                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-1105


EARL F. COLE,

                Plaintiff - Appellee,

           v.

BUCHANAN COUNTY SCHOOL BOARD; STEVE HAMRO, III, Individually
and in his official capacity as Chairman and member of the
Buchanan   County  School   Board;   CLARENCE  BROWN,   JR.,
Individually and in his official capacity as a member of the
Buchanan County School Board; BILL CRIGGER, II, Individually
and in his official capacity as a member of the Buchanan
County School Board; RHONDA MCCLANAHAN, Individually and in
her official capacity as a member of the Buchanan County
School Board,

                Defendants - Appellants.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.      James P. Jones, Chief
District Judge. (1:07-cv-00001-jpj-pms)


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


Before DUNCAN, Circuit Judge, Robert J. CONRAD, Jr., Chief
United States District Judge for the Western District of North
Carolina, sitting by designation, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.


Reversed and remanded by unpublished opinion.   Judge Duncan
wrote the opinion, in which Judge Conrad and Judge Schroeder
joined.
ARGUED: Jim H. Guynn, Jr., GUYNN, MEMMER & DILLON, PC, Salem,
Virginia, for Appellants.       Michael Allen Bragg, Abingdon,
Virginia, for Appellee.   ON BRIEF: Elizabeth K. Dillon, GUYNN,
MEMMER & DILLON, PC, Salem, Virginia, for Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

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

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

school property with certain exceptions.                        Cole brought a claim

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

individual members, alleging retaliation for the exercise of his

First Amendment rights.                The individual Board members moved to

dismiss based on qualified immunity. 1                     The district court denied

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

clearly established, we reverse.



                                              I.

     According         to       undisputed    facts        on   the    record,     several

incidents         preceded      the    Board’s      decision     to     ban     Cole    from

Buchanan County school property:

            • In 2003, Cole entered an elementary school building and

             took photos during the school day without reporting to

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

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

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

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



        1
            The Board itself cannot claim qualified immunity.




                                              3
          91.      The   assistant    principal   reported      both       of    these

          incidents to the school administration.

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

          school,    Melanie   Hibbitts,      observed    Cole,      who    had      not

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

          school    during   school    hours.     When    questioned            by   Ms.

          Hibbitts, Cole claimed he was there to photograph the

          fall decorations.      Several parents called the school to

          voice    their   concern    about   seeing     Cole   on    the       school


     2
      The parties dispute whether the Board’s visitor policy
requires an individual to sign in when on school grounds, but
not entering school buildings.     The official visitor policy of
the   Buchanan   County   School   Board,   policy  KK,   provides:
“Visitors are welcome in the schools.      They must report to the
administrative office for a pass.      Unauthorized persons . . .
will be requested to leave school grounds by the building
administrator.”    J.A. 118.    Superintendent Justus stated that
the policy applied to all school property (including grounds).
The Board did allow community use of the track, and, apparently
once   school   officials   came   to   recognize  parents,   these
individuals did not have to sign in to use it. J.A. 123.

     Signs at the schools announce the school visitor policies.
These signs are posted at or near the school entrances.      The
notice at one school states:    “All visitors must report to the
school   office   upon   entering  the   building.”     J.A.  90
(capitalization omitted).    At another school, entrance to the
building can only be gained through the use of an intercom, and
the sign inside the entrance states: “All visitors must report
to the office.”    J.A. 90 (capitalization omitted). Cole stated
that he did not think that the Board required him to sign in if
he was on school grounds but not entering school buildings.
J.A. 90; see also J.A. 92. For reasons we subsequently explain,
this dispute does not affect our analysis. See infra note 6 and
accompanying text.




                                        4
 grounds    with      a    camera    when    their    children      were     being

 dropped off.             Ms. Hibbitts made Superintendent Justus

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

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

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

 out and questioned Cole, Cole claimed that he was there

 to re-take pictures of the fall decorations because the

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

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

 Hibbitts      was    there.        Parents       again   expressed     concern

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

 Hibbitts      again       advised       school     administration      of     the

 incident.      J.A. 74.

• On   October        20,     2006,        Cole     published     an    article

 questioning why a Board member sent his child to a school

 outside       the    district       he     represented.         The    article

 included a photograph of the Board member dropping his

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

 previously published other reports and opinions critical

 of the Board.        J.A. 11.

• At   least    one       Board   member      was    aware   that      Cole    had

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

 71.




