UNPUBLISHED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Reversed and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit. 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-ofdistrict 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 

functions5 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 
16 

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