PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DECOMA LOVE-LANE, 

Plaintiff-Appellant,

v.

DONALD MARTIN, Individually, and

in his official capacity as  No. 02-1465

Superintendent of the WinstonSalem/Forsyth County Schools;

WINSTON-SALEM/FORSYTH COUNTY

BOARD OF EDUCATION,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of North Carolina, at Durham.

William L. Osteen, District Judge.

(CA-99-735)

Argued: January 24, 2003

Decided: January 22, 2004

Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.

Vacated in part, affirmed in part, and remanded by published opinion.

Judge Michael wrote the opinion, in which Judge Gregory joined.

Judge Wilkinson wrote a separate dissenting opinion. 

COUNSEL

ARGUED: Robert Mauldin Elliot, Fredrick Wellington Evans,

ELLIOT, PISHKO & MORGAN, PA, Winston-Salem, North Caro-
lina, for Appellant. Max Daniel McGinn, BROOKS, PIERCE,

MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro,

North Carolina, for Appellees. ON BRIEF: Natalie Kay Sanders,

BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD,

L.L.P., Greensboro, North Carolina, for Appellees. 

OPINION

MICHAEL, Circuit Judge:

Decoma Love-Lane, an African American, sued the WinstonSalem/Forsyth County, North Carolina, Board of Education (the

Board) and its superintendent, Dr. Donald Martin, in the Middle District of North Carolina, alleging that she was demoted from the position of assistant principal to teacher because she spoke out against

race discrimination (her free speech claims) and because of her race

(her discrimination claims). The district court granted summary judgment to the Board and Martin on all of Love-Lane’s claims, and she

appeals. We conclude that Love-Lane has raised a genuine issue of

material fact as to whether she was demoted in retaliation for her

speech, which would be a violation of the First Amendment. We also

conclude that Martin is not entitled, in his individual capacity, to

qualified immunity on Love-Lane’s First Amendment claim, and we

therefore vacate the grant of summary judgment to Martin individually on that claim. We affirm the grant of summary judgment (1) to

the Board, and to Martin in his official capacity, on Love-Lane’s First

Amendment claim, (2) to both defendants on her federal race discrimination claims, and (3) to both defendants on her free speech and race

discrimination claims asserted under the North Carolina Constitution.

I.

Love-Lane is employed by the Winston-Salem/Forsyth County

Board of Education. She worked for the Board as a high school

teacher from 1974 until 1988, and from 1988 until 1998 she was an

assistant principal at four middle and elementary schools. In her first

three jobs as assistant principal, which spanned seven years (1988-

95), Love-Lane consistently received evaluations of excellent or supe2 LOVE-LANE v. MARTIN
rior in almost all aspects of her performance; she was told that her

strongest skills were in the areas of communication and problem solving. J.A. 2000. Each of the principals for whom she worked in these

years recommended her for promotion. J.A. 1199-2000. 

During the summer of 1995, Superintendent Martin notified LoveLane that she would be assigned the job of assistant principal at

Lewisville Elementary School, where Martin said "an AfricanAmerican presence" was needed. J.A. 1444. Love-Lane expressed

concern to Martin about the assignment because she had heard that

Lewisville’s principal, Brenda Blanchfield, who is white, had difficulty in dealing with African American assistants. Love-Lane also

understood that there were racial tensions at Lewisville because

Blanchfield had been ineffective or insensitive in addressing the problems and concerns of African American teachers, students, and parents. J.A. 362, 366-67, 594, 1164, 1201, 1215. Love-Lane’s

understanding was accurate. According to one African American

teacher, "serious racial tension" developed between the school administration and staff at Lewisville after Blanchfield "took over as principal." J.A. 362. For instance, on one occasion the Lewisville faculty

was discussing time options for a satellite PTA meeting in East Winston, a predominantly African American community served by the

school. When a late afternoon meeting was proposed, several teachers

pointed out that working parents would not be able to attend. Blanchfield responded that "it did not matter what time the meeting was held

since nobody in East Winston works anyway." J.A. 1165, 363. After

certain teachers objected to this comment, Blanchfield apologized. Id.

On another occasion, Blanchfield allegedly used the term "CP time,

or colored people’s time." J.A. 1402. Martin acknowledged that "there

were some problematic situations [at Lewisville] in terms of racial

perceptions," J.A. 76, and that "minority parents perceive Lewisville

and Brenda Blanchfield negatively," J.A. 77. Daisy Chambers, an

assistant superintendent who knew both Blanchfield and Love-Lane,

recommended that Love-Lane not be assigned to Lewisville. Because

Blanchfield and Love-Lane had different approaches to administration, Chambers believed that they would have difficulty "work[ing]

together as a team." J.A. 607. Despite the concerns expressed by

Chambers and Love-Lane, Martin held to his decision, and LoveLane was transferred to Lewisville. Love-Lane accepted the new

assignment, telling Martin that she would do her best to work with

LOVE-LANE v. MARTIN 3
Blanchfield. Love-Lane, however, asked Martin to "monitor the situation," and he promised that he would. J.A. 1201. 

Love-Lane started her job as assistant principal at Lewisville Elementary School in November 1995. The school is located in the suburbs and to a large extent serves middle to upper class white children

from the surrounding area. However, a number of African American

children from poor or working class families in East Winston are

bused to Lewisville. During Love-Lane’s three years at the school,

about sixty-five percent of the students were white and about thirtyfive percent were African American. Love-Lane describes the Lewisville staff as "overwhelmingly white." Out of a staff of approximately

100, the number of African American teachers ranged from two to six

during Love-Lane’s time at the school. J.A. 1201. 

Soon after Love-Lane began working at Lewisville, she discovered

disciplinary practices at the school that placed many African American students at a disadvantage. Her main concern was the "time-out

room," where teachers could send students who were misbehaving.

Love-Lane had several objections to the time-out room. First, a disproportionate number of African American students, particularly African American boys, were sent to the time-out room. Some teachers

called on white girls to escort African American boys to the room, a

practice that was no doubt humiliating to the boys. J.A. 1207. Second,

the time-out room served to relieve individual teachers of responsibility for handling discipline problems in the classroom. A student could

be referred to the room for any infraction without the knowledge or

approval of the principal or assistant principal. In other words, there

were no safeguards to prevent a teacher from making excessive use

of the time-out room. Love-Lane noticed that students were often sent

to the room "for the most minor of infractions." J.A. 1205. At times

there were so many children crowded into the room that there was

"standing room only." J.A. 1220. Third, the students who were sent

to the time-out room were not given adequate instruction. The staff

person who ran the time-out room was not a certified teacher, and she

had no training in how to deal with problem students. The problem

of inadequate instruction was magnified because "many of the same

students [were] referred to the time-out room repeatedly, for long

periods of time by many of the same teachers." J.A. 1207. According

to Love-Lane, the time-out room "denied quality instruction to many

4 LOVE-LANE v. MARTIN
of the children who needed it most — the African-American children

who were being bused from East Winston." J.A. 1207. Love-Lane

was especially concerned about fifth grade students because several

of their teachers were strong advocates of the time-out room and used

it continually. J.A. 1204, 1405. Some fifth graders were sent routinely

to the time-out room at 8:45 a.m., just as classes began for the day.

J.A. 1220. Love-Lane feared that the room was used, especially by

some fifth grade teachers, simply to "warehouse" African American

boys. J.A. 1203, 1204-07, 1212-14. 

Love-Lane’s assessment that the time-out room was being used in

a racially discriminatory way is indicative of larger concerns that she

and others had about race relations at Lewisville. Love-Lane observed

that disciplinary measures in the classrooms "seemed directed toward

the black students for the most part," both in terms of frequency and

severity of punishment. J.A. 1214. Another Lewisville staff member

recounted how one teacher "would have black males sit at desks facing the corner of [the] room with their faces to the wall." J.A. 1227.

What Love-Lane saw as discriminatory discipline extended beyond

the classroom. Once, Love-Lane saw a teaching assistant "with her

foot in a little black boy’s back as he lay on the hall floor crying."

J.A. 1207. On another occasion, Love-Lane had a substantial disagreement with several fifth grade teachers who were excluding a

number of African American and poorer white students from the class

trip to Washington, D.C., and Williamsburg, Virginia. There were no

established criteria for excluding a student, and the teachers were

using minor infractions to justify exclusion. Love-Lane brought the

problem to the attention of Blanchfield, who refused to intervene. As

a result, "approximately full classes of students were left at the

school, most of whom were African-American and poor students."

J.A. 1214. 

Love-Lane also believed that a number of staff members at Lewisville were insensitive to African American culture. J.A. 1202. One

day, for example, an African American girl went home in tears after

her fifth-grade teacher barred her from class "because, in [the teacher’s] terms, the student’s ‘jelly curl or what ya’ll call it, stinks.’" J.A.

1213. See also J.A. 1226. The director of the Board’s AfricanAmerican Infusion Project observed that many teachers at Lewisville

were not receptive to diversity training workshops, and the director

LOVE-LANE v. MARTIN 5
was especially "concerned that Mrs. Blanchfield did not seem to

address the problem of the teachers’ insensitivity or lack of interest"

in this area. J.A. 360. Parents of African American children

expressed similar concerns about "the racial problems at Lewisville,"

J.A. 389, and about "teachers who seemed to have no awareness or

sensitivity to racial issues." J.A. 393. 

Despite her concerns about the time-out room and other disciplinary practices that appeared to be discriminatory, Love-Lane "was

careful not to make any quick judgments" during her first year at

Lewisville (1995-96). J.A. 1203. Instead of "question[ing] how things

were done," she concentrated on "getting acquainted with the staff,

teachers and students," J.A. 1203, and in trying to establish good relationships with her colleagues, J.A. 127. By the end of her first year,

she felt accepted by her Lewisville colleagues, and she received a

superior evaluation from Blanchfield, the principal. 

As her second year (1996-97) at Lewisville got under way, LoveLane felt that she had to discuss with Blanchfield her concerns about

the discriminatory disciplinary practices at Lewisville. Love-Lane

understood her professional charge from Martin to be "raising the

awareness or consciousness of [Lewisville] teachers" about minority

issues, and she understood that she and Blanchfield were to work

together on this goal. J.A. 127. But every time that Love-Lane tried

to discuss her concerns about disciplinary practices, including use of

the time-out room, with Blanchfield, she was either rebuffed or

ignored. J.A. 1206, 1208. After Blanchfield refused to address the

subject of discriminatory discipline, Love-Lane began voicing her

concerns at faculty meetings and at School Improvement Team (SIT)

meetings. J.A. 363-64, 388. The SIT was an advisory group of administrators, teachers, and parents, whose goal was to "make suggestions

designed to improve education at Lewisville for all students." J.A.

387. Love-Lane and Blanchfield both attended SIT meetings. Id. One

parent-member of the SIT said that in these meetings Love-Lane often

raised issues about disciplinary practices that placed African American and poorer students at a disadvantage. According to this parent,

"it would be evident from Ms. Blanchfield’s body language that she

resented Ms. Love-Lane bringing up these issues . . . [though] Ms.

Love-Lane always acted respectfully toward Ms. Blanchfield." J.A.

388. Some of the teachers, especially from the fifth grade, also

6 LOVE-LANE v. MARTIN
resented the fact that Love-Lane was raising questions about disciplinary practices at Lewisville. J.A. 364, 415. After Love-Lane spoke

out at one faculty meeting, a few teachers told Blanchfield that they

were offended by Love-Lane’s disrespectful tone and by her characterization of the teachers’ use of the time-out room as "unprofessional." J.A. 955. Love-Lane denies that she was disrespectful, and a

number of teachers and parents who heard Love-Lane talk about the

disciplinary practices described her tone and manner as professional

and respectful. J.A. 354, 387-88, 394. Nevertheless, as one teacher’s

assistant put it, "[i]t was common knowledge throughout the school

that some of the fifth grade teachers had banded together against Ms.

Love-Lane." J.A. 398. 

During her second year at Lewisville, Love-Lane also expressed

her concerns about race discrimination in discipline directly to Superintendent Martin. J.A. 1208, 1210-11. She told him that "AfricanAmerican parents were not happy with how their children were being

treated at Lewisville." J.A. 1407. According to Love-Lane, "Martin

indicated little concern for the racial issues I was raising; he seemed

more concerned that I not make waves—that I avoid any actions

which might cause conflict." J.A. 1210. Martin said that he discounted Love-Lane’s concerns that minority children at Lewisville

were being "denied equal access to education" because he did not

agree with her assessment of the situation. J.A. 1365. 

At the end of Love-Lane’s second year at Lewisville, she received

her annual evaluation from Blanchfield. Although she received excellent ratings on most of her work, she received for the first time lower

ratings on her communication skills. Blanchfield told Love-Lane that

85 percent of the teachers found her intimidating and that they

objected to her direct style of communication. J.A. 1210. Blanchfield

refused, however, to provide Love-Lane with any details about these

complaints. Id. Blanchfield did tell Love-Lane that she had concerns

about Love-Lane’s inability to accept feedback and her "blatant

actions of disrespect toward" Blanchfield. J.A. 868-69. Blanchfield

recommended that Love-Lane receive only a two-year contract as an

assistant principal. J.A. 869. (Administrators were given contracts of

up to four years.) Blanchfield informed Love-Lane that she had

"many strengths which if coupled with improvements in working relationships and respect for those [Love-Lane is] assigned to work with

LOVE-LANE v. MARTIN 7
would make [her] very effective and efficient in a leadership role." Id.

