                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-2369


GREG BAILEY; JENNIFER BAILEY,

                Plaintiffs - Appellants,

          and

CRYSTAL MCGEE; DAVID EDMONDS, JR.; JILL EDMONDS,

                Plaintiffs,

          v.

VIRGINIA HIGH SCHOOL LEAGUE, INCORPORATED,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:11-cv-00035-JPJ-PMS)


Submitted:   June 15, 2012                   Decided:   July 18, 2012


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Hugh F. O’Donnell, CLIENT CENTERED LEGAL SERVICES OF SOUTHWEST
VIRGINIA, Norton, Virginia, for Appellants.       R. Craig Wood,
MCGUIREWOODS LLP, Charlottesville, Virginia; Aaron James Longo,
MCGUIREWOODS LLP, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               Greg and Jennifer Bailey appeal the district court’s

order    dismissing      their     complaint       against    the    Virginia     High

School League, Inc. (“VHSL”), for failure to state a claim, Fed.

R. Civ. P. 12(b)(6).              The Baileys sought to challenge VHSL’s

“transfer       rule,”     which     denied       their     son     eligibility    to

participate in interscholastic and athletic activities at the

school    of    their    choice.      The       district   court    granted    VHSL’s

motion to dismiss.         Finding no error, we affirm.

               We review de novo a district court’s grant of a motion

to dismiss.        E.I. du Pont de Nemours & Co. v. Kolon Indus.,

Inc., 637 F.3d 435, 440 (4th Cir. 2011).                      While a court, in

ruling on a Rule 12(b)(6) motion to dismiss, “must accept as

true all of the factual allegations contained in the complaint,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007), the complaint must

contain sufficient facts to state a claim that is “plausible on

its face.”        Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007).

               On appeal, the Baileys challenge the district court’s

statement in the dismissal order that it had considered “[t]he

facts, as set forth in the plaintiffs’ Complaint or as agreed by

the parties at oral argument.”                   The Baileys allege that this

statement       reflects    the    district       court’s    reliance     on    facts



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outside    the    complaint,        and    that       such    reliance       is    reversible

error.

            In deciding whether a complaint will survive a motion

to dismiss, a court evaluates the complaint and any documents

attached    or    incorporated        by    reference.              Sec’y    of    State    for

Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.

2007); Phillips v. LCI Int’l, Inc., 190 F.3d 609, 618 (4th Cir.

1999).      However,        the    district         court    cannot     go    beyond     these

documents    on    a    Rule      12(b)(6)          motion    without       converting     the

motion into one for summary judgment.                         Fed. R. Civ. P. 12(b),

12(d), 56.        Such a conversion is error where the parties have

not had a reasonable opportunity for discovery.                              Kolon Indus.,

637 F.3d at 448-49.

            “[S]tatements           by     counsel           that    raise        new    facts

constitute matters beyond the pleadings and cannot be considered

on a Rule 12(b)(6) motion.”                Id. at 449.         Here, we have reviewed

the record and found no facts raised at the hearing that were

not included in the complaint.                  Accordingly, this claim fails.

            The     Baileys        also     challenge          the     district         court’s

classification         of   VHSL    as     an       “organization,”         because      VHSL’s

corporate identity is important “in gauging how the edicts of an

independent      private       corporation           can    outweigh    the       fundamental

right of a parent to make decisions about the welfare of one’s

child.”     We reject this argument as it contradicts the Baileys’

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own description of VHSL in the complaint as, in essence, a state

actor.

             Finally,      the       Baileys      challenge         the    district    court’s

dismissal of their claim that the transfer rule interferes with

their fundamental right to make decisions in the best interest

of their son.           See Troxel v. Granville, 530 U.S. 57, 66 (2000)

(“[I]t cannot now be doubted that the Due Process Clause of the

Fourteenth Amendment protects the fundamental right of parents

to make decisions concerning the care, custody, and control of

their children.”)              Although “the Supreme Court has never been

called upon to define the precise boundaries of a parent’s right

to    control     a     child's       upbringing             and    education,”       C.N.     v.

Ridgewood Bd. of Educ., 430 F.3d 159, 182 (3rd Cir. 2005), it is

clear    that     the     right      is    neither        absolute         nor    unqualified,

Lehr v.    Robertson,          463    U.S.     248,      256       (1983)       (holding     that

constitutional           protection          is        available          for     parent-child

relationship in “appropriate cases”).                         See Littlefield v. Forney

Indep.    Sch.    Dist.,       268    F.3d     275      (5th       Cir.    2001)     (upholding

school    district’s       mandatory         school      uniform          policy);    Hooks    v.

Clark County Sch. Dist., 228 F.3d 1036, 1036 (9th Cir. 2000)

(upholding       state    statute         denying       speech      therapy       services     to

home-schooled children); Swanson v. Guthrie Indep. Sch. Dist.

No.   1-L,      135     F.3d    694    (10th          Cir.    1998)       (upholding       school

district’s full-time attendance policy); Herndon v. Chapel Hill-

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Carrboro     City     Bd.     of    Educ.,     89   F.3d    174     (4th      Cir.     1996)

(upholding         school     district’s         mandatory        community          service

program).

            The Baileys’ right to control individual components of

their     son’s       education,        including          his    participation           in

interscholastic            sports      and       other      activities,         is      not

constitutionally           protected,    and     the     district      court    correctly

dismissed this claim.               Finally, because the complaint does not

implicate      a     fundamental        right,      the     Baileys’       reliance       on

Tennessee Secondary Sch. Athletic Ass’n v. Brentwood Acad., 551

U.S. 291 (2007), is misplaced.

            Accordingly, we affirm the judgment of the district

court.      We dispense with oral argument because the facts and

legal    contentions        are     adequately      presented      in   the     materials

before   the       court    and    argument      would    not    aid    the    decisional

process.

                                                                                 AFFIRMED




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