Cole v. Buchanan County School Board

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-1105

EARL F. COLE,

Plaintiff - Appellee,

v.

BUCHANAN COUNTY SCHOOL BOARD; STEVE HAMRO, III, Individually

and in his official capacity as Chairman and member of the

Buchanan County School Board; CLARENCE BROWN, JR.,

Individually and in his official capacity as a member of the

Buchanan County School Board; BILL CRIGGER, II, Individually

and in his official capacity as a member of the Buchanan

County School Board; RHONDA MCCLANAHAN, Individually and in

her official capacity as a member of the Buchanan County

School Board,

Defendants - Appellants.

Appeal from the United States District Court for the Western

District of Virginia, at Abingdon. James P. Jones, Chief

District Judge. (1:07-cv-00001-jpj-pms)

Argued: March 25, 2009 Decided: May 14, 2009

Before DUNCAN, Circuit Judge, Robert J. CONRAD, Jr., Chief

United States District Judge for the Western District of North

Carolina, sitting by designation, and Thomas D. SCHROEDER,

United States District Judge for the Middle District of North

Carolina, sitting by designation.

Reversed and remanded by unpublished opinion. Judge Duncan

wrote the opinion, in which Judge Conrad and Judge Schroeder

joined.

ARGUED: Jim H. Guynn, Jr., GUYNN, MEMMER & DILLON, PC, Salem,

Virginia, for Appellants. Michael Allen Bragg, Abingdon,

Virginia, for Appellee. ON BRIEF: Elizabeth K. Dillon, GUYNN,

MEMMER & DILLON, PC, Salem, Virginia, for Appellants.

Unpublished opinions are not binding precedent in this circuit.

2

DUNCAN, Circuit Judge:

In October 2006, the Buchanan County School Board (“Board”)

voted to ban Earl F. Cole, a reporter, from Buchanan County

school property with certain exceptions. Cole brought a claim

under 42 U.S.C. § 1983 against the Board and four of its

individual members, alleging retaliation for the exercise of his

First Amendment rights. The individual Board members moved to

dismiss based on qualified immunity. 1 The district court denied

their motion. Because we hold that Cole’s rights were not

clearly established, we reverse.

I.

According to undisputed facts on the record, several

incidents preceded the Board’s decision to ban Cole from

Buchanan County school property:

• In 2003, Cole entered an elementary school building and

took photos during the school day without reporting to

the principal’s office. Cole later claimed that he was

on his way to sign in. J.A. 65-66; 91.

• On the same visit, Cole interviewed one or more students

in the school building during school hours. J.A. 65-66;

1

The Board itself cannot claim qualified immunity.

3

91. The assistant principal reported both of these

incidents to the school administration.

• On October 2, 2006, the principal of another elementary

school, Melanie Hibbitts, observed Cole, who had not

signed in, 2 standing among the trees in front of the

school during school hours. When questioned by Ms.

Hibbitts, Cole claimed he was there to photograph the

fall decorations. Several parents called the school to

voice their concern about seeing Cole on the school

2

The parties dispute whether the Board’s visitor policy

requires an individual to sign in when on school grounds, but

not entering school buildings. The official visitor policy of

the Buchanan County School Board, policy KK, provides:

“Visitors are welcome in the schools. They must report to the

administrative office for a pass. Unauthorized persons . . .

will be requested to leave school grounds by the building

administrator.” J.A. 118. Superintendent Justus stated that

the policy applied to all school property (including grounds).

The Board did allow community use of the track, and, apparently

once school officials came to recognize parents, these

individuals did not have to sign in to use it. J.A. 123.

Signs at the schools announce the school visitor policies.

These signs are posted at or near the school entrances. The

notice at one school states: “All visitors must report to the

school office upon entering the building.” J.A. 90

(capitalization omitted). At another school, entrance to the

building can only be gained through the use of an intercom, and

the sign inside the entrance states: “All visitors must report

to the office.” J.A. 90 (capitalization omitted). Cole stated

that he did not think that the Board required him to sign in if

he was on school grounds but not entering school buildings.

J.A. 90; see also J.A. 92. For reasons we subsequently explain,

this dispute does not affect our analysis. See infra note 6 and

accompanying text.

4

grounds with a camera when their children were being

dropped off. Ms. Hibbitts made Superintendent Justus

aware of the incident. J.A. 73-74.

