Filed: May 14, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1105 EARL F. COLE, Plaintiff - Appellee, v. BUCHANAN COUNTY SCHOOL BOARD; STEVE HAMRO, III,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 MCCLA
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1105 EARL F. COLE, Plaintiff - Appellee, v. BUCHANAN COUNTY SCHOOL BOARD; STEVE HAMRO, III,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 MCCLAN..
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UNPUBLISHED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Reversed and remanded by unpublished opinion.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
