Eаrl F. COLE, Plaintiff-Appellee, v. BUCHANAN COUNTY SCHOOL BOARD; Steve Hamro, III, Individually and in his official capacity as Chairman and member of the Buchanan County School Board; Clarence Brown, Jr., Individually and in his official capacity as a member of the Buchanan County School Board; Bill Crigger, II, Individually and in his official capacity as a member of the Buchanan County School Board; Rhonda McClanahan, Individually and in her official capacity as a mеmber of the Buchanan County School Board, Defendants-Appellants.
No. 08-1105
United States Court of Appeals, Fourth Circuit
May 14, 2009
328 Fed. Appx. 204
Quillin claims that Fleet‘s rapid filing of its motion for summary judgment, less than two months after all of the defendants had filed their Answers, precluded him from being able to conduct discovery. “Generally speaking, ‘summary judgment [must] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.‘” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). However, Quillin failed to file a
Harrods, 302 F.3d at 244. Though it may sometimes be appropriate to overturn a grant of summary judgment in the absence of a
IV.
For the reasons stated above, the judgment of the district court is
AFFIRMED.
Before DUNCAN, Circuit Judge, ROBERT J. CONRAD, Jr., Chief United States District Judge for the Western District of North Carolina, sitting by designation, and THOMAS D. SCHROEDER, United States District Judge for the Middle District of North Carolina, sitting by designation. Reversed and remanded by unpublished opinion. Judge DUNCAN wrote the opinion, in which Judge CONRAD and Judge SCHROEDER joined.
Reversed and remanded by unpublished opinion. Judge DUNCAN wrote the opinion, in which Judge CONRAD and Judge SCHROEDER joined.
Unpublished opinions are not binding precedent in this сircuit.
DUNCAN, Circuit Judge:
In October 2006, the Buchanan County School Board (“Board“) voted to ban Earl F. Cole, a reporter, from Buchanan County school property with certain exceptions. Cole brought a claim under
According to undisputed facts on the record, several incidents preceded the Board‘s decision to ban Cole from Buchanan County school property:
- In 2003, Cole entered an elementary school building and took photos during the school day without reporting to the principal‘s office. Cole later claimed that he was on his way to sign in. J.A. 65-66; 91.
- On the same visit, Colе interviewed one or more students in the school building during school hours. J.A. 65-66; 91. The assistant principal reported both of these incidents to the school administration.
- On October 2, 2006, the principal of another elementary school, Melanie Hibbitts, observed Cole, who had not signed in,2 standing among the trees in front of the school during school hours. When questioned by Ms. Hibbitts, Cole claimed he was there to photograph the fall decorations. Several parents called the school to voice their concern about seeing Cole on the school grounds with a camera when their children were being dropped off. Ms. Hibbitts made Superintendent Justus aware of the incident. J.A. 73-74.
- Later that same month, on October 13, 2006, a teacher saw Cole in the school‘s parking lot. When Ms. Hibbitts went out and questioned Cole, Cole claimed that he was there to retаke pictures of the fall decorations because the previous ones had not turned out. He had not signed in. He did not take any pictures of the decorations while Ms. Hibbitts was there. Parents again expressed concern about Cole‘s presence on school grounds. And Ms. Hibbitts again advised school administration of the incident. J.A. 74.
- On October 20, 2006, Cole published an article questioning why a Board member sent his child to a school outside the district he represented. The article included a photograph of the Board member dropping his child off at the school in question. J.A. 93. Cole had previously published other reports and opinions critical of the Board. J.A. 11.
- At least one Board member was aware that Cole had previously pleaded guilty to assault and battery. J.A. 71.
At its regularly scheduled meeting on October 23, 2006, the Board passed a rеsolution banning Cole from all Buchanan County school property. At a second meeting, on October 31, 2006, the resolution was amended. The amended resolution stated that Cole
has been observed on school property on multiple occasions hiding around trees and/or bushes either loitering and/or taking photographs and has repeatedly ignored posted signs informing all visitors that they must report to the offiсe upon arrival; and ... many parents and teachers have expressed concern about Mr. Cole‘s actions as aforesaid, especially when children are present while school is in session.
J.A. 27. In the amended resolution, the Board stated that it sought “to protect the students it serves from the unauthorized entry of third parties upon its premises and the taking of photographs without their or their parent(s)’ permissiоn.” J.A. 28. The Board resolved that Cole would be banned from school property “during operational hours while school is in session and students are present, except upon express written invitation or to attend a public board meeting or to exercise his right to vote.”3 Id.
Cole sued the Board and four of its members under
We review de novo a denial of a motion for summary judgment based on qualified immunity. Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir.1992). When a government official properly asserts qualified immunity, we have traditionally engaged in a two-step, sequential analysis. Under this analysis, we first look to the facts, viewed in the light most favorable to the nonmoving party, to determine if the defendant has violated the constitutional rights of the plaintiff (the “constitutional prong” of the qualified immunity analysis). Mazuz v. Maryland, 442 F.3d 217, 225 (4th Cir. 2006). If we determine that a constitutional right has been violated, only then do we assess whether the right was “clearly established” under existing law (the “clearly established prong” of the qualified immunity analysis). Id.