                                     5
      At its regularly scheduled meeting on October 23, 2006, the

Board passed a resolution banning Cole from all Buchanan County

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

resolution was amended.           The amended resolution stated that Cole

      has been observed on school property on multiple
      occasions hiding around trees and/or bushes either
      loitering and/or taking photographs and has repeatedly
      ignored posted signs informing all visitors that they
      must report to the office upon arrival; and . . . many
      parents and teachers have expressed concern about Mr.
      Cole’s actions as aforesaid, especially when children
      are present while school is in session.

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

sought “to protect the students it serves from the unauthorized

entry     of    third   parties   upon   its   premises   and   the   taking   of

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

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

property “during operational hours while school is in session

and students are present, except upon express written invitation

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

vote.” 3       Id.

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

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

against him for exercising his First Amendment right to publish


      3
      Cole addressed        the Board at this meeting regarding the
resolution.    After        Cole’s comments, the Board adopted the
amended resolution.




                                         6
critical     articles,   including         an    article   that   questioned     the

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

district school.      The individual Board members moved to dismiss

on summary judgment based on qualified immunity.                        The district

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

protected    by   qualified    immunity         because    Cole   had    established

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

and that the rights infringed upon were clearly established.

The Board members timely appealed.



                                          II.

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

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

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

asserts qualified immunity, we have traditionally engaged in a

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

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

nonmoving party, to determine if the defendant has violated the

constitutional      rights    of    the     plaintiff      (the   “constitutional

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

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

constitutional right has been violated, only then do we assess

whether the right was “clearly established” under existing law




                                           7
(the       “clearly    established     prong”   of   the   qualified       immunity

analysis).       Id.

       The Supreme Court has recently abandoned the requirement

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

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

decision in Pearson allows courts to grant qualified immunity

without first deciding whether a violation occurred so long as

the right claimed to be violated was not clearly established.

Id.        We   find   such    analytic   flexibility      to   be   particularly

appropriate       here   and   focus    our   consideration     on   the    clearly

established prong. 4



       4
      We note that the district court did not have the advantage
of the Supreme Court’s decision in Pearson when it engaged in
the traditional two-step analysis.   Still, we nevertheless are
skeptical that Cole’s First Amendment rights were in fact
chilled, as required to establish a First Amendment retaliation
claim. The following facts weigh against finding such chilling:
(1) Cole owned the newspaper he wrote for and acknowledged that
he could have assigned other reporters to cover stories
requiring entry onto school property; (2) Cole remained free,
consistent with the Board’s prohibition, to watch, or take
photographs, from the public spaces outside the school grounds;
(3) Cole was in no way inhibited by the prohibition from
interviewing individuals associated with the school off school
property or when school was not in session; and (4) reporters in
the “rough and tumble” political arena do not necessarily have a
remedy at law when government officials are unwilling to confer
information, see Baltimore Sun v. Ehrlich, 437 F.3d 410, 419
(4th Cir. 2006). As our decision is based on the fact that the
contours of Cole’s right were not clearly established, we need
not definitively resolve this issue of whether his First
Amendment rights were chilled.




                                          8
       Generally,            government       officials               performing       discretionary

functions 5 are granted qualified immunity and are “shielded from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights.”

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

an   official           is    alleged       to     have          violated       must     be   “clearly

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

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

more       particularized,            and    hence             more    relevant,       sense:            The

contours       of       the    right        must       be       sufficiently          clear       that    a

reasonable         official       would       understand              that     what    he     is    doing

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

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

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

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

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

would destroy the balance that Supreme Court case law has sought

to establish “between the interests in vindication of citizens’

constitutional           rights       and    .     .       .    public    officials’          effective

performance         of        their    duties          by        making      it    impossible            for

officials reasonably to anticipate when their conduct may give

       5
      Here, it is uncontested that the Board, in adopting the
resolution banning Cole from school property, was engaged in
such a discretionary function.




                                                       9
rise   to   liability    for    damages.”     Anderson,      483    U.S.    at    639

(citations and quotations omitted).