• Later that same month, on October 13, 2006, a teacher saw

Cole in the school’s parking lot. When Ms. Hibbitts went

out and questioned Cole, Cole claimed that he was there

to re-take pictures of the fall decorations because the

previous ones had not turned out. He had not signed in.

He did not take any pictures of the decorations while Ms.

Hibbitts was there. Parents again expressed concern

about Cole’s presence on school grounds. And Ms.

Hibbitts again advised school administration of the

incident. J.A. 74.

• On October 20, 2006, Cole published an article

questioning why a Board member sent his child to a school

outside the district he represented. The article

included a photograph of the Board member dropping his

child off at the school in question. J.A. 93. Cole had

previously published other reports and opinions critical

of the Board. J.A. 11.

• At least one Board member was aware that Cole had

previously pleaded guilty to assault and battery. J.A.

71.

5

At its regularly scheduled meeting on October 23, 2006, the

Board passed a resolution banning Cole from all Buchanan County

school property. At a second meeting, on October 31, 2006, the

resolution was amended. The amended resolution stated that Cole

has been observed on school property on multiple

occasions hiding around trees and/or bushes either

loitering and/or taking photographs and has repeatedly

ignored posted signs informing all visitors that they

must report to the office upon arrival; and . . . many

parents and teachers have expressed concern about Mr.

Cole’s actions as aforesaid, especially when children

are present while school is in session.

J.A. 27. In the amended resolution, the Board stated that it

sought “to protect the students it serves from the unauthorized

entry of third parties upon its premises and the taking of

photographs without their or their parent(s)’ permission.” J.A.

28. The Board resolved that Cole would be banned from school

property “during operational hours while school is in session

and students are present, except upon express written invitation

or to attend a public board meeting or to exercise his right to

vote.” 3 Id.

Cole sued the Board and four of its members under 42 U.S.C.

§ 1983, alleging that the Board’s ban was actually retaliation

against him for exercising his First Amendment right to publish

3

Cole addressed the Board at this meeting regarding the

resolution. After Cole’s comments, the Board adopted the

amended resolution.

6

critical articles, including an article that questioned the

decision of a Board member to send his child to an out-of-

district school. The individual Board members moved to dismiss

on summary judgment based on qualified immunity. The district

court denied the motion, holding that the Board members were not

protected by qualified immunity because Cole had established

that the Board’s actions violated Cole’s First Amendment rights

and that the rights infringed upon were clearly established.

The Board members timely appealed.

II.

We review de novo a denial of a motion for summary judgment

based on qualified immunity. Pritchett v. Alford, 973 F.2d 307,

313 (4th Cir. 1992). When a government official properly

asserts qualified immunity, we have traditionally engaged in a

two-step, sequential analysis. Under this analysis, we first

look to the facts, viewed in the light most favorable to the

nonmoving party, to determine if the defendant has violated the

constitutional rights of the plaintiff (the “constitutional

prong” of the qualified immunity analysis). Mazuz v. Maryland,

442 F.3d 217, 225 (4th Cir. 2006). If we determine that a

constitutional right has been violated, only then do we assess

whether the right was “clearly established” under existing law

7

(the “clearly established prong” of the qualified immunity

analysis). Id.

The Supreme Court has recently abandoned the requirement

that courts adhere to this rigid two-tiered approach. Pearson

v. Callahan, 129 S. Ct. 808, 812 (2009). The Supreme Court’s

decision in Pearson allows courts to grant qualified immunity

without first deciding whether a violation occurred so long as

the right claimed to be violated was not clearly established.

Id. We find such analytic flexibility to be particularly

appropriate here and focus our consideration on the clearly

established prong. 4

4

We note that the district court did not have the advantage

of the Supreme Court’s decision in Pearson when it engaged in

the traditional two-step analysis. Still, we nevertheless are

skeptical that Cole’s First Amendment rights were in fact

chilled, as required to establish a First Amendment retaliation

claim. The following facts weigh against finding such chilling:

(1) Cole owned the newspaper he wrote for and acknowledged that

he could have assigned other reporters to cover stories

requiring entry onto school property; (2) Cole remained free,

consistent with the Board’s prohibition, to watch, or take

photographs, from the public spaces outside the school grounds;

(3) Cole was in no way inhibited by the prohibition from

interviewing individuals associated with the school off school

property or when school was not in session; and (4) reporters in

the “rough and tumble” political arena do not necessarily have a

remedy at law when government officials are unwilling to confer

information, see Baltimore Sun v. Ehrlich, 437 F.3d 410, 419

(4th Cir. 2006). As our decision is based on the fact that the

contours of Cole’s right were not clearly established, we need

not definitively resolve this issue of whether his First

Amendment rights were chilled.

