’s constitutional rights.
A “mainstream” teacher — not certified to teach special education — Burns-Fisher was leading a language arts class that included 10 students with individualized education plans. Under Pender Board of Education policy, the circumstance would have warranted two teachers in the classroom, including one trained for exceptional children. The day Burns-Fisher was attacked during class, she was alone — a fact she claims Romero-Lehrer knew about, yet required her to proceed anyway.
In June 2021, Romero-Lehrer submitted a motion to dismiss, denied by the district court Dec. 22, 2021. In Judge Thacker’s opinion released last week, he states the district court did not provide any legal basis for denying the motion to dismiss.
Romero-Lehrer’s defense was for “qualified immunity,” meaning if the principal was not a government official, there would be no claims to sue her to begin with. The argument typically applies to law enforcement, when guidelines are murky about what officers can and cannot do.
For example, when an officer is placed in a dangerous situation and has to react quickly, such as deciding whether to pull a gun, the defense is used in the officer’s favor as a factor of the job.
“The defense of qualified immunity affords public officials broad protections from the rigors, intrusion, and expense associated with civil lawsuits alleging violations of civil rights,” according to court documents.
Even though the middle school teacher claimed the principal and district established a “state-created danger,” the courts disagree. The federal ruling stated the argument only applies for acts that create or increase a risk of danger that directly resulted in the victim’s injury.
“It is not enough to reframe a failure to protect against a danger into an affirmative act,” according to documents, referencing the plaintiff’s claims that the principal did not provide a safe environment. Essentially, the courts said the principal’s former knowledge of TB’s violence and the schedule of other teachers does not mean she created an unsafe place.
Though the case against Romero-Lehrer, who has since retired, was dropped by the federal court, it still stands at the state level. The lawsuit is pending in the Superior Court of Pender County and discovery is already ongoing.
Burns-Fisher also sued former superintendent Steven Hill, professionally and as an individual; the latter was voluntarily dismissed. The same case is filed against the Pender County Board of Education.
However, no action has been taken on the cases against Hill and the school board. A motion to stay for all defendants was granted by Judge Hames Dever in March 2022 until a decision was made in appellate court.
Pender County Schools attorney Brandon McPherson is representing Hill and the board of education.
The complaint against the two parties claims: “Defendants, by their affirmative actions, created and contributed to the danger that led to plaintiff’s injuries or rendered plaintiff more vulnerable to the danger created.”
Pender County Schools confirmed its in receipt of the Fourth Circuit’s opinion and will be reviewing next steps in the litigation surrounding Hill and the board of education.
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