       The “clearly established” prong of the qualified immunity

analysis turns on “the objective legal reasonableness of the

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

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

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

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

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

immunity, therefore, protects “all but the plainly incompetent

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

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

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

       Having   outlined    the    relevant   portion        of    the   qualified

immunity     analysis,     we   now   consider      the    state    of     the    law

regarding the authority of school boards to control access to

school grounds.      Such an analysis is necessary to determine the

objective reasonableness of the Board’s conduct.                    Virginia law

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

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

educational mission, the school board is authorized to designate

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

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

board to restrict access to school property, providing in part


                                       10
that “[i]t shall be unlawful for any person . . . to enter upon

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

direction to vacate the property by a person authorized to give

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

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

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

trespass statute applies to school property.                    See Pleasants v.

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

the predecessor general trespass statute to school property).

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

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

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

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

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

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

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

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




       6
      Both Va. Code Ann. § 18.2-128 and Va. Code Ann. § 18.2-119
frame the school board’s authority in the disjunctive (i.e., the
authority can be exercised through either direct communication
or the posting of signs).          This phrasing renders any
discrepancies or disagreements about the posted notices and the
extent of school property they covered not germane to our
analysis of the Board’s authority to issue a directive to Cole
not to enter the school grounds.




                                          11
18.2-119.    Because title is vested in the school board, the

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

     A   school   board   also   has    inherent   authority   to   restrict

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

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

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

may legally preserve the property under its control for the use

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

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

public do not have any constitutional right of access to public

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

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

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

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

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

broad authority and responsibility for assuring that individuals

     7
      Since Cole is not alleging direct infringement of his First
Amendment rights by the Board’s ban (i.e., he was not seeking
access to the school grounds in order to engage in protected
speech activity), we need not enter into a forum analysis.     We
note, however, that public schools are not deemed public forums
simply because they are owned by the government.       See United
States v. Kokinda, 497 U.S. 720, 725 (1990).          For school
facilities to become public forums, school authorities must have
opened those facilities for “indiscriminate use by the general
public.”   Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267
(1988). With the possible exception of the school track, there
is no evidence here that school officials opened up the school
grounds for indiscriminate use by the general public.




                                       12
conduct     themselves        appropriately          while     on     school      grounds.

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

board’s authority encompasses the authority to remove or bar

from entry an individual who threatens the safety of students or

staff,    or    who   disrupts       the     orderliness        of    the    educational

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

(holding that the Constitution does not leave state officials

powerless to prevent conduct that disturbs the tranquility of

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

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

threat     of   disruption      of     the        academic     process      can    justify

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

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

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

the   court     shared   “the       school    officials’        basic       concern     that

school administrators must have wide latitude in formulating and

administering rules and regulations necessary to promote safety,

discipline,      order    and       the    appropriate         atmosphere         for    the

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

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

authority to restrict access to school grounds.




                                             13
                                               III.

       Having considered the applicable legal framework, we turn

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

stated       that,        under   the        clearly     established       prong       of     the

qualified immunity analysis, “the appropriate inquiry is whether

a reasonable school board member would have understood that it

was unlawful to retaliate against a critical member of the local

press by banning him from school property otherwise open to the

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

conduct       of     the     Board       violated      Cole’s      clearly       established

constitutional right when articulated in that fashion.

       However, the district court improperly framed the issue.

The    appropriate          inquiry      here    is    whether     a    reasonable          Board

member could have believed that banning Cole from the Buchanan

County       school        grounds       was     lawful,     in     light        of    clearly

established         law     and   the    information       Board       members    possessed.

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

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

question          whether    a    reasonable          officer     could    have       believed

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

established         law     and    the       information    the     searching         officers

possessed.”).

       Statutory law and judicial precedent compel the conclusion

that the Board has wide latitude in making determinations about


                                                14
access to school grounds.             See Va. Code Ann. § 18.2-128; Carey,

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

discretion is necessary for the Board to carry out its mandate

to protect students and ensure the proper functioning of the

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

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

Cole from school grounds, possessed the following information:

(1) parents had expressed concerns on multiple occasions about

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

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

during school hours while students were present and had taken

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

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

had written an article that was arguably critical of a Board

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

the school grounds raised concerns among school administrators,

and at least twice the principal of one school had questioned

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

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

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

access to school grounds and the factual information the Board

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

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

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


                                          15
the safety of the students and the integrity of the educational

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

member   certainly   could   have   believed   that   banning   Cole   from

school property was lawful.



                                    IV.

     Because the conduct complained of did not violate a clearly

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

remand for dismissal of the action against the individual Board

members.

                                                  REVERSED AND REMANDED




                                    16