8

Generally, government officials performing discretionary

functions 5 are granted qualified immunity and are “shielded from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The right that

an official is alleged to have violated must be “clearly

established” not merely as a general proposition (in the way,

say, the right to due process is clearly established), but “in a

more particularized, and hence more relevant, sense: The

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987); see also Saucier v. Katz, 533 U.S. 194, 202 (2001)

(rev’d in part on other grounds); Cloaninger ex rel. Estate of

Cloaninger v. McDevitt, 555 F.3d 324, 331 (4th Cir. 2009).

Stating the right in question at too broad a level of generality

would destroy the balance that Supreme Court case law has sought

to establish “between the interests in vindication of citizens’

constitutional rights and . . . public officials’ effective

performance of their duties by making it impossible for

officials reasonably to anticipate when their conduct may give

5

Here, it is uncontested that the Board, in adopting the

resolution banning Cole from school property, was engaged in

such a discretionary function.

9

rise to liability for damages.” Anderson, 483 U.S. at 639

(citations and quotations omitted).

The “clearly established” prong of the qualified immunity

analysis turns on “the objective legal reasonableness of the

action, assessed in light of the legal rules that were clearly

established at the time it was taken.” Wilson v. Layne, 526

U.S. 603, 614 (1999) (quotations and citations omitted). “[I]n

the light of pre-existing law, the unlawfulness must be

apparent.” Anderson, 483 U.S. at 640. A defense of qualified

immunity, therefore, protects “all but the plainly incompetent

or those who knowingly violate the law.” Waterman v. Batton,

393 F.3d 471, 476 (4th Cir. 2005) (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)).

Having outlined the relevant portion of the qualified

immunity analysis, we now consider the state of the law

regarding the authority of school boards to control access to

school grounds. Such an analysis is necessary to determine the

objective reasonableness of the Board’s conduct. Virginia law

vests title to school property in the school board. Va. Code

Ann. § 22.1-125. It further provides that, beyond a school’s

educational mission, the school board is authorized to designate

the uses to which school property may be put. See id. §§ 22.1-

131 & 22.1-132. Virginia law specifically authorizes a school

board to restrict access to school property, providing in part

10

that “[i]t shall be unlawful for any person . . . to enter upon

or remain upon any . . . school property in violation of (i) any

direction to vacate the property by a person authorized to give

such direction or (ii) any posted notice which contains such

information, posted at a place where it reasonably may be seen.”

Va. Code Ann. § 18.2-128. Additionally, Virginia’s general

trespass statute applies to school property. See Pleasants v.

Commonwealth of Va., 203 S.E.2d 114, 117 (Va. 1974) (applying

the predecessor general trespass statute to school property).

This statute provides in part that “[i]f any person without

authority of law goes upon or remains upon the lands, buildings

or premises of another, or any portion or area thereof, [i]

after having been forbidden to do so, either orally or in

writing, by the owner, lessee, custodian or other person

lawfully in charge thereof, or [ii] after having been forbidden

to do so by a sign or signs posted by such persons, . . . he

shall be guilty of a Class 1 misdemeanor.” 6 Va. Code Ann. §

6

Both Va. Code Ann. § 18.2-128 and Va. Code Ann. § 18.2-119

frame the school board’s authority in the disjunctive (i.e., the

authority can be exercised through either direct communication

or the posting of signs). This phrasing renders any

discrepancies or disagreements about the posted notices and the

extent of school property they covered not germane to our

analysis of the Board’s authority to issue a directive to Cole

not to enter the school grounds.

11

18.2-119. Because title is vested in the school board, the

board is the “owner” or “custodian” of school property.

A school board also has inherent authority to restrict

access to the property that it controls. The Supreme Court,

citing a long line of precedent, has held that “[t]here is no

question that the District, like the private owner of property,

may legally preserve the property under its control for the use

to which it is dedicated.” 7 Lamb’s Chapel v. Ctr. Moriches Union

Free Sch. Dist., 508 U.S. 384, 390-91, (1993). Members of the

public do not have any constitutional right of access to public

schools, Vukadinovich v. Bd. of Sch. Trs. of Mich. City Area

Schs., 978 F.2d 403, 409 (7th Cir. 1992), and public ownership

does not automatically open up school grounds to the public, see

United States v. Kokinda, 497 U.S. 720, 725 (1990); Embry v.