Blanchfield then advised Martin that she no longer wanted to work

with Love-Lane. Love-Lane, for her part, requested a transfer. J.A.

969, 1211. At the end of this second year Love-Lane again confronted

Martin about "the treatment of African-American children [at Lewisville], particularly with reference to the time-out room." J.A. 1211.

According to Love-Lane, "Martin listened but made no commitment

to take any action." Id. Love-Lane received no response to her transfer request. Id.

On June 11, 1997, as her second year at Lewisville was ending,

Love-Lane was involved in an altercation with a teacher. Each

woman alleged that the other called her names and used profanity.

Blanchfield issued a letter of reprimand to both women, prompting

Love-Lane to file a grievance. J.A. 1069. Love-Lane filed her

employee grievance form on August 15, 1997, claiming that she was

being discriminated against because of her race. J.A. 1017. She

alleged that the letter of reprimand was based on Blanchfield’s biased

investigation. Id. Love-Lane’s grievance prompted Superintendent

Martin to assign a paralegal in his office to conduct an investigation

into the altercation. J.A. 1029. The investigator reviewed the materials that had been compiled by Blanchfield in her investigation of the

altercation, and he interviewed witnesses identified by both Blanchfield and Love-Lane. The investigator concluded that both Love-Lane

and the teacher had used profanity and that Blanchfield’s reprimands

were justified. J.A. 1029-31. Martin received a written and oral report

from the investigator in early September 1997. Id. Based on the

report, Martin sent Love-Lane a letter on September 23, 1997, warning her that "[a]nother such outburst" would result in a recommendation for her dismissal. J.A. 975. Martin did not personally investigate

Love-Lane’s discrimination claim because, according to him, "race

had nothing to do with [the problems between Love-Lane and Blanchfield]. It was clearly personality conflict. Race had nothing to do with

it." J.A. 1401. 

In October 1997, at the beginning of Love-Lane’s third year at

Lewisville, Martin met with her and Blanchfield. In a letter that Martin handed to both women, he strongly encouraged them to work

together in a spirit of cooperation; otherwise, he said, changes would

have to be made at Lewisville. J.A. 969. Martin made several points

8 LOVE-LANE v. MARTIN
in his letter. He noted that "neither [Blanchfield nor Love-Lane] has

much respect or trust in the other" and that he had never "experienced

a conflict between two school administrators as acrimonious and divisive." J.A. 976. Martin said, however, that "there is no . . . basis to

believe that the conflict between these two administrators is based

upon the race of the individuals." J.A. 978. Martin did believe that the

bad working relationship between the two women "adversely affected

the effectiveness of the administration of the school," J.A. 977, but he

was careful to note that the welfare and safety of the students were

not at risk, J.A. 978. Martin’s letter had specific warnings for LoveLane. She was told that if she disagreed with any of Blanchfield’s

policies, she should state her disagreements to Blanchfield in private,

not in public to the faculty, students, or parents. J.A. 979. Finally,

Love-Lane was warned that she would have no future as a school

administrator unless she was "able and willing to respect the authority

of the principal and to rebuild that degree of trust that is necessary for

her to function effectively as a school administrator." J.A. 980. LoveLane responded to Martin’s letter by telling him once again that "it

was the students [she] was concerned about," especially the African

American students who "were being treated improperly in the timeout room and otherwise." J.A. 1212. Martin, who admits that LoveLane raised these concerns a number of times between the spring and

fall of 1997, J.A. 968, 1306, told Love-Lane that it was not her "job

to worry about the children . . . but that it was [her] job to please [her]

principal," J.A. 1212. Martin ignored Love-Lane’s expressions of

concern about the discriminatory disciplinary practices and told her

point blank that he did not want to "hear from [her] or Lewisville that

year." Id. See also J.A. 1306. 

Notwithstanding Martin’s warnings, Love-Lane continued to voice

her concerns about race discrimination at Lewisville during her third

year (1997-98) there. As a result, her relationship with Blanchfield

deteriorated even further. In January 1998 the fifth grade teachers

complained about Love-Lane to Blanchfield and requested that

another administrator be assigned to the fifth grade team for the rest

of the year. J.A. 959-61. Specifically, the teachers told Blanchfield

that they were having difficulty in communicating with Love-Lane

and that she was not treating them as professionals. Id. In the spring

of 1998 the fifth grade teachers again complained, this time to Martin,

about their difficulties in working with Love-Lane. J.A. 1155-56.

LOVE-LANE v. MARTIN 9
According to Martin, these teachers regarded Love-Lane as overbearing, intimidating, and unsupportive of their disciplinary practices. J.A.

1328, 1372. On May 7, 1998, Blanchfield completed a draft evaluation of Love-Lane’s performance for her third year at Lewisville.

Blanchfield rated Love-Lane "below standard" and "unsatisfactory" in

three areas that related primarily to communication skills and efforts.

Love-Lane received ratings of "at standard" or above in eight of

eleven evaluation categories, including two ratings of "well above

standard." J.A. 292-96. Martin and Amanda Bell (an assistant superintendent) reviewed the evaluation before it was given to Love-Lane.

J.A. 290. On May 11, 1998, Blanchfield sent Love-Lane a memo,

with copies to Martin and Bell, stating that she (Blanchfield) considered Love-Lane’s "continued vocal opposition to our implementation

of the Time-Out Room as blatant disrespect for me." J.A. 1268. On

June 2 Martin sent Love-Lane a memo informing her that she would

"be assigned to a different school, working in a non-administrative

position for the 1998-99 school year." J.A. 481. Love-Lane was ultimately assigned to teach high school classes at North Forsyth High

School. J.A. 1216. Love-Lane’s pay level was maintained until the

end of her administrative contract. Martin’s memo informed LoveLane of Blanchfield’s claim "that [Love-Lane] put forth minimal

efforts to carry out the role, responsibilities, and functions of an assistant principal," which resulted in her lower evaluation for the 1997-98

school year. J.A. 481. Martin claimed that Love-Lane had failed to

respond positively to his October 1997 recommendations and that she

lacked the "ability or desire to rebuild respect and trust" with Blanchfield and other staff members at Lewisville. Id. Martin concluded that

Love-Lane’s "unwillingness to re-establish working relationships

with the principal and staff" had convinced him that Love-Lane did

"not have a future as an administrator" in the school system. Id. Martin says that he "was not aware of, and did not consider" that LoveLane "had engaged in any First Amendment activities." J.A. 973.

Blanchfield, too, was transferred out of Lewisville and was placed at

the school system’s central office for the 1998-99 year. J.A. 290. 

Love-Lane filed a grievance with the Board challenging Martin’s

decision to reassign her. A panel of three Board members held a hearing in Love-Lane’s case on August 4, 1998, and the following two

issues were considered:

10 LOVE-LANE v. MARTIN
1. Whether or not the recommendation of the Superintendent [Martin] to non-renew the two-year administrative

contract of Ms. Decoma Love-Lane is arbitrary, capricious,

or for personal or political reasons.

2. Whether or not the Superintendent [Martin] has the

authority to assign Ms. Love-Lane to a teaching position for

the remaining year of her administrator’s contract.

J.A. 991. The three-member Board panel received documents from

both sides, including a "grievance book" that Love-Lane had compiled. J.A. 273, 304. The panel also heard statements from LoveLane’s lawyers, Love-Lane, Martin, and Blanchfield. Id. The minutes

of the hearing reflect that one of Love-Lane’s lawyers argued to the

panel that "the disagreements evidenced in the record between Ms.

Blanchfield and Ms. Decoma Love-Lane were personal in nature and,

therefore, the Board should not uphold" Martin’s decision. J.A. 992.

Love-Lane told the panel that "her career was being sabotaged by Ms.

Blanchfield" and that Blanchfield’s recommendations regarding

Love-Lane’s future were "personal in nature." J.A. 993. Love-Lane

denied that her performance had been unsatisfactory or below standard. Id. Martin said that the reasons stated in his June 2, 1998, memo

to Love-Lane justified his decision to remove her from the assistant

principal’s job at Lewisville and reassign her to a teaching position.

The Board panel voted 2-1 to uphold Martin’s reassignment decision.

The one member who dissented did so because it appeared that "Dr.

Martin had already made up his mind about what he wanted to happen." J.A. 264. This member "became concerned because [she] didn’t

feel that [Martin] had given Ms. Love-Lane a fair shake." Id. Because

the panel’s decision was not unanimous, Love-Lane was able to

appeal the issue to the full Board, which upheld the decision after

reviewing the record before the panel and hearing argument from the

lawyers for both sides. J.A. 273-74, 314-15. Love-Lane continues to

work in her high school teaching position, but she claims to have lost

any opportunity to pursue her preferred career path in school administration. J.A. 1216. 

On August 28, 1998, Love-Lane filed a charge of race discrimination and retaliation against the Board and Martin with the Equal

Employment Opportunity Commission (EEOC). She received a right

LOVE-LANE v. MARTIN 11
to sue letter from the EEOC on June 30, 1999. On August 26, 1999,

Love-Lane filed a complaint in federal court against the Board and

Martin, alleging race discrimination, retaliation, and the denial of her

rights to free speech and due process of law in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et

seq., 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the North Carolina

Constitution. After extensive discovery the defendants filed a motion

for summary judgment, which the district court granted. The district

court concluded that Love-Lane could not establish a violation of her

rights to free speech and due process of law and that she failed to

make out a prima facie case of race discrimination. J.A. 644-84.

Love-Lane appeals the judgment, but she does not pursue the due process claim. 

II.

Love-Lane contends that the district court erred in granting summary judgment to the Board and Martin on her free speech and race

discrimination claims. We review the summary judgment decision de

novo. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th

Cir. 2002). Summary judgment is appropriate only when "there is no

genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In

reviewing the summary judgment, we view the facts in the light most

favorable to Love-Lane, the non-moving party, drawing all justifiable

inferences in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248-49 (1986). The dissent does the opposite: it ignores the best

of Love-Lane’s evidence and states the facts in the light most favorable to the Board and Martin. This mistaken approach, of course,

allows the dissent to say that this case involves nothing more than a

superintendent’s "decision to separate . . . two administrators

embroiled in a personality conflict." Post at 33-34. This case involves

much more than a personality conflict when the facts are viewed, as

they must be, in Love-Lane’s favor: it involves a superintendent who

demoted an assistant principal because she spoke out against race discrimination in discipline at a public school. 

12 LOVE-LANE v. MARTIN
III.

A.

We turn first to the district court’s rejection of Love-Lane’s claim,

asserted under 42 U.S.C. § 1983, that the Board and Martin violated

her right to free speech guaranteed by the First Amendment to the

Constitution of the United States. The government may not retaliate

against a public employee who exercises her First Amendment right

to speak out on a matter of public concern. See Pickering v. Bd. of

Educ., 391 U.S. 563, 573 (1968). This means, for example, that "[a]

state may not dismiss a public school teacher because of the teacher’s

exercise of speech protected by the First Amendment." Stroman v.

Colleton County Sch. Dist., 981 F.2d 152, 155-56 (4th Cir. 1992). The

First Amendment does not protect all speech by public employees.

"Personal grievances, complaints about conditions of employment, or

expressions about other matters of personal interest" fall outside the

First Amendment because they are not matters of public concern. Id.

at 156. Even speech on a matter of public concern does not automatically qualify for First Amendment protection: the speaker’s interest

in free expression is "tempered by the government’s interest in governmental effectiveness, efficiency, order, and the avoidance of disruption." McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998). 

Retaliatory employment action violates a public employee’s right

to free speech under the following conditions. First, the speech must

relate to a matter of public concern. Id. Second, the "employee’s

interest in First Amendment expression must outweigh the employer’s

interest in efficient operation of the workplace." Goldstein v. Chestnut

Ridge Volunteer Fire Co., 218 F.3d 337, 352 (4th Cir. 2000) (internal

quotation marks omitted) (citing Pickering, 391 U.S. at 568). (This

part of the inquiry is known as the Pickering balancing test.) Third,

there must be a causal relationship between the protected speech and

the retaliatory employment action; specifically, "the protected speech

[must be] a ‘substantial factor’ in the decision to take the allegedly

retaliatory action." Id. (internal quotation marks and citation omitted).

The first two elements involve questions of law. The third element,

causation, can be decided on "summary judgment only in those

instances when there are no causal facts in dispute." Id.

LOVE-LANE v. MARTIN 13
1.

The first question is whether Love-Lane’s speech was about a matter of public concern. "Speech involves a matter of public concern

when it involves an issue of social, political, or other interest to a

community." Urofsky v. Gilmore, 216 F.3d 401, 406-07 (4th Cir.

2000). The Supreme Court has made it clear that statements about a

"[s]chool [d]istrict’s allegedly racially discriminatory policies

involve[ ] a matter of public concern." Connick v. Myers, 461 U.S.

138, 146 (1983) (citing Givhan v. W. Line Consol. Sch. Dist., 439

U.S. 410 (1979)). We, too, have repeatedly recognized that a public

employee’s speech about racially discriminatory practices, particularly in public schools, involves a matter of public concern. See Seemuller v. Fairfax County Sch. Bd., 878 F.2d 1578, 1582 (4th Cir.

1989); Arvinger v. Mayor & City Council of Baltimore, 862 F.2d 75,

78 (4th Cir. 1988); cf. Piver v. Pender County Bd. of Educ., 835 F.2d

1076, 1079 (4th Cir. 1987); English v. Powell, 592 F.2d 727, 732 n.5

(4th Cir. 1979). In analyzing whether speech involves a matter of

public concern, we consider "the content, form, and context of [the]

given statement[s], as revealed by the whole record." Connick, 461

U.S. at 147-48. In this case, content and context are key. The content

or subject matter of Love-Lane’s speech dealt with disciplinary practices at Lewisville that discriminated against African American children. According to Love-Lane, African American children were

disciplined more severely than other students. For example, they were

sent more often to the time-out room, where they received no meaningful instruction. This speech did not relate to a private issue

between Love-Lane and her employer. Rather, the summary judgment

record demonstrates that it dealt with an issue of major concern to

many in the Lewisville school community, including teachers, parents, and students. 

The context of Love-Lane’s speech is also important. Race discrimination in discipline was a topic Love-Lane spoke up about at

SIT meetings, at Lewisville faculty meetings, and at private meetings

with Blanchfield or Martin. The meetings of the SIT (the advisory

group of teachers, administrators, and parents) often focused on how

to improve the education of Lewisville’s "at-risk kids," many of

whom were African American. J.A. 387-88. Thus, at SIT meetings

when Love-Lane talked about race discrimination in discipline, she

14 LOVE-LANE v. MARTIN
was raising exactly the sort of issue that was meant to be discussed

at such meetings — meetings that were attended by parent representatives from the community. Cf. Piver, 835 F.2d at 1081 (noting that the

public importance of a teacher’s speech on the subject of a principal’s

tenure was demonstrated when "part of the speech took place at a

public meeting called for the very purpose of soliciting opinions" on

the tenure question). The fact that Love-Lane at times voiced her

complaints about discriminatory discipline in faculty meetings and in

private meetings with Blanchfield or Martin does not forestall a conclusion that her speech involved a matter of public concern. In the

end, Love-Lane’s "right to protest racial discrimination—a matter

inherently of public concern—is not forfeited [because she sometimes

chose] a private forum." Connick, 461 U.S. at 148 n.8 (emphasis

added). See also Cromer v. Brown, 88 F.3d 1315, 1326 (4th Cir.

1996). In sum, the content and context of Love-Lane’s speech establish that she was speaking about a matter of public concern. 

The dissent claims that "Love-Lane’s speech on . . . discriminatory

practices was but a small part of her tenure at Lewisville." Post at 41.

It thus suggests that Love-Lane did not speak out often enough about

discriminatory discipline to qualify as a citizen speaking on a matter

of public concern. See post at 40. This simply ignores Love-Lane’s

evidence in the summary judgment record. Time and again, that evidence shows, Love-Lane voiced her opposition to the time-out room

and other disciplinary practices that discriminated against African

American students. J.A. 385, 387-88, 415, 1168. She pointed out that

African American students were disciplined in ways that often

excluded them from regular class participation and from participation

in activities such as class trips. J.A. 1203-07. Love-Lane has proffered

evidence that she was persistent in speaking up about these problems,

particularly the time-out room, in discussions with Blanchfield and

Superintendent Martin and in meetings of the faculty and the SIT.

One parent-member of the SIT summed up the focus and persistence

of Love-Lane’s speech in this way: 

Ms. Love-Lane informed us [in the SIT meetings] that there

was an overwhelming number of African-American students

that were in the time-out room, that were sent to the office,

and that were suspended. Ms. Love-Lane attempted to

address the reasons for this situation time and again. Ms.

LOVE-LANE v. MARTIN 15
Love-Lane spoke out about the fact that some of the teachers were arbitrary in their discipline, and did not know how

to control African-American children. She expressed concerns about some teachers’ lack of understanding of cultural

differences. She wanted us to try to work towards resolving

the problem. 

J.A. 394 (emphasis added). The record, when read in the light most

favorable to Love-Lane, leaves no doubt that she spoke out regularly

about discriminatory discipline, a matter of public concern.

2.

Next, we consider whether Love-Lane’s free speech interest outweighs the interest of the Board and the Superintendent in the efficient operation of the school system. See Pickering, 391 U.S. at 568.

The interest of the community is also weighed in this evaluation. Cromer, 88 F.3d at 1326. The government employer must make a

stronger showing of the potential for inefficiency or disruption when

the employee’s speech involves a "more substantial[ ]" matter of public concern. Connick, 461 U.S. at 152. See also Hall v. Marion Sch.

Dist. No. 2, 31 F.3d 183, 195 (4th Cir. 1994) ("When an employee’s

speech substantially involves matters of public concern . . . the state

must make a stronger showing of disruption in order to prevail."). An

assistant principal’s detailed claim of race discrimination against African American students in a public school involves a serious and substantial issue of public concern. The summary judgment record

demonstrates that this issue was of special importance to parents of

African American children at Lewisville and to many in the larger

community. J.A. 75-76, 387-88. 

Because of the especially strong interest of the speaker (LoveLane) and the community in the subject of Love-Lane’s speech, the

Board and Martin bear a heavier burden in attempting to show that

their efficiency concerns outweigh Love-Lane’s free speech interests.

Factors that we take into account in balancing these interests include

whether the employee’s speech (1) impairs the ability of supervisors

to mete out discipline, (2) impairs harmony among co-workers, (3)

damages close working relationships, (4) impedes the performance of

the public employee’s duties, (5) interferes with the operation of the

16 LOVE-LANE v. MARTIN
agency, (6) conflicts with the responsibilities of the employee within

the agency, and (7) is communicated to the public or to co-workers

in private. McVey, 157 F.3d at 278 (citing Rankin v. McPherson, 483

U.S. 378, 388-91 (1987)). In this case the Board and Martin argue that

Love-Lane’s speech adversely affected school administration and

resulted in poor working relationships between Love-Lane and other

teachers and between Love-Lane and Blanchfield. 

In considering the employer’s efficiency concerns, we take into

account the disruptions or inefficiencies caused by the content of the

speech for which First Amendment protection is sought. Givhan, 439

U.S. at 415 n.4. Of course, the speech "will not be considered in a

vacuum; the manner, time, and place of the employee’s expression are

relevant, as is the context in which the dispute arose." Rankin, 483

U.S. at 388. The defendants’ proffered evidence reveals that certain

teachers (mostly from the fifth grade) and administrators regarded

Love-Lane as abrasive and confrontational. J.A. 1002-03, 1155-56,

1210. A few fifth-grade teachers complained on one occasion that

Love-Lane called their use of the time-out room "unprofessional."

And Blanchfield said that she took Love-Lane’s vocal opposition to

the time-out room as a sign of "blatant disrespect." It appears that the

teachers and administrators who took offense at Love-Lane’s manner

or tone also took offense at the content of her speech opposing race

discrimination in discipline. (The dissent contends that this last statement "finds no support in the record," post at 41, but it does. For

example, one fifth-grade teacher who opposed the time-out room

"heard [other fifth-grade] teachers on more than one occasion express

resentment toward Ms. Love-Lane for questioning discipline practices" such as their use of the time-out room. J.A. at 364.) 

For her part, Love-Lane states that she voiced her concerns about

race discrimination in a sincere and respectful way. J.A. 1203-04.

Love-Lane’s own statements must be credited for purposes of summary judgment, and contrary to what the dissent suggests, see post at

41, her position has much support in the record. A number of LoveLane’s fellow staff members at Lewisville, as well as parent-members

of the SIT, confirm that her speech and manner were professional and

reassuring, not disruptive or disrespectful. See, e.g., J.A. 354 (assistant principal stating that Love-Lane performed her duties "in a professional manner."); J.A. 384 (teacher stating that Love-Lane was

LOVE-LANE v. MARTIN 17
"warm, passionate and professional" and that "[c]hildren, parents and

teachers felt comfortable talking with [her]."); J.A. 1166 (teacher stating that Love-Lane was "articulate, genuine, caring, and accessible"

in her role as assistant principal); J.A. 414 (teacher stating that LoveLane "was pleasant to work with and I respected her."); J.A. 397

(teacher’s assistant stating that Love-Lane was "an excellent assistant

principal" who "had the children’s well-being at heart."); J.A. 349

(parent-member of the SIT stating that "Love-Lane was always

respectful and professional" in voicing her objections to the time-out

room and other disciplinary practices that worked against AfricanAmerican students). Superintendent Martin himself acknowledged

that the "welfare of the students" was not "at risk as a result of any

action or in action [sic] by" Love-Lane. J.A. 978. We have thus analyzed the effects of both the content and manner of Love-Lane’s

speech, and we have done it in a way that is well within the parameters of the cases cited by the dissent. See e.g., Leary v. Daescher, 228

F.3d 729, 738 (6th Cir. 2000) (concluding that even though plaintiffteachers’ speech criticizing their school’s handling of student discipline "was often conducted in a disrespectful manner," the speech was

"of sufficient public importance to outweigh the [school board’s]

interest in limiting that speech."). 

In sum, the evidence, especially when viewed in Love-Lane’s

favor, shows that her speech did not affect the ability of administrators and teachers at Lewisville to deliver their educational services;

nor did her speech diminish the quality of education being provided.

But even if Love-Lane’s speech — exposing and opposing race discrimination — caused some disharmony at the Lewisville school, we

must remember that her speech dealt with a substantial issue of public

concern that was of special interest to the larger Lewisville community. In all events, the interests of Love-Lane and the community in

her speech are sufficiently substantial to outweigh the efficiency concerns expressed by the defendants. 

3.

Last, we consider whether Love-Lane’s protected speech was a

substantial factor in the decision to transfer her from the administrative position of assistant principal to a high school teaching position.

If the causal facts about the reassignment are in dispute, summary

18 LOVE-LANE v. MARTIN
judgment is not appropriate. Goldstein, 218 F.3d at 352. We note parenthetically that Love-Lane’s transfer or reassignment, which was a

demotion in duties and responsibilities, qualifies as an adverse

employment action for purposes of her free speech claim. See

DiMeglio v. Haines, 45 F.3d 790, 806-07 (4th Cir. 1995) (citing

Rutan v. Republican Party of Ill., 497 U.S. 62, 75-76 (1990)); Piver,

835 F.2d at 1078 (assuming that teacher’s reassignment to a school

located forty miles away would constitute retaliatory action). 

Love-Lane must proffer facts to demonstrate that her protected

speech was a substantial factor in the decision to remove her from the

job of assistant principal at Lewisville and reassign her to a teaching

position. On this point we review the record to determine whether a

reasonable jury could conclude that Love-Lane’s reassignment was

"substantially motivated by [her] protected speech; if a reasonable

jury could reach this conclusion, then we must remand the case for

trial." Goldstein, 218 F.3d at 357. The defendants offer several

grounds, all allegedly independent of the protected speech, to support

their decision to reassign Love-Lane to a teaching position. Specifically, they contend that Love-Lane (1) displayed an unwillingness "to

accept constructive criticism" from her supervisors, (2) "refused to

acknowledge any responsibility or need to develop better communication skills or better working relationships," (3) "put forth [only] minimal efforts to carry out the role, responsibilities, and functions of an

assistant principal," and (4) demonstrated an inability or lack of desire

"to rebuild respect and trust [which] adversely affected the administration of staff and Lewisville School." J.A. 481. The Board and

Superintendent Martin claim that none of Love-Lane’s evidence

shows that her protected speech was a factor in their respective decisions. Martin claims specifically that he did not consider Love-Lane’s

protected speech at all when he made the decision to reassign her to

a teaching position. The defendants (and the dissent), however, ignore

much of Love-Lane’s side of the summary judgment record. Our

review of the record reveals that Love-Lane has proffered sufficient

circumstantial evidence to establish that her protected speech (her

vocal opposition to the discriminatory discipline practices at Lewisville) was a substantial factor in the decision to demote her to a teacher’s position. Cf. Peters v. Jenney, 327 F.3d 307, 323 (4th Cir. 2003)

(vacating grant of summary judgment to defendant where the plaintiff

presented limited, but sufficient, evidence of a causal connection

LOVE-LANE v. MARTIN 19
between her speech and the nonrenewal of her contract); Pike v.

Osborne, 301 F.3d 182, 185 (4th Cir. 2002) (concluding that the

plaintiff’s evidence of the causal connection between speech and

retaliation was sufficient even though it was "thin and circumstantial"). We will recount this evidence. 

First, as Love-Lane’s speech became increasingly more critical of

race discrimination in discipline at Lewisville, her performance evaluations from Blanchfield, the principal, became increasingly more negative. At the end of Love-Lane’s first year as assistant principal at

Lewisville, before she expressed concerns about the treatment of

minority students, she received excellent evaluations from Blanchfield. At the end of Love-Lane’s second year, after she had spoken out

about discrimination — first in private meetings with Blanchfield,

where she was rebuffed, and later at faculty meetings and SIT meetings — Blanchfield gave her lowered evaluations. During her third

year, as Love-Lane continued to raise concerns about race discrimination at Lewisville, her relationship with Blanchfield deteriorated even

further. Near the end of the third year Blanchfield sent Love-Lane a

memo, with a copy to Martin, saying that she (Blanchfield) considered Love-Lane’s "continued vocal opposition to our implementation

of the Time-Out Room as blatant disrespect for me." J.A. 1268.

Blanchfield sent this memo at about the same time that she completed

her last evaluation of Love-Lane which rated her as "below standard"

or "unsatisfactory" in three areas. Martin, of course, relied on Blanchfield’s evaluations in making the decision to reassign Love-Lane. 

Second, Martin’s own assessment of Love-Lane grew more negative as she continued to speak out about discrimination. Indeed, Martin attempted to discourage or suppress her speech. Love-Lane

brought the race discrimination issue to Martin’s attention several

times. Rather than face up to the issue, however, Martin "seemed

more concerned that [Love-Lane] not make waves." Martin actually

instructed Love-Lane to "avoid any actions which might cause conflict." J.A. 1210. Love-Lane’s job, Martin told her, was not to worry

about the children but to please the principal, Blanchfield. Martin

admitted that he did not conduct any investigation into Love-Lane’s

allegations about racially discriminatory practices at Lewisville. J.A.

1364-65, 1413-15. And Martin further admitted that when Love-Lane

continued to confront him about her concerns, he "told her that all of

20 LOVE-LANE v. MARTIN
Lewisville’s business needs to stay out of my office." J.A. 1306.

Finally, Love-Lane told Martin that Blanchfield was giving her lower

evaluations because she had spoken out on racial issues. See J.A. 661.

Martin nevertheless decided that Love-Lane should be removed from

her administrative position at Lewisville and transferred to a high

school teaching position.

A rational jury could find from these facts that Blanchfield resented

Love-Lane’s vocal opposition to race discrimination and that she punished Love-Lane for this speech by giving her lower evaluations. A

jury could find that Martin, who endorsed Blanchfield’s evaluations

and reassigned Love-Lane in part because of them, was aware of

Love-Lane’s speech and Blanchfield’s opposition to it. A jury could

find that Martin was unwilling to address Love-Lane’s concerns about

race discrimination at Lewisville and that he even attempted to prevent Love-Lane from speaking out. A jury could find that Martin

became increasingly aggravated as Love-Lane continued to bring up

the subject of race discrimination at Lewisville. Finally, a jury could

conclude that Love-Lane’s speech was a substantial factor in the decision to remove her from her job at Lewisville and demote her. 

The dissent claims that Martin demoted Love-Lane because of her

personality conflict with Blanchfield and her "tone and demeanor."

Post at 44. Love-Lane’s evidence does not allow this conclusion at

the summary judgment stage. At the three schools where Love-Lane

previously served as assistant principal, she had excellent relationships with her principals. These principals complimented her for her

strong skills in communicating and consistently recommended her for

promotion. J.A. 1199-2000. Superintendent Martin himself considered Love-Lane to be "an outgoing, people oriented administrator."

J.A. 966. Martin considered transferring Love-Lane to Lewisville

because Blanchfield had allowed serious racial tensions to develop

there. Martin knew that Blanchfield and Love-Lane had different

approaches to school administration. Nevertheless, Martin sent LoveLane to Lewisville as an antidote to the racial tensions and to serve

as a role model for African American students. J.A. 966. As it turned

out, Love-Lane and Blanchfield did not get along; but when the facts

are viewed in Love-Lane’s favor, it becomes clear that this case cannot be brushed aside as a "simple personality dispute," as the dissent

attempts to do. See post at 35. Once Love-Lane went to Lewisville

LOVE-LANE v. MARTIN 21
and assessed the situation, she realized that discriminatory discipline

was a major problem. When she began to speak out about the discrimination, she ran into trouble with Martin. She raised her concerns with

him, and he told her that he did not want to hear about Lewisville.

When Love-Lane persisted in speaking out, Martin demoted her.

Love-Lane thus proffers sufficient evidence to raise a jury question

about whether her speech was a substantial factor in the decision to

demote her.

4.

We conclude that Love-Lane, who was protesting race discrimination in a public school, was speaking out on a matter of public concern. Love-Lane’s and the community’s interests in her speech

outweigh the efficiency concerns of her employer. And, when we

view the evidence in the light most favorable to Love-Lane, we conclude that there is a genuine issue of material fact as to whether LoveLane’s speech was a substantial factor in the decision to demote her.

The dissent contends that we have reached this conclusion by ignoring defense evidence and by "accord[ing] little respect to the record."

Post at 44. See also post at 35-36. We have not ignored the evidence

proffered by the defense. See supra at 7-10, 17, 19-20. And we have

respected the record because the entire record has been our guide. A

review of the entire record reveals a factual dispute about the role of

Love-Lane’s speech in her demotion that must be resolved by a jury.

In sum, Love-Lane has at this stage established the elements of a

claim that she was retaliated against for exercising her constitutional

right to free speech. 

B.

Because Love-Lane presents a valid claim for violation of her First

Amendment right to free speech, we must decide whether the defendants, the Board and Superintendent Martin, are subject to suit under

42 U.S.C. § 1983. We consider in turn the potential liability of the

Board and Martin (the latter is sued in both his official and personal

capacities). 

1.

To hold a municipality (a local government entity) liable for a constitutional violation under § 1983, the plaintiff must show that the

22 LOVE-LANE v. MARTIN
execution of a policy or custom of the municipality caused the violation. Hall, 31 F.3d at 195. "[M]unicipal liability may be imposed for

a single decision by municipal policymakers under appropriate circumstances." Pembaur v. City of Cincinnati, 475 U.S. 469, 480

(1986). To hold a municipality liable for a single decision (or violation), the decisionmaker must possess "final authority to establish

municipal policy with respect to the action ordered." Id. at 481. In this

case the Board exercised final review authority over Martin (through

the three-person panel of the Board and then the full Board) in

approving his decision to demote Love-Lane to a teaching position.

Only this action by the Board, which involved the exercise of its final

policymaking authority, may serve as the basis for Board liability. Id.

Thus, the Board cannot be held liable for personnel decisions over

which it did not retain final review authority; that is, it is not liable

for decisions committed to Martin’s discretion because there is no

respondeat superior liability under § 1983. See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 691 (1978). Rather, the Board is only liable for

acts that it has "officially sanctioned or ordered." Pembaur, 475 U.S.

at 480. This means that Love-Lane must demonstrate that the Board

was aware of the constitutional violation and either participated in, or

otherwise condoned, it. See Hall, 31 F.3d at 196. We conclude that

Love-Lane has failed to demonstrate the necessary involvement on

the part of the Board. 

The minutes of Love-Lane’s grievance hearing reveal that LoveLane did not argue to the Board’s three-person panel that either

Blanchfield or Martin retaliated against her because she was exercising First Amendment rights. J.A. 278-79. Likewise, Love-Lane’s

"grievance book," which documented her case to the Board, did not

contain anything that would have alerted the Board to her First

Amendment claim. J.A. 195-96. Each member of the Board, which

upheld Martin’s decision after Love-Lane appealed the decision of the

three-member panel, stated that his or her decision had nothing to do

with Love-Lane’s speech. Love-Lane thus offers no evidence that the

Board punished her for, let alone was aware of, her opposition to race

discrimination at Lewisville. In addition, the Board had before it legitimate grounds for upholding Martin’s decision. We conclude that

Love-Lane has not produced sufficient evidence to hold the Board liable under § 1983 for a violation of her First Amendment rights. Cf.

Curtis v. Okla. City Pub. Schs. Bd. of Educ., 147 F.3d 1200, 1216

LOVE-LANE v. MARTIN 23
(10th Cir. 1998) (holding that there was no school board liability

where the "record indicates that Plaintiff did not himself inform the

Board, either at the pretermination hearing or in writing, that he

believed the recommendation was retaliatory"). Accordingly, the district court properly rejected Love-Lane’s First Amendment claim

against the Board. 

2.

We turn next to Love-Lane’s claims against Martin, brought

against him in both his official and individual capacities. The district

court correctly held that the § 1983 claim against Martin in his official

capacity as Superintendent is essentially a claim against the Board

and thus should be dismissed as duplicative. Kentucky v. Graham,

473 U.S. 159, 165-66 (1985); Hicks v. Halifax County Bd. of Educ.,

93 F. Supp. 2d 649, 667 (E.D.N.C. 1999). As to the First Amendment

claim against Martin under § 1983 in his individual capacity, Martin

asserts a qualified immunity defense. See Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). We review de novo the district court’s determination that Martin is entitled to immunity, viewing the evidence in the

light most favorable to Love-Lane. Gomez v. Atkins, 296 F.3d 253,

260-61 (4th Cir. 2002). To determine whether Martin is entitled to

qualified immunity, we must (1) identify the right allegedly violated,

(2) consider whether at the time of the alleged violation the right was

clearly established, and (3) determine whether a reasonable person in

Martin’s position would have known that his actions would violate

that right. Wilson v. Layne, 141 F.3d 111, 114-15 (4th Cir. 1998). We

conclude that Martin is not entitled to qualified immunity. 

We have already covered the first step in Part III.A, supra, where

we examined at length the right allegedly violated and observed that

a public employee like Love-Lane has a First Amendment right to

protest racially discriminatory practices at her agency without fear of

retaliation. The more interesting question is the second, that is,

whether the right was clearly established in 1997 and 1998 when

Love-Lane was speaking out about race discrimination in discipline

at Lewisville and Martin was allegedly retaliating against her. Pickering itself, decided thirty years before Love-Lane’s speech and demotion, made clear that the core value of the Free Speech Clause of the

First Amendment — "[t]he public interest in having free and unhin24 LOVE-LANE v. MARTIN
dered debate on matters of public importance" — is so great that a

public school "teacher’s exercise of [her] right to speak on issues of

public importance may not furnish the basis for" an adverse employment decision against her. Pickering, 391 U.S. at 573, 574. And Givhan, decided nearly twenty years before Love-Lane’s speech, made

"clear that . . . statements concerning the [s]chool [d]istrict’s allegedly

racially discriminatory practices involved a matter of public concern."

Connick, 461 U.S. at 146. Thus, by 1997 it was clearly established

that Love-Lane’s speech about race discrimination at Lewisville

involved a matter of public concern. We have said on many occasions, however, that "only infrequently will it be ‘clearly established’

that a public employee’s speech on a matter of public concern is constitutionally protected, because the relevant inquiry requires a ‘particularized balancing’ [under Pickering] that is subtle, difficult to apply,

and not yet well-defined." DiMeglio, 45 F.3d at 806 (citation omitted). But we have never said "that a public employee’s right to speak

on matters of public concern could never be clearly established." Cromer, 88 F.3d at 1326. We did the Pickering balancing in part III.A,

supra, and concluded that the subject of Love-Lane’s speech was of

such heightened public concern that her interest (and the community’s) clearly outweighed her employer’s interest in efficiency. We

noted there, in fact, that Martin admitted outright that Love-Lane’s

speech did not jeopardize the welfare of the students at Lewisville. 

In light of this earlier discussion, we are persuaded that the interests

to be balanced under Pickering weigh so heavily in Love-Lane’s

favor that her right to speak about race discrimination in a public

school was clearly established well before 1997 and 1998. See Cromer, 88 F.3d at 1327-29. 

The final item in the qualified immunity inquiry is whether a reasonable person in Martin’s position would have known that demoting

Love-Lane would have violated her right to speak out about race discrimination. We recognize that Martin, as school superintendent, has

a very tough job — from handling difficult personnel matters, to satisfying parents, to providing quality education. A superintendent must

therefore be accorded a great deal of leeway in managing a school

system. Still, by 1997 a reasonable superintendent would surely be

aware of a teacher’s right to speak out in opposition to race discrimination against elementary school children. And a reasonable superintendent would also know that retaliation taken in response to such

LOVE-LANE v. MARTIN 25
speech is a First Amendment violation, especially when the speech

was not disruptive to the point of jeopardizing the welfare of the children. In short, "[a]lthough it may be difficult to delimit exactly what

conduct, in the abstract, violates a public employee’s first amendment

rights," demoting a public school teacher who speaks out against race

discrimination in her school in a manner that does not jeopardize the

welfare of the students "surely falls within the ambit." Thompson v.

City of Starkville, 901 F.2d 456, 470 (5th Cir. 1990). Because case

law had confirmed Love-Lane’s right to speak and because the Pickering balancing test tips decidedly in her favor, we hold that any reasonable school superintendent in Martin’s position in 1997 and 1998

would have realized that he would violate the Constitution if he, in

fact, took adverse employment action against Love-Lane for speaking

out about race discrimination at Lewisville Elementary School. We

emphasize here that any liability on Martin’s part hinges on LoveLane’s ability to convince a jury that her reassignment was, in fact,

retaliation for her exercise of protected speech. We emphasize, too,

that we are not holding that every time a public official takes an

adverse employment action against an employee who has complained

of discrimination, the official risks a trial. See Cromer, 88 F.3d at

1330 n.11. "Rather, this is the infrequent case where, after the Pickering balancing, the employee had the right to speak as a citizen about

extensive and specific claims of racial discrimination." Id. Here,

Love-Lane assessed the situation at Lewisville for an entire school

year, determined that the time-out room and other disciplinary practices discriminated against African American children in specific

ways, and complained about this to school officials, at first privately

and then more publicly. Surely Martin should have known that LoveLane could not be disciplined for her speech on such a vital subject.

For all of these reasons, we reverse the district court’s determination

that Martin is entitled to qualified immunity with respect to LoveLane’s free speech claim. 

The dissent claims that in denying qualified immunity to Superintendent Martin, we "leave[ ] [top] school administrators in a sea of

indeterminancy." Post at 48. The majority asks, "What exactly are

school administrators in Martin’s shoes henceforth supposed to do?"

Post at 48. The answer is simple. They should do the same thing they

were supposed to do before today: hear out, and not retaliate against,

an assistant principal (or some other mid-level administrator) who

26 LOVE-LANE v. MARTIN
raises concerns in a professional way about race discrimination in a

public school. We should remember that mid-level school administrators, such as Love-Lane, have tough jobs too, for they are on the front

lines. The doctrine of qualified immunity does not strip them of

clearly established constitutional protections. The superintendent who

appreciates this, as most surely do, will not be hindered by today’s

decision. 

C.

In an attempt to broaden its attack on our decision to allow LoveLane’s First Amendment claim to proceed against Superintendent

Martin, the dissent in its part IV discusses the importance of maintaining discipline in our public schools. See post at 49 ("Keeping order

in our nation’s schools is among our most pressing educational concerns.") This discussion actually confirms that Love-Lane was speaking out about a matter of substantial public concern when she

questioned discriminatory practices in discipline at Lewisville.

Indeed, Love-Lane’s speech was consistent with her interest in strong

discipline. She believes "that children must be taught standards of

behavior and they must be required to meet them. If children do not

adhere to standards, then [she] believe[s] it is a teacher’s responsibility, as a trained professional, to confront the problem and deal with

it, not pass it off or give up on the child." J.A. 1204. According to

Love-Lane, that is where Lewisville was failing. Too many teachers

were using the time-out room to warehouse at-risk children who were

often consigned there for minor infractions. Once there, the children,

who were mostly African-American, received no instruction. LoveLane used her First Amendment right to expose this practice. 

The dissent also says that in allowing Love-Lane’s First Amendment claim to proceed, we are relying on litigation, not democratic

discourse, to settle debates about disciplinary methods in public

schools. See post at 49-50. The dissent is mistaken. We are simply

recognizing that the First Amendment allows a school administrator

or teacher to debate issues of discipline within the parameters of Pickering. Here, the jury will not decide who had the best argument in the

debate about discipline at Lewisville. It will decide only whether

Love-Lane was demoted because she exercised her First Amendment

right to voice concerns about disciplinary practices. 

LOVE-LANE v. MARTIN 27
In its part V the dissent contends that our decision will drive good

educators to private schools or other options. As we have said, the

reasonable administrator who listens to the views of his subordinates

and who does not retaliate when a troublesome issue is raised need

not fear this opinion. But there is another point. The underprivileged

fifth-grade student who is warehoused in a time-out room does not

have the option of going to a private school or somewhere else. This

student has been abandoned at the end of the road unless someone,

like Love-Lane, is able to speak up for him. 

IV.

Love-Lane contends that the district court erred in granting summary judgment to the Board and Martin on her claims that she was

discriminated against because of her race when she was demoted.

Love-Lane asserts her discrimination claims under three federal statutes, Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. Love-Lane

proffers a circumstantial case, and the elements required to establish

such a case are the same under all three statutes. See St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 506 n.1 (1993); Thompson, 312

F.3d at 649 n.1. Specifically, the McDonnell Douglas framework,

developed for Title VII, has been used to evaluate race discrimination

claims under the three statutes. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-05 (1973). 

Section 703(a)(1) of Title VII of the Civil Rights Act of 1964

makes it "an unlawful employment practice for an employer . . . to

fail or refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race." 42 U.S.C. § 2000e-2(a)(1). Under the McDonnell

Douglas proof scheme the plaintiff must first establish a prima facie

case of discrimination. See St. Mary’s Honor Ctr., 509 U.S. at 506.

Once the plaintiff establishes her prima facie case, the defendant must

respond with evidence that it acted with a legitimate, nondiscriminatory reason. See id. at 506-07. If the defendant makes this

showing, the plaintiff must then present evidence to prove that the

defendant’s articulated reason was pretext for unlawful discrimination. See id. at 507-08. Although the evidentiary burdens shift back

and forth under the McDonnell Douglas framework, "[t]he ultimate

28 LOVE-LANE v. MARTIN
burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff." Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 143 (2000). We conclude in this case, for the reasons set forth

below, that while Love-Lane establishes a prima facie case of race

discrimination, she does not proffer sufficient evidence of pretext to

overcome the defendants’ legitimate, non-discriminatory reason for

their decision to demote her. (To the extent that the Supreme Court’s

recent decision in Desert Palace, Inc. v. Costa, 539 U.S. ___, 123 S.

Ct. 2148 (2003), might change the role that the McDonnell Douglas

burden-shifting framework plays in race discrimination cases, see

Dare v. Wal-Mart Stores, Inc., 267 F. Supp. 2d 987 (D. Minn. June

13, 2003), any change would not prevent the entry of summary judgment against Lane-Love on her race discrimination claims. As our

discussion will show, Love-Lane does not "present sufficient evidence for a reasonable jury to conclude, by a preponderance of the

evidence, that ‘race . . . was a motivating factor’" in her demotion.

Desert Palace, 123 S. Ct. at 2155.) 

A.

To establish her prima facie case that the defendants’ decision not

to renew her administrative contract and to reassign her to a teaching

position was discriminatory, Love-Lane must show that (1) she is a

member of a protected class, (2) she was qualified for her job and her

performance was satisfactory, (3) despite her qualifications she was

removed from her assistant principal’s position and reassigned to a

teaching position, and (4) the assistant principal’s position remained

open to similarly qualified applicants after her reassignment. See Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1228 (4th Cir. 1998);

Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). 

First, Love-Lane, who is African American, is a member of a protected class. See 42 U.S.C. § 2000e-2(a)(1). Second, Love-Lane’s evidence creates a genuine issue of fact as to whether her job

performance was satisfactory at the time of her reassignment. There

is no denying that by Love-Lane’s third year at Lewisville, her rapport with Blanchfield, as well as with several teachers, had deteriorated substantially, and her performance evaluations reflected that.

LOVE-LANE v. MARTIN 29
Love-Lane offers evidence, however, that she continued to perform

her job at a satisfactory level despite the problems with Blanchfield

and certain teachers. While the defendants offer evidence that Martin

and other top administrative officials independently evaluated LoveLane’s work performance and found it to be substandard, LoveLane’s evidence indicates that she was open to feedback and constructive criticism, made efforts to get along with Blanchfield and

other staff members at Lewisville, and conducted herself overall in a

professional and respectful manner. In fact, even on her last performance evaluation in the late spring of 1998, Love-Lane received ratings of standard or above in eight out of eleven evaluation categories.

J.A. 292-96. She received a rating of "well above standard" for her

work in planning the school program, which included assisting in

developing the goals and objectives of the school, providing direction

to staff, and contributing to the planning of the instructional program.

J.A. 292. Love-Lane has thus created a genuine issue of material fact

as to whether she was performing at a satisfactory level at the time

of her reassignment. Third, we assume here, as did the district court,

that Love-Lane’s removal from her administrative position and reassignment to a teaching position (a demotion) constitutes an adverse

employment action for purposes of Title VII. Cf. Boone v. Goldin,

178 F.3d 253, 256 (4th Cir. 1999) (noting that Title VII liability can

arise from "reassignment with significantly different responsibilities")

(internal quotation marks and citation omitted). Fourth, neither side

disputes that Love-Lane’s assistant principal position remained open

to similarly qualified applicants after her reassignment. In sum, LoveLane can establish each of the four elements of a prima facie case of

race discrimination. 

B.

Because Love-Lane has established a prima facie case of race discrimination, the burden shifts to the defendants to offer a legitimate,

nondiscriminatory reason for Love-Lane’s reassignment. O’Connor v.

Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996). The defendants contend that Love-Lane was reassigned because she demonstrated a complete inability to work effectively under Blanchfield and

because she failed to meet the expectations laid out for her by Martin

in his October 1997 memo. (Martin’s memo warned Love-Lane that

she had to respect the authority of her principal, register her disagree30 LOVE-LANE v. MARTIN
ments in private, and rebuild trust. J.A. 979-80.) This explanation is

sufficient to shift the burden to Love-Lane, who must show that "the

legitimate reasons offered by the defendant[s] were not [their] true

reasons, but were a pretext for discrimination." Burdine, 450 U.S. at

253. 

Love-Lane fails to proffer sufficient evidence of pretext. We recognize, of course, that we held in part III that a reasonable jury could

conclude that Love-Lane was retaliated against for speaking out on

race issues in violation of her right to free speech. But the fact that

Love-Lane has a viable free speech claim does not automatically

mean that she has a viable race discrimination claim. To reach a jury

on her race discrimination claims, Love-Lane must demonstrate —

apart from demonstrating that she was reassigned in retaliation for her

speech on race issues — that she was reassigned "because of" her

race. That, we conclude, she cannot do. Because, as we have already

concluded, Love-Lane presents a genuine issue of material fact as to

whether she was reassigned to a high school teaching position in

retaliation for her vocal opposition to race discrimination, it follows

that her evidence casts some doubt on the defendants’ assertion that

they had legitimate, nondiscriminatory reasons for reassigning her.

But that doubt has nothing to do with Love-Lane’s race. That is, none

of Love-Lane’s evidence that she was reassigned in retaliation for her

speech suggests that she was reassigned because of her race. Simply

because Love-Lane presents evidence that the defendants’ justification for their adverse employment decision may be false does not

mean that Love-Lane’s evidence demonstrates pretext for race discrimination. "The ultimate question is whether the employer intentionally discriminated, and proof that the employer’s proffered reason

is unpersuasive, or even obviously contrived, does not necessarily

establish that [Love-Lane’s] proffered reason . . . is correct." Reeves,

530 U.S. at 146-47 (internal quotation marks and citation omitted). It

is not enough to disbelieve the defendants here; the fact-finder must

believe Love-Lane’s explanation of intentional race discrimination.

Id. at 147. We conclude that no rational jury could do so based on the

evidence in the record. Love-Lane’s evidence demonstrates that racial

tensions were high at Lewisville during the Blanchfield administration and that Blanchfield herself made racially insensitive comments,

though none directed at Love-Lane, on at least two occasions. LoveLane did claim that Blanchfield’s reprimand following the June 1997

LOVE-LANE v. MARTIN 31
altercation was the result of racial bias. But an independent investigation into Love-Lane’s allegations uncovered no evidence of racial

bias or animus on Blanchfield’s part. Love-Lane provides no further

facts from which a jury could infer a discriminatory bias or animus

on the part of Blanchfield, let alone on the part of Martin or the

Board, that led to Love-Lane’s reassignment. Love-Lane does not

even allege that the decisions of Martin or the Board were motivated

by racial bias or animus. Love-Lane’s evidence demonstrates only

that she and Blanchfield "did not see eye-to-eye. . . . [T]his showing

of a difference of opinion, coupled with [Love-Lane’s] conclusory

allegations of racism, cannot reasonably support the conclusion that

[Love-Lane’s reassignment] was motivated by racial animus." Hawkins v. Pepsico, Inc., 203 F.3d 274, 281 (4th Cir. 2000). Because, on

the one side, there is substantial evidence that the defendants’ articulated justifications for Love-Lane’s dismissal were not pretext for

race discrimination and, on the other side, there is only Love-Lane’s

unsupported opinion that her reassignment was based on improper

discriminatory intent, we cannot conclude that she has proffered evidence of pretext sufficient to withstand the defendants’ motion for

summary judgment on the discrimination claims. Cf. id.; Williams v.

Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989). We therefore

affirm the award of summary judgment to the defendants on the federal race discrimination claims. 

V.

Finally, we turn to Love-Lane’s claims against the Board and

against Martin in his individual and official capacities for the violation of her right to free speech under Art. I, § 14 of the North Carolina

Constitution and for race discrimination in violation of Art. I, § 19 of

the North Carolina Constitution. Claims brought under the North Carolina Constitution may be asserted only against state officials acting

in their official capacities. See DeWitt v. Mecklenburg County, 73 F.

Supp. 2d 589, 605-06 (W.D.N.C. 1999) (citing Corum v. Univ. of

N.C., 413 S.E.2d 276, 293 (N.C. 1992)). Thus, the district court correctly dismissed the state constitutional claims against Martin in his

individual capacity. In addition, a plaintiff whose rights under the

North Carolina Constitution have been violated may pursue an action

directly under the state constitution only if there is no other remedy

under state law to redress the violation. Corum, 413 S.E.2d at 289. In

32 LOVE-LANE v. MARTIN
this instance, Love-Lane could have brought an action in state court

under N.C. Gen. Stat. § 115C-287.1(d) seeking review of the decisions of the Board and Martin. Because Love-Lane had this remedy

available under North Carolina statute, she is barred from pursuing

her state constitutional claims here. See Hughes v. Bedsole, 48 F.3d

1376, 1383 n.6 (4th Cir. 1995); Alt v. Parker, 435 S.E.2d 773, 779

(N.C. App. 1993). Accordingly, we affirm the district court’s grant of

summary judgment to the Board and Martin on Love-Lane’s state

constitutional claims. 

VI.

In sum, we vacate the district court’s grant of summary judgment

to Martin in his individual capacity on Love-Lane’s First Amendment

claim under 42 U.S.C. § 1983, and we remand for further proceedings

on that claim. Otherwise, we affirm the district court’s grant of summary judgment to the Board and to Martin (in his official capacity

only) on Love-Lane’s First Amendment claim under § 1983, to the

Board and Martin on Love-Lane’s race discrimination claims, and to

the Board and Martin on Love-Lane’s claims under the North Carolina Constitution. The dissent says that our decision to allow LoveLane’s First Amendment claim to go forward will "undercut the standards that challenge students and the expectations that form the

essence of education itself." Post at 49-50. That is a solemn pronouncement, but is not true. The standards and expectations that

shape public education are not undercut when we follow precedent,

as we have today, and protect the right of a mid-level school administrator to speak out against race discrimination in her school. 

VACATED IN PART, AFFIRMED IN PART, AND REMANDED.

WILKINSON, Circuit Judge, dissenting:

I appreciate the majority’s thoughtful opinion in this case. I cannot

join it, however, because it does public education too much harm. In

what are surely some of the toughest jobs in America, principals and

superintendents struggle to deal with troubled schools, budget deficits, and teacher shortages. Sadly, their jobs just got even harder. At

issue here is nothing more than Superintendent Don Martin’s decision

to separate Brenda Blanchfield and DeComa Love-Lane, two adminLOVE-LANE v. MARTIN 33
istrators embroiled in a personality conflict that was diverting energy

from the education of young children. To strip a superintendent of

qualified immunity for this sort of personnel action is an extraordinary step. After all, the whole purpose of qualified immunity is to preserve a degree of discretion and latitude on the part of those who run

our nation’s public schools. Principals’ and superintendents’ decisions

are inevitably going to disappoint at least some combination of teachers, students, parents, and the public. These beleaguered officials will

now find themselves fettered by yet another constraint: the constant

concern that their routine decisions will give rise to federal lawsuits.

Moreover, the majority’s decision gives rise to a circuit conflict. In

evaluating Martin’s interest in reassigning Love-Lane, the majority

considers only the substance of Love-Lane’s speech, and not the disruption caused by Love-Lane’s lack of tact and confrontational manner. The majority’s narrow focus is out of step with decisions of the

Supreme Court, of our own court, and of our sister circuits, which

have consistently found that employers are not required to ignore the

intemperate tone or unprofessional manner in which employees may

choose to express themselves. See Part II.B, infra. Speech in an office

setting is simply different from, for example, speech in a classroom,

speech in a campaign, or speech on the street. While speech in the

public square may profitably be caustic and even vitriolic, that same

type of speech in the workplace can rend the fabric of important relationships and interfere with the provision of valuable services to the

public. The majority’s holding to the contrary will work to the detriment not simply of public school systems, but of public offices

throughout this circuit.

I agree with my colleagues that Love-Lane had an opportunity to

make an important contribution to race relations at Lewisville. I agree

further with the majority that it is important to have honest discussion

on matters of race. If the record showed that Martin had reassigned

Love-Lane for her speech on racial issues, I would unreservedly join

the majority’s opinion. Instead what the record reveals, and what the

district court found, is that Love-Lane was reassigned for speaking

out on a number of issues, most of which had nothing to do with race,

in such an intemperate manner that it disrupted the school in which

she was working. A host of teachers and administrators — female and

male, African-American and Caucasian — found Love-Lane’s man34 LOVE-LANE v. MARTIN
ner harsh and uncivil. By turning a blind eye to this evidence, the

majority’s decision will handicap principals and superintendents who

labor to create environments in which education can move forward.

The ultimate cost, however, will be borne by students of all races and

walks of life who will be denied the opportunity for more effective

learning. 

Part I of this dissent demonstrates the correctness of the district

court’s view that the personal relationship between Brenda Blanchfield and DeComa Love-Lane had become so contentious as to

require a new management team at Lewisville Elementary. Part II

explains why the majority is mistaken in concluding that Love-Lane

has a First Amendment claim for retaliatory discharge, and details the

adverse effects for public schools that flow from the majority’s decision. Part III describes the more troubling consequences of the majority’s second blow to public school administration — that of denying

even qualified immunity to principals and superintendents for their

ordinary personnel decisions. Part IV discusses the implications of the

majority’s analysis not only for school administration, but for school

discipline. Finally, Part V reflects briefly on the burdens that litigiousness is imposing on public education vis-á-vis other forms of education. For as important as private and home schooling are, America

will never fulfill the true promise of pluralism without a strong public

education system.

I.

A look at what transpired at Lewisville Elementary School between

1995 and 1998 makes clear that a simple personality dispute has been

misleadingly cloaked in constitutional clothing. Taking the facts in

the light most favorable to DeComa Love-Lane, as we must, does not

mean ignoring facts unfavorable to Love-Lane that are not in dispute.

Teachers and administrators, whatever their gender or race, found

Love-Lane’s demeanor unprofessional and contentious. By failing to

consider this uncontroverted evidence, the majority converts an ordinary personnel decision into a constitutional cause of action. 

In the summer of 1995, Dr. Donald Martin, Superintendent of the

Winston-Salem Forsyth County Schools, named DeComa Love-Lane

an assistant principal at Lewisville Elementary in Lewisville, North

LOVE-LANE v. MARTIN 35
Carolina. During Love-Lane’s three-year tenure at Lewisville, she

came into conflict with both teachers and other administrators, especially Brenda Blanchfield, Lewisville’s principal and Love-Lane’s

immediate superior. It was this breakdown in Love-Lane’s working

relationships, and not Love-Lane’s exercise of speech protected by

the First Amendment, that drove Martin’s decision to reassign her to

a teaching position.

Love-Lane’s difficulties at Lewisville began during the 1996-97

school year as a result of Love-Lane’s opposition to the school’s

time-out room. Lewisville’s time-out room was an intermediate step

between in-class discipline and out-of-school suspension for students

whose classroom behavior was disruptive. It was similar to those of

many other schools, and its operation was governed by extensive procedures and overseen by a discipline committee. J.A. 269, 329-30,

744-47, 1267. The time-out room was recommended by a School

Improvement Team composed of teachers and parents, and its use

was approved by Blanchfield. J.A. 1266. It was also voted on and

endorsed by Lewisville’s entire staff at a faculty meeting in September 1996. J.A. 740, 1266. Love-Lane objected at the meeting that the

room adversely impacted minority students. After the meeting several

teachers complained to Blanchfield that Love-Lane had called them

"unprofessional" for supporting the program. J.A. 131, 740, 823, 955,

1153. Love-Lane continued to oppose the program even after the

meeting. 

This dispute over use of the time-out room may have foreshadowed

future conflict between Love-Lane and others at Lewisville, particularly Blanchfield. However, it was not nearly so central to the ongoing conflict as Love-Lane suggests. In fact, relations between

Blanchfield and Love-Lane steadily deteriorated throughout the

spring of 1997 over a host of other issues that had little to do with

disciplinary practices or their impact on minority students. These

issues included bus loading and unloading, a first-grade teacher’s

absence from the playground during recess, a kindergarten teacher’s

treatment of her students, a disagreement within the custodial staff,

and Blanchfield’s annual evaluation of Love-Lane. J.A. 858-59, 866-

69, 968-69, 1252. To take but one example, Love-Lane disagreed

with Blanchfield’s instructions about where Love-Lane should stand

during bus loading and unloading. When Blanchfield was not present,

36 LOVE-LANE v. MARTIN
Love-Lane ignored her instructions and did not stand where Blanchfield had requested. J.A. 187-88 

Many of these administrative disagreements were aired in increasingly angry memos sent by Love-Lane and Blanchfield to each other,

and copied to Superintendent Martin and Assistant Superintendent

Ron Montaquila. J.A. 858-60, 866, 868-69. Before long Montaquila

was called in to mediate, and he sat in on numerous conferences at

the disputants’ request. These conferences typically lasted several

hours, and, according to Montaquila, they usually degenerated into

lengthy harangues by Love-Lane about her frustration with Blanchfield. J.A. 1002-03. Montaquila relayed to Martin both the substance

of the conferences and their ineffectiveness in improving relations

between Blanchfield and Love-Lane. J.A. 1004. 

Martin then intervened personally beginning late in the spring of

1997, and his observations over the course of several meetings were

the same as Montaquila’s. J.A. 968-69. In November 1997, Amanda

Bell took over for Montaquila as the assistant superintendent in

charge of Lewisville. Like Montaquila and Martin, Bell had numerous

lengthy meetings with Blanchfield and Love-Lane. And like Montaquila and Martin, Bell observed that Love-Lane frequently voiced

disagreement with Blanchfield in a disrespectful and intemperate

manner; she defied Blanchfield’s instructions on even minor matters;

and she did not respond favorably to Martin’s constructive criticism.

J.A. 289. These were the reasons that Bell, herself an AfricanAmerican female, concluded that Love-Lane was having problems at

Lewisville — not because Love-Lane was speaking out on minority

issues. J.A. 290.

Martin’s concerns about Love-Lane’s effectiveness as an administrator were amplified on the last day of school before the 1997 summer recess, when Love-Lane and a teacher, Angie Anderson, were

involved in a heated confrontation in the hallway outside Love-Lane’s

office. Their disagreement concerned whether Anderson had questioned one of Love-Lane’s decisions in regard to some teaching materials. Three separate investigations of the incident were conducted by

Blanchfield; Montaquila; and David Fairall, the human resources

manager for the school system. All three concluded that both LoveLane and Anderson had used profanity and otherwise acted unprofesLOVE-LANE v. MARTIN 37
sionally. When Love-Lane objected to these findings, Martin

appointed John Siskind, a paralegal for the school district, to perform

an independent investigation. J.A. 968. After conducting his own

interviews, Siskind agreed with Blanchfield, Montaquila, and Fairall

that Love-Lane had used profanity and behaved inappropriately. J.A.

1030, 1033-35. At that point, after four investigations had reached

precisely the same conclusion, Martin placed a letter of reprimand in

Love-Lane’s file. J.A. 975A. 

The incident between Love-Lane and Anderson only further

strained the ability of Blanchfield and Love-Lane to get along. In

October 1997, Martin authored a memo to them that addressed the

breakdown in their working relationship and its adverse effect on the

administration of Lewisville Elementary. J.A. 473. Rather than assign

blame, Martin charged Blanchfield and Love-Lane with rebuilding

their relationship and achieving the loyalty, trust, and mutual respect

necessary to function effectively as an administrative team. J.A. 473.

Unfortunately, Love-Lane’s working relationships with others in

the school system further declined during the 1997-98 school year.

For example, in January 1998 Love-Lane had a meeting with the six

fifth-grade teachers at Lewisville. The teachers came away so upset

by Love-Lane’s tone during the meeting that the entire group

requested they be assigned a new administrator for the rest of the

school year. J.A. 728-29. When Blanchfield repeatedly declined their

request, several of the teachers took the unusual step of appealing to

Martin himself. J.A. 970-71. In the process, the teachers complained

about Love-Lane’s poor communication on issues like a grant proposal, school-sponsored sleepover, and food drive. J.A. 725, 727-31,

957-58. Notably, as with the earlier disputes between Blanchfield and

Love-Lane over administrative tasks like bus duty, these disagreements had nothing to do with Love-Lane’s speech on racial issues. 

By this point, Martin had devoted considerable time and energy to

Love-Lane’s disagreements with others at Lewisville. Neither Bell

nor Montaquila felt that Love-Lane had responded encouragingly to

their suggestions for improvement, and this squared with Martin’s

own observations. Martin then did precisely what he had outlined in

his October 1997 memo to Blanchfield and Love-Lane: he reorganized the administrative team at Lewisville Elementary, because

38 LOVE-LANE v. MARTIN
Blanchfield and Love-Lane had been unable to establish an effective

working relationship. Blanchfield was transferred to the central office,

receiving a substantial reduction in her salary. J.A. 971-72. And

Love-Lane was reassigned to a teaching position for the 1998-99

school year. J.A. 971, 986. 

Love-Lane filed a formal grievance with the school board in

response to her reassignment. The board specifically found that Martin’s decision was amply supported by the performance evaluations of

Love-Lane, the results of the investigations into the incident between

Love-Lane and Anderson, and Love-Lane’s failure to achieve the

standards set out in Martin’s October 1997 memo. J.A. 281-84, 327.

Love-Lane did not present the board with any evidence that her reassignment was in retaliation for her speech on racially charged issues.

J.A. 278-79. Rather, all of the evidence submitted to the board by

both Love-Lane and Martin indicated that Love-Lane believed she

was being harassed and sabotaged by Blanchfield, while Blanchfield

believed she was being disrespected and undermined by Love-Lane.

J.A. 278-81. In short, this was a bitter and acrimonious dispute

between two employees. Martin wanted them to function as a team,

and when they proved unable to do so, he did what sensible employers often do: he lessened their professional responsibilities. It is

important moreover that Martin in no way singled out Love-Lane for

reassignment. Instead, he sought to restructure the entire administrative team.

II.

The doctrine of qualified immunity exists precisely so that government officials can make reasonable discretionary decisions without

the paralyzing fear of legal liability. See, e.g., Pinder v. Johnson, 54

F.3d 1169, 1173 (4th Cir. 1995) (en banc) ("Qualified immunity thus

allows officials the freedom to exercise fair judgment. . . ."). Qualified immunity therefore protects government officials "as long as

their actions could reasonably have been thought consistent with the

rights they are alleged to have violated." Anderson v. Creighton, 483

U.S. 635, 638 (1987). In addressing this question, we do not impose

on officials "a duty to sort out conflicting decisions or to resolve subtle or open issues. ‘Officials are not liable for bad guesses in gray

areas; they are liable for transgressing bright lines.’" McVey v. Stacy,

LOVE-LANE v. MARTIN 39
157 F.3d 271, 277 (4th Cir. 1998) (quoting Maciariello v. Sumner,

973 F.2d 295, 298 (4th Cir. 1992)).

Simply put, Martin’s decision to reassign Love-Lane to a teaching

position transgressed no bright line; it violated no clearly established

constitutional right. Indeed, it is unlikely that Martin’s decision to

reassign Love-Lane violated her right to free speech at all. To determine whether Love-Lane even has a cause of action under the First

Amendment for retaliatory demotion, we must balance Love-Lane’s

interest in commenting upon matters of public concern against the

school system’s interest in providing effective educational services at

Lewisville Elementary. McVey, 157 F.3d at 277 (quoting Pickering v.

Board of Educ., 391 U.S. 563, 568 (1968)); Thus we must ascertain

(1) whether Love-Lane was speaking as a citizen upon a matter of

public concern or as an employee upon a matter of personal interest;

(2) whether Love-Lane’s interest in speaking on the matter of public

concern outweighed the school system’s interest in providing effective educational services; and (3) whether Love-Lane’s speech was a

substantial factor in Martin’s decision to reassign her. Id. at 277-78.

I shall address the three prongs of the inquiry in turn. 

A.

The first question is whether Love-Lane was even speaking as a

citizen upon a matter of public concern or rather as an employee upon

a matter of personal interest. Insofar as Love-Lane objected to Lewisville’s use of the time-out room because of its alleged discriminatory

impact on minority students, she may well have been speaking on a

matter of public concern. Yet any administrator or teacher is likely

over time to speak out on some matter of concern to local parents and

residents. This ought not convert a routine personnel decision into a

constitutional infraction. After all, Love-Lane expressed herself on a

whole host of issues, from bus duty to her own performance evaluation, that were purely internal matters of school administration. 

In fact, it was Love-Lane’s expression on these administrative matters, not her opposition to the time-out room, that drove her difficulties at Lewisville. The majority’s claim that "teachers and

administrators who took offense at Love-Lane’s manner or tone also

took offense at the content of her speech opposing race discrimina40 LOVE-LANE v. MARTIN
tion" finds no support in the record. Ante at 17. For instance, in the

four pages of complaints about Love-Lane presented by the fifthgrade teachers to Blanchfield and then Martin, the teachers do not

even mention Love-Lane’s opposition to the time-out room or any

other disciplinary practice. J.A. 727-28, 730-31. In the extensive documentation compiled by the four separate investigations of the argument between Love-Lane and Angie Anderson, there is no hint that

Love-Lane’s opposition to any disciplinary practice, including the

time-out room, was a factor in the confrontation. J.A. 845-47, 877-79,

943-45, 1033-35. In Love-Lane’s many lengthy memos to Blanchfield, Martin, and Montaquila throughout 1997, she does not include

her opposition to any disciplinary practice as a source of friction

between her and others at Lewisville. J.A. 858-60, 866-67, 871-72,

1011, 1251. 

Indeed, even as late as the board hearing on Love-Lane’s reassignment, Love-Lane and her counsel maintained that the disagreements

between Blanchfield and Love-Lane were "personal in nature" and

that Love-Lane’s career "was being sabotaged by Ms. Blanchfield."

J.A. 278-79. Love-Lane never argued, and thus the board never considered, that she was being retaliated against for having spoken out

on allegedly discriminatory practices at Lewisville. For Love-Lane to

argue now that her reassignment resulted from her opposition to the

time-out room, she must assign hugely disproportionate weight to the

fraction of her speech that touched on a matter of public interest. Portraying Love-Lane’s speech as primarily of public concern is more the

product of counsel’s post-hoc creativity than of any actual events at

Lewisville.

The majority gets it backward, then, when it says the dissent’s

focus is too limited. See ante at 15. The point is that Love-Lane’s

speech on allegedly discriminatory practices was but a small part of

her tenure at Lewisville. When one examines the "context" of LoveLane’s speech "as revealed by the whole record," it could hardly be

clearer that Love-Lane and others were at odds over a slew of matters

having no connection to public concerns. Connick v. Myers, 461 U.S.

138, 147-48 (1983). Relationships foundered and deteriorated over

the day-to-day details of school administration, and they became poisoned to the point where someone in charge simply had to make a

change. 

LOVE-LANE v. MARTIN 41
B.

Even if one were to overlook the fact that the bulk of Love-Lane’s

speech bore no relation to matters of public concern, Love-Lane’s

interest in expressing herself still must be weighed against the interest

of the Board and the Superintendent in "discipline, morale and good

working relationships" at Lewisville Elementary. Cromer v. Brown,

88 F.3d 1315, 1328 (4th Cir. 1996); see also Pickering v. Board of

Educ., 391 U.S. 563, 568 (1968). The district court properly found

that Martin’s interest in maintaining an orderly, effective administration at Lewisville outweighed Love-Lane’s speech interest. 

Indeed, the district court conducted an extensive review of the

record in this case, and it emphatically concluded that Love-Lane had

proceeded in a confrontational manner disruptive to Lewisville’s

operation. According to the district court, Love-Lane 

antagonized and insulted those who used the Time-Out

Room and refused to assist the Time-Out Room coordinator

in its administration. She failed to develop effective working

relationships with other staff, driving some to appeal to the

superintendent to replace her. She used profanity in an inappropriate confrontation with a teacher. She resisted feedback

or constructive criticism. She repeatedly challenged her

principal’s judgment. She refused to rebuild an effective

working relationship with Blanchfield. . . . 

In the face of all this, it simply blinks reality to claim that LoveLane’s difficulties with others at Lewisville "did not affect the ability

of administrators and teachers at Lewisville to deliver their educational services." Ante at 18. When Blanchfield and Love-Lane were

constantly at each other’s throats; when Love-Lane and Anderson

were shouting at each other in the hallways; or when an entire group

of teachers were complaining that they had been repeatedly undermined by Love-Lane, the effective operation of Lewisville Elementary had given way to internal divisiveness. And that is to say nothing

of the time and energy that Martin, Bell, and Montaquila each had to

devote to the incessant conflict at Lewisville. In fact, in his October

1997 memo to Blanchfield and Love-Lane, Martin wrote that theirs

42 LOVE-LANE v. MARTIN
was the most acrimonious and divisive conflict between two administrators he had ever seen. J.A. 976.

In the face of such protracted infighting, Martin concluded that the

effective administration of Lewisville was being hampered. He did

not jump to this conclusion, and he did not assign either Blanchfield

or Love-Lane exclusive blame. He simply believed that the situation

had to be changed. Martin’s professional judgment in this regard is

entitled to respect. "When close working relationships are essential to

fulfilling public responsibilities, a wide degree of deference to the

employer’s judgment is appropriate." Connick v. Myers, 461 U.S.

138, 151-52 (1983) (emphasis added). We need not rely on Martin’s

subjective judgment that Love-Lane’s speech harmed cohesiveness

and efficiency at Lewisville. Rather, there was ample objective evidence that underpinned Martin’s judgment and on which the district

court relied.

The majority shows no deference at all to Martin’s judgment,

largely because it focuses only on the disruption caused by the substance of Love-Lane’s speech, and not on the disruption caused by

Love-Lane’s antagonistic manner. Yet in weighing the interests of

Love-Lane and the school system, Love-Lane’s speech "[is] not [to]

be considered in a vacuum; the manner, time, and place of [LoveLane’s] expression are relevant, as is the context in which the dispute

arose." Rankin v. McPherson, 483 U.S. 378, 388 (1987) (emphasis

added). We have repeatedly balanced the respective interests not

merely in terms of the "subject" on which the employee speaks, but

also in terms of the "manner, time, and place" in which an employee

elects to express himself. DiMeglio v. Haines, 45 F.3d 790, 805-06

(4th Cir. 1995); see also Edwards v. City of Goldsboro, 178 F.3d 231,

247 (4th Cir. 1999). 

The majority’s narrow focus is thus out of step with decisions of

the Supreme Court, of our own court, and of our sister circuits, which

have consistently found that employers are not required to ignore the

intemperate tone or confrontational manner in which employees may

choose to express themselves. See, e.g., Craven v. University of Colorado Hosp. Auth., 260 F.3d 1218, 1228-29 (10th Cir. 2001) (relying

on abrasive, offensive manner of employee’s speech); Leary v.

Daeschner, 228 F.3d 729, 738 (6th Cir. 2000) (noting disruptive manLOVE-LANE v. MARTIN 43
ner of teachers’ speech, including yelling at colleagues and consistently questioning the principal’s authority); Hansen v. Soldenwagner,

19 F.3d 573, 577 (11th Cir. 1994) ("Here, the outcome of a Pickering

balance is especially uncertain because the manner of Hansen’s

speech was vulgar, insulting, and defiant."); Germann v. City of Kansas City, 776 F.2d 761, 764-65 (8th Cir. 1985) (discussing harsh and

distrustful tone of employee’s letter as important factor in Pickering

balancing); McBee v. Jim Hogg County, Tex., 730 F.2d 1009, 1017

(5th Cir. 1984) (en banc) (considering whether employee’s speech

was "sufficiently hostile, abusive or insubordinate as to disrupt significantly the continued operation of the [employer’s] office"). 

It makes little sense to consider whether the substance of LoveLane’s speech harmed morale, close working relationships, or institutional efficiency, and yet not consider whether her tone or manner did

precisely the same thing. "[T]he employing agency’s institutional efficiency may be threatened not only by the content of the employee’s

message but also by the manner, time, and place in which it is delivered." Givhan v. Western Line Consolidated School Dist., 439 U.S.

410, 415 n.4 (1979). How one says something, in addition to simply

what one says, can undermine the morale and close working relationships essential to a productive workplace. 

Of the dozens of witnesses whose statements appear in the record,

not a single member of Lewisville’s administration or the school system’s central office says that Love-Lane acted professionally. As a

result, the majority relies primarily on Love-Lane’s own assertions

that she never acted unprofessionally, but Love-Lane’s assertions are

entirely unsupported by the record. Four investigations of the Anderson incident concluded that Love-Lane had acted unprofessionally;

her principal and the faculty had been alienated by a series of incidents having nothing to do with race; and of course every administrator who intervened at Lewisville, regardless of their gender or race,

found Love-Lane’s tone and demeanor inappropriately hostile. The

majority does not dispute any of this evidence; it simply ignores it.

The majority instead repeatedly points out that this case arises on

a motion for summary judgment. See ante at 12, 15, 17, 19 -20, 22.

And on that, we certainly agree. In ignoring the wealth of undisputed

facts, however, the majority accords little respect to the record or to

44 LOVE-LANE v. MARTIN
the views of school administrators. See, e.g., Connick, 461 U.S. at

151-52 (according "a wide degree of deference" to school officials’

views). Only by failing to consider the way in which Love-Lane

spoke can the majority avoid what was obvious to the school system’s

administrators and to the district court: that the manner in which

Love-Lane expressed herself served to "disrupt [Lewisville], undermine [Blanchfield’s] authority, and destroy close working relationships." Connick, 461 U.S. at 154.

C.

Thirdly and finally, the majority cannot demonstrate that LoveLane’s speech was a substantial factor in her reassignment. None of

the evidence marshalled by the majority establishes that Love-Lane

was targeted as a result of her stance on allegedly discriminatory

practices. See ante at 20-21. Blanchfield did lower Love-Lane’s evaluations over time, particularly in the area of communication skills, but

that was because Love-Lane had increasingly clashed with members

of the faculty. And Blanchfield did consider Love-Lane’s "continued

vocal opposition to [Lewisville’s] implementation of the Time-Out

Room as blatant disrespect for [Blanchfield] . . . and [Lewisville’s]

School Improvement Team." Yet Love-Lane was protesting a program that Blanchfield individually and the faculty collectively had

approved. It had been operating for two years as a result of the combined efforts of teachers, parents, and administrators. By this point,

Blanchfield might reasonably expect that a member of her own

administrative team stop openly attacking a program that she, the faculty, and the local community had supported. Blanchfield was upset

with Love-Lane not for the substance of her views, which might well

have been communicated in any number of constructive ways. Rather,

Blanchfield was upset that Love-Lane seemed intent on continually

and confrontationally undermining Blanchfield’s authority with her

own staff and the local community.

Regardless, focusing on the disputes between Blanchfield and

Love-Lane misses the real point. None of this evidence demonstrates

that Martin retaliated against Love-Lane for her speech. While Martin

did consider Blanchfield’s evaluations of Love-Lane, he also considered all of the incidents on which those evaluations were predicated:

the investigations into the altercation with Angie Anderson, the

LOVE-LANE v. MARTIN 45
reports of Montaquila and Bell, the grievance filed by the fifth-grade

teachers, and his own first-hand observations of Love-Lane’s attitude

and demeanor. None of these incidents related to Love-Lane’s protest

against allegedly discriminatory practices. They related instead to

Love-Lane’s and Blanchfield’s unfortunate personality conflict — a

conflict which, to repeat, was resolved evenhandedly by removing

from Lewisville both of the offending parties.

III.

Whether Love-Lane has any viable claim under Pickering for retaliatory demotion is thus far from certain. The bulk of Love-Lane’s

speech did not involve matters of public concern; the school system’s

interest in the efficient administration of Lewisville was substantial

and entitled to deference; and Martin possessed ample grounds for

reassigning Love-Lane that had absolutely nothing to do with her

speech on racial issues. Yet even assuming that Love-Lane has established a free speech claim, her claim is hardly so clearly established

that Martin should have known he was acting unlawfully when he

reassigned her. 

My friends in the majority, however, would strip Martin even of

qualified immunity. This is incorrect. It was quite reasonable for Martin to conclude that Love-Lane’s "interest in First Amendment expression" did not outweigh the school system’s "interest in efficient

operation of the workplace." Goldstein v. Chestnut Ridge Volunteer

Fire Co., 218 F.3d 337, 352 (4th Cir. 2000) (quoting Hanton v. Gilbert, 36 F.3d 4, 6-7 (4th Cir. 1994)). "Just as an employee has a right

to speak — even at work — public employers have the right to run

efficient, functional operations." Id. at 351. This is especially true

since "only infrequently will it be clearly established that a public

employee’s speech on a matter of public concern is constitutionally

protected, because the relevant inquiry requires a particularized balancing that is subtle, difficult to apply, and not yet well-defined."

DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995) (internal quotations omitted). 

The district court properly found that the difficult balance sought

here — measuring Love-Lane’s free speech interest against the school

district’s interest in the efficient operation of its schools — was any46 LOVE-LANE v. MARTIN
thing but clearly established. While "‘there need not be a prior case

directly on all fours with the facts presented to the official,’" it must

be clear that "in light of pre-existing law, the unlawfulness of the

challenged action was apparent to the official." Cromer v. Brown, 88

F.3d 1315, 1325 (4th Cir. 1996) (quoting Pinder v. Johnson, 54 F.3d

1169, 1173 (4th Cir. 1995)). 

Yet pre-existing law supported the legality of Martin’s decision.

The disruptiveness of Love-Lane’s conduct gave Martin every reason

to believe that the Pickering balance swung in the school system’s

favor. Indeed, what the majority deems clearly established is actually

a sharp departure from our precedents. For instance, in Cromer we

denied qualified immunity to a sheriff who had allegedly retaliated

against a deputy for protesting racial discrimination within the sheriff’s department. Cromer, 88 F.3d at 1331. The deputy was one of

over thirty minority law enforcement officers who had slipped a private letter alleging racial discrimination under the sheriff’s door. Id.

at 1320 & n.2. In performing the Pickering balancing test, we specifically relied upon the fact that the officers’ concerns "were presented

in a non-confrontational way that did not appreciably affect the sheriff’s efficiency interests." Id. at 1330 n.11. Here, in contrast, LoveLane’s concerns were presented in a confrontational way that disrupted Lewisville and soured working relationships with Blanchfield,

Martin, Montaquila, Bell and much of Lewisville’s faculty. 

In short, at the time Martin decided to reassign Love-Lane in 1998,

prior cases would not have given him any reason to believe that he

was acting unlawfully — much less that his unlawfulness was clearly

established. The Supreme Court’s prior case law, not to mention our

own, did not require Martin to ignore reports of obscenity-laden

shouting matches in Lewisville’s hallways; widespread complaints

from his teachers, and indeed his own subordinates, about LoveLane’s unprofessional manner; and evidence of a bitter feud between

members of Lewisville’s administrative team. Had Martin done nothing, and allowed the situation at Lewisville to deteriorate further, he

would have been an ineffectual school superintendent.

One cannot help but wonder what the majority would now require

of superintendents like Martin. All told, Martin waited for two years,

conducted innumerable conferences and investigations, and personLOVE-LANE v. MARTIN 47
ally involved himself in attempts at improvement, while the situation

at Lewisville steadily declined despite his efforts. What exactly are

school administrators in Martin’s shoes henceforth supposed to do?

The majority notes vaguely that they should "hear out" someone’s

"concerns," ante at 26-27, but that is exactly what Martin did — not

just once, but over and over and over again. Administrators like Martin may be forgiven, then, for doubting that they "will not be hindered

by today’s decision." Ante at 27. Because the Pickering balance is

itself uncertain, the denial of qualified immunity to the defendant

leaves school administrators in a sea of indeterminacy. The majority

has reached the point where litigation outcomes are so uncertain, that

the prospect of liability deprives those in positions of responsibility

of the chance to take steps that may demonstrate educational leadership and earn a community’s respect.

IV.

The majority’s decision thus deals public education a double blow.

It not only strikes the Pickering balance against school principals and

superintendents, but denies them qualified immunity as well. It ought

not be necessary to catalog the harms done to public education by the

majority’s one-two punch, except that the majority disavows that its

decision will do any such harm. See ante at 26-27. In fact, stripping

Martin of qualified immunity for his decision to reassign a pair of

squabbling administrators begins by harming our circuit’s superintendents, whose reasonable personnel decisions will now increasingly be

the subject of federal lawsuits. But it ends by harming our circuit’s

children and teachers, who depend on strong administrators for collegial and orderly schools that produce lessons rather than lawsuits. 

As I have explained, I believe that this case involves little more

than a poisonous personality conflict. The majority believes something else. According to the majority, this case is not about LoveLane’s inability to get along with others; it is instead about LoveLane’s outspoken opposition to a disciplinary program that had been

approved by Lewisville’s parents, teachers, and administration. See

ante at 12. If we take the majority on its own terms, we ought indeed

to be troubled. There is no question that Love-Lane had the opportunity to voice her objections, which simply did not persuade others at

Lewisville. And there is no question that Love-Lane could have made

48 LOVE-LANE v. MARTIN
valuable contributions to life and disciplinary practice at Lewisville

in any number of constructive ways. But communities like Lewisville

should be able to implement their disciplinary decisions, without the

unremitting opposition of the very administrators charged with carrying out those decisions. Instead, localities will now find their efforts

at disciplinary improvement the subject of litigation. 

As any school teacher knows, this is regrettable. Keeping order in

our nation’s schools is among our most pressing educational concerns. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 339 (1985)

("Maintaining order in the classroom has never been easy, but in

recent years, school disorder has often taken particularly ugly forms:

drug use and violent crime in the schools have become major social

problems."); People v. Pruitt, 662 N.E.2d 540, 545 (Ill. App. Ct.

1996) ("We long for the time when children did not have to pass

through metal detectors on their way to class, when hall monitors

were other children, not armed guards, when students dressed for

school without worrying about gang colors."). Sadly, almost half of

America’s teachers report that they spend more time trying to keep

order in their classrooms than actually teaching students. See Jean

Johnson & Ann Duffett, Public Agenda, Where We Are Now: 12

Things You Need to Know About Public Opinion and Public Schools

16 (2003).

Of course, a breakdown in order and discipline leaves teachers

unable to educate and students unable to learn. See, e.g., T.L.O., 469

U.S. at 350 (Powell, J., concurring) ("Without first establishing discipline and maintaining order, teachers cannot begin to educate their

students."). And yet the consequences stretch far beyond missed

opportunities for learning, because the more severe a school’s disciplinary problems are, the more likely it is that the school’s students

will be victims of violent or even extremely violent encounters. See

Amanda K. Miller & Kathryn Chandler, U.S. Department of Education, Violence in U.S. Public Schools: 2000 School Survey on Crime

and Safety 20 (2003). It is not difficult to understand, then, why an

overwhelming number of Americans believe that the lack of student

discipline is a serious problem in their local schools. See Johnson &

Duffett, Where We Are Now at 26. 

The majority is unwilling to trust the efforts of public school systems to bring about disciplinary improvement. It places its bet not on

LOVE-LANE v. MARTIN 49
the ability of communities to devise their own solutions to disciplinary problems, but on litigation that serves to undercut those very same

solutions. The majority’s unwillingness to allow communities to recognize problems and address them through the medium of democracy

does serious harm to public education. It siphons off educational

efforts into depositions and scarce educational dollars into attorneys’

fees. It places accountability in the courts rather than in school boards

and the administrators answerable to them. "Returning schools to the

control of local authorities at the earliest practicable date is essential

to restore their true accountability in our governmental system." Freeman v. Pitts, 503 U.S. 467, 490 (1992). To be sure, democratic processes are robust and sometimes produce decisions that do not please

everyone. Yet to displace democracy too readily with judicial supervision is to discourage joint and voluntary efforts at improvement and

ultimately to miss out on the more generous possibilities of America.

The majority disclaims the novelty of its approach, as if its opinion

were nothing more than a routine application of Pickering and its

progeny. See ante at 33, 27. With all respect, this is simply not the

case. We have never accorded so little deference to the views of public school administrators or such short shrift to well-established principles of qualified immunity. Under the majority’s regime, courts, not

schools themselves, will have the final word on questions of school

discipline. And with lawsuits waiting in the wings, principals and

superintendents will be reluctant to do their part in resolving disciplinary problems or in reconstituting dysfunctional administrative

teams. 

But nowhere will the effects of this litigation be felt more severely

than on the ability of educators to set expectations for their students.

Only by establishing such expectations can schools bring out the best

in children and give them every chance at success. But setting expectations requires order in public school systems and strong working

relationships between public school officials. It requires that school

authorities be able to set reasonable goals for their local administrators, who in turn set standards for the students they are charged with

educating. In short, expectations for an orderly environment go handin-hand with expectations for a creative and productive learning experience. To have litigation at every turn is the surest way to undercut

50 LOVE-LANE v. MARTIN
the standards that challenge students and the expectations that form

the essence of education itself.

V.

In the final analysis, even if we disagree with Martin’s personnel

actions, his educational philosophy, his view of school discipline, or

his feelings about the need for cooperative relations at the head of a

school within his district, that is a far cry from saying that he violated

clearly established federal law. In holding that he did, my fine colleagues have made a serious mistake.

Martin, like most teachers, principals, and superintendents, presumably entered the public school system to educate children, not to

engage in the debilitating litigation that this lawsuit has come to represent. If decisions like Martin’s are going to sow the seeds of federal

actions, school administrators will either be cowed into inaction or

they will seek the greener pastures of private schools, where education, not litigation, remains the top priority. I am well aware that

many children "do[ ] not have the option of going to a private school

or somewhere else," ante at 27, but the teachers and principals who

educate them do — and the majority is chasing them from public

schools.

That is a shame, because public education represents something

quite special in this country — the opportunity for Americans of all

races and ethnicities and backgrounds to prepare together for the challenges and responsibilities of citizenship. Public school systems

deserve the best this nation has to offer. But the best educators have

other opportunities, both within education and without, and the inability to pursue learning without lawsuits is driving them away from

where America needs them most. To eviscerate the doctrine of qualified immunity, as the majority has done here, is to subject public

schools uniquely to the omnipresent spectre of litigation, to the detriment of the children and communities they were intended to serve. I

commend and would affirm the judgment of the district court.

LOVE-LANE v. MARTIN 51