The Supreme Court has recently abandoned the requirement that courts adhere to this rigid two-tiered approach. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 812, 172 L.Ed.2d 565 (2009). The Supreme Court‘s decision in Pearson allows courts to grant qualified immunity without first deciding whether a violation occurred so long as the right claimed to be violated was not clearly established. Id. We find such analytic flexibility to be particularly appropriate here and focus our consideration on the clearly established prong.4
Generally, government officials performing discretionary functions are granted qualified immunity and are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutiоnal rights.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The right that an official is alleged to have violated must be “clearly established” not merely as a general proposition (in the way, say, the right to due process is clearly established), but “in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Sаucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (rev‘d in part on other grounds); Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 331 (4th Cir.2009). Stating the right in question at too broad a level of generality would destroy the balance that Supreme Court case law has sought to establish “between the interests in vindication of citizens’ constitutional rights and public officials’ effective performance of their duties by making it impossible for officials reasonably to anticipate when their conduct mаy give rise to liability for damages.” Anderson, 483 U.S. at 639, 107 S.Ct. 3034 (citations and quotations omitted).
The “clearly established” prong of the qualified immunity analysis turns on “the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.” Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quotations and citations omitted). “[I]n the light of pre-existing law, the unlawfulness must be apparent.” Anderson, 483 U.S. at 640, 107 S.Ct. 3034. A defense of qualified immunity, therefore, protects “all but the plainly incomрetent or those who knowingly violate the law.” Waterman v. Batton, 393 F.3d 471, 476 (4th Cir.2005) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
Having outlined the relevant portion of the qualified immunity analysis, we now consider the state of the law regarding the authority of school boards to control access to school grounds. Such an analysis is necessary to determine the objective reasonableness of the Board‘s conduct. Virginia law vests title to school property in the school boаrd.
A school board also has inherent authority to restrict access to the property that it controls. The Supreme Court, citing a long line of precedent, has held that “[t]here is no question that the District, like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated.”7 Lamb‘s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 390-91, 113 S.Ct. 2141, 124 L.Ed.2d 352, (1993). Members of the public do not have any constitutional right of access to public schools, Vukadinovich v. Bd. of Sch. Trs. of Mich. City Area Schs., 978 F.2d 403, 409 (7th Cir.1992), and public ownership does not automatically open up school grounds to the public, see United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990); Embry v. Lewis, 215 F.3d 884, 888 (8th Cir.2000). School officials have broad authority and responsibility for assuring that individuals conduct themselves appropriately while on school grounds. Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir.1999). A school board‘s authority encompasses the authority to remove or bar from entry an individual who threatens the safety of students or staff, or who disrupts the orderliness of the educational process. See Carey v. Brown, 447 U.S. 455, 470-71, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (holding that the Constitution does not leave state officials powerless to prevent conduct that disturbs the tranquility of schools); Goss v. Lopez, 419 U.S. 565, 582, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (holding that a school official‘s determination of the existence of an ongoing threat of disruption of the academic process can justify immediately removing a person from school property); Hall v. Bd. of Sch. Comm‘rs of Mobile County, Ala., 681 F.2d 965, 966 (5th Cir.1982) (holding that, in considering visitation policies, the court shared “the school officials’ basic concern that school administrators must have wide latitude in formulating and administering rules and regulations necessary to promote safety, discipline, order and the appropriate atmosphere for the educational goals of the school“). In carrying out its mandate to promote safety and order, therefore, a school board has broad authority to restrict access to school grounds.
Having considered the applicable legal framework, we turn to the district court‘s decision here. The district court stated that, under the clearly established prong of the qualified immunity analysis, “the appropriate inquiry is whether a reasonable school board member would have understood that it was unlawful to retaliate against a critical member of the local press by banning him from school property otherwise open to the public.” J.A. 104. The district court concluded that the conduct of the Board violated Cole‘s clearly established constitutional right when articulated in that fashion.
However, the district court improperly framed the issue. The appropriate inquiry here is whether a reasonable Board member could have believed that banning Cole from the Buchanan County school grounds was lawful, in light of clearly established law and the information Board members possessed. Cf. Anderson, 483 U.S. at 641, 107 S.Ct. 3034 (“The relevant question in this case, for example, is the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson‘s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed.“).
Statutory law and judicial precedent compel the conclusion that the Board has wide latitude in making determinations about access to school grounds. See
Because the conduct complained of did not violate a clearly established right, we reverse the district court‘s judgment and remand for dismissal of the action against the individual Board members.
REVERSED AND REMANDED.
DUNCAN
CIRCUIT JUDGE