Lewis, 215 F.3d 884, 888 (8th Cir. 2000). School officials have

broad authority and responsibility for assuring that individuals

7

Since Cole is not alleging direct infringement of his First

Amendment rights by the Board’s ban (i.e., he was not seeking

access to the school grounds in order to engage in protected

speech activity), we need not enter into a forum analysis. We

note, however, that public schools are not deemed public forums

simply because they are owned by the government. See United

States v. Kokinda, 497 U.S. 720, 725 (1990). For school

facilities to become public forums, school authorities must have

opened those facilities for “indiscriminate use by the general

public.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267

(1988). With the possible exception of the school track, there

is no evidence here that school officials opened up the school

grounds for indiscriminate use by the general public.

12

conduct themselves appropriately while on school grounds.

Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999). A school

board’s authority encompasses the authority to remove or bar

from entry an individual who threatens the safety of students or

staff, or who disrupts the orderliness of the educational

process. See Carey v. Brown, 447 U.S. 455, 470-71, (1980)

(holding that the Constitution does not leave state officials

powerless to prevent conduct that disturbs the tranquility of

schools); Goss v. Lopez, 419 U.S. 565, 582 (1975) (holding that

a school official’s determination of the existence of an ongoing

threat of disruption of the academic process can justify

immediately removing a person from school property); Hall v. Bd.

of Sch. Comm’rs of Mobile County, Ala., 681 F.2d 965, 966 (5th

Cir. 1982) (holding that, in considering visitation policies,

the court shared “the school officials’ basic concern that

school administrators must have wide latitude in formulating and

administering rules and regulations necessary to promote safety,

discipline, order and the appropriate atmosphere for the

educational goals of the school”). In carrying out its mandate

to promote safety and order, therefore, a school board has broad

authority to restrict access to school grounds.

13

III.

Having considered the applicable legal framework, we turn

to the district court’s decision here. The district court

stated that, under the clearly established prong of the

qualified immunity analysis, “the appropriate inquiry is whether

a reasonable school board member would have understood that it

was unlawful to retaliate against a critical member of the local

press by banning him from school property otherwise open to the

public.” J.A. 104. The district court concluded that the

conduct of the Board violated Cole’s clearly established

constitutional right when articulated in that fashion.

However, the district court improperly framed the issue.

The appropriate inquiry here is whether a reasonable Board

member could have believed that banning Cole from the Buchanan

County school grounds was lawful, in light of clearly

established law and the information Board members possessed.

Cf. Anderson, 483 U.S. at 641 (“The relevant question in this

case, for example, is the objective (albeit fact-specific)

question whether a reasonable officer could have believed

Anderson’s warrantless search to be lawful, in light of clearly

established law and the information the searching officers

possessed.”).

Statutory law and judicial precedent compel the conclusion

that the Board has wide latitude in making determinations about

14

access to school grounds. See Va. Code Ann. § 18.2-128; Carey,

447 U.S. at 470-71; Lovern, 190 F.3d at 655. Such broad

discretion is necessary for the Board to carry out its mandate

to protect students and ensure the proper functioning of the

educational system. See Lovern, 190 F.3d at 655; Hall, 681 F.2d

at 966. The Board, at the time it issued the resolution banning

Cole from school grounds, possessed the following information:

(1) parents had expressed concerns on multiple occasions about

Cole’s presence on the school grounds with a camera while their

children were present; (2) Cole had entered a school building

during school hours while students were present and had taken

photographs; (3) Cole had interviewed one or more students in

school while school was in session without permission; (4) Cole

had written an article that was arguably critical of a Board

member as well as other critical pieces; (5) Cole’s presence on

the school grounds raised concerns among school administrators,

and at least twice the principal of one school had questioned

him about his presence on the grounds; and (6) at least one

Board member was aware of Cole’s past conviction for assault and

battery. Given the breadth of the Board’s authority to control

access to school grounds and the factual information the Board

possessed at the time it passed the resolution at issue, a

reasonable Board member may well have believed it was his or her

duty to ban Cole from school grounds in order to protect both

15

the safety of the students and the integrity of the educational

process. Under the circumstances here, then, a reasonable Board

member certainly could have believed that banning Cole from

school property was lawful.

IV.

Because the conduct complained of did not violate a clearly

established right, we reverse the district court’s judgment and

remand for dismissal of the action against the individual Board

members.

REVERSED AND REMANDED

16