                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         AUG 5 2002
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


 KENDALL MCCOOK and VIRGINIA
 MCCOOK,

          Plaintiffs - Appellants,

 v.

 SPRINGER SCHOOL DISTRICT;                             No. 01-2157
 SPRINGER BOARD OF                            (D.C. No. 99-1362 WWD/DJS)
 EDUCATION; FREDDIE                             (District of New Mexico)
 CARDENAS; DAVID GUTIERREZ;
 CARLOS CRAIG; RAY MCFALL;
 ANDRES EBELL, in their individual
 and official capacities,

          Defendants - Appellees.




                             ORDER AND JUDGMENT *


Before HENRY and PORFILIO, Circuit Judges, and SAM, District Judge. **




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        The Honorable David Sam, District Judge for the United States District
Court for the District of Utah, sitting by designation.
      Plaintiffs, Kendall and Virginia McCook, appeal the district court’s adverse

grant of two separate summary judgment motions in their 42 U.S.C. § 1983 action

against Springer Superintendent Freddie Cardenas, in his individual and official

capacity; Springer Board of Education members Carlos Craig, Andres Ebell,

David Gutierrez, and Ray McFall, in their individual and official capacities; the

Springer Board of Education; and the Springer School District (Defendants).

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                    I. BACKGROUND

      Mr. and Mrs. McCook, parents of Springer High School student, Jake

McCook, have been frequent and outspoken critics of Defendants since 1997.

The parties’ differences culminated in this lawsuit shortly after Springer High

School’s network administrator’s first day of work on October 5, 1998. On either

that day, or the next, the network administrator discovered on the school’s laptop

computer “[m]ore than 20” audio clips from the animated cable television series

“South Park.” No one at the high school had instructed the network administrator

to review the laptop’s contents. According to his deposition testimony, he “was

[just] going to dump the cache on it, to clean it out, . . . [to] speed[] up

performance.” He testified, “[w]henever you get a new PC, you’re just curious

[about] what it can do and what it has on it.”




                                          -2-
        The clips found by the network administrator contained obscenities and

sexually explicit language. He reported the material to Superintendent Cardenas

and played the clips for him on Thursday, October 8, 1998. That day,

Superintendent Cardenas called to his office Jake McCook, who admitted

downloading the “South Park” clips when he possessed the computer five months

earlier. Superintendent Cardenas suspended Jake for five days for improper use

of a school computer. Before Jake left the Springer campus, Superintendent

Cardenas issued him a disciplinary report. It reflected a parent conference was

held and Jake was not to attend any school activities during his five day

suspension. The district court found “[b]oth Jake and his mother understood

[Jake’s] suspension would take effect immediately and that Jake would not be

able to attend the Homecoming pep rally the following day,” Friday, October, 9,

1998.

        Yet, on the morning of October 9, Jake and his father drove to the high

school. The parties dispute the purpose of this visit, but it is clear Jake and Mr.

McCook’s ultimate goal was to admit Jake to the pep rally.

        Superintendent Cardenas saw Jake and Mr. McCook enter the school and,

considering Jake’s suspension, he asked them to leave. They refused. A physical

confrontation between Mr. McCook and Superintendent Cardenas ensued. Mr.

McCook concedes he took off his hat and glasses, put his papers down and said,


                                         -3-
“[w]hich one of you sons a bitches wants to take me on?” – but, he claims he did

so only because he felt threatened by the presence of the athletic director,

principal, and two custodians who had gathered in front of him. Superintendent

Cardenas admits he grabbed Mr. McCook in order to escort him outside.

Although the amount of physical force applied by either Mr. McCook or

Superintendent Cardenas is a matter of disagreement, there is no question Jake

placed himself between the two in an attempt to break Superintendent Cardenas’

hold on his father. When the police arrived, the altercation had ended.

      Later that same day, Superintendent Cardenas sent a letter to the Springer

Police Department. It stated, “To Whom It May Concern: Kendall McCook,

Virginia McCook and Jake McCook are prohibited from attending any Springer

Municipal Schools functions or from trespassing onto any Springer Municipal

Schools property.” On Wednesday, October 14, 1998, Superintendent Cardenas

sent a letter to Mr. and Mrs. McCook to inform them Jake’s suspension had ended

(that day). It read, “Jake may be subject to additional consequences as a result of

the incident, which occurred on Friday, October 9, 1998. Mr. Kendall McCook,

you are not permitted on campus at any time for any reason until further notice.”

Despite the omission of Mrs. McCook from this letter, she stated in her

deposition, “I understood that I was barred [from the school] forever.”




                                         -4-
      Based on Jake’s behavior on October 9, Superintendent Cardenas made a

recommendation to the Springer Board of Education that Jake be expelled and

issued to the McCooks a Notice of Hearing. At the close of Jake’s hearing, the

evening of October 29, 1998, the School Board voted by majority to expel Jake.

The Board’s “Decision of the Hearing Authority” stated, in part,

      Jake McCook’s conduct during the incident of October 9, 1998,
      constituted an assault and battery on Mr. Cardenas, interference with
      school personnel through threats and violence, a refusal to cooperate
      with school personnel, a willful refusal to leave a school facility or
      school-sponsored activity after being directed to do so by an
      administrative authority, disruptive conduct, and a violation of the
      terms of his prior disciplinary suspension.

      Following his expulsion, Jake visited the Springer campus to obtain

information about home schooling from the school counselor. Because

Superintendent Cardenas understood Jake’s expulsion prohibited him from

entering school property, he asked the Board’s attorney to write a letter to the

McCooks’ attorney. The November 10, 1998 letter asked Jake and Mr. McCook

to honor their exclusion from Springer High School property.

      Several weeks later, the McCooks brought this suit under 42 U.S.C. § 1983

against Defendants, alleging retaliation for the exercise of their First Amendment

free speech rights, deprivation of their First Amendment freedoms of association

and assembly, and deprivation of their Fourteenth Amendment right to equal

protection of the laws. In their second amended complaint, the McCooks claimed,


                                        -5-
      The Defendants’ actions in, among other things, barring the Plaintiffs
      and their son from entering onto school property, from attending
      school Board meetings, from voting in a school board election, from
      participating in athletic events held on district property, in filing
      baseless criminal charges against the Plaintiff, and in suspending and
      then expelling the Plaintiffs’ son from school on scurrilous and
      pretextual grounds, were retaliatory in nature and were intentionally
      engaged in by the Defendants . . . .

      Superintendent Cardenas filed a motion for summary judgment based on

qualified immunity. Springer Board of Education members and the Springer

Board of Education filed a separate summary judgment motion based on qualified

immunity. In an unpublished memorandum opinion and order, the district court,

on April 24, 2001, granted qualified immunity summary judgment in favor of

Superintendent Cardenas. In a separate unpublished memorandum opinion and

order filed the same day, the court granted the Board members’ summary

judgment motion based on qualified immunity. In that order, the court also

granted summary judgment to the Springer Board of Education. Although the

Springer School District is a named defendant, it did not join either

Superintendent Cardenas’ motion or the motion filed by the Board members and

Board. Nevertheless, the School District received the benefit of the district

court’s May 9, 2001 judgment. It granted final summary judgment in favor of

Defendants on all the McCooks’ claims and dismissed the McCooks’ action in its

entirety. The McCooks timely appealed.



                                        -6-
                          II. STANDARD OF REVIEW

      Under certain circumstances, the affirmative defense of qualified immunity

shields public officials from individual liability in actions brought under 42

U.S.C. § 1983. Harlow v. Fitzgerald, 457 U.S. 800 (1982). Qualified immunity

“protects all but the plainly incompetent or those who knowingly violate the law.”

Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001)

(internal quotations and citations omitted). It is “an immunity from suit rather

than a mere defense to liability.” Saucier v. Katz, 533 U.S. 194, 200-01 (2001)

(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

      We review the legal issues surrounding the grant of summary judgment

based on qualified immunity de novo, considering all evidence in the light most

favorable to the nonmoving parties, in this case, the McCooks. DeSpain v.

Uphoff, 264 F.3d 965, 971 (10th Cir. 2001). 1 Our review of “summary judgment

orders deciding qualified immunity questions,” however, is different than our

review of “other summary judgment decisions.” Harrington, 268 F.3d at 1185

(quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)); Nelson v.

McMullen, 207 F.3d 1202, 1205-06 (10th Cir. 2000). “After a defendant asserts



      1
        Because of the First Amendment issues raised in this case, application of
the de novo standard of review is particularly appropriate. Essence, Inc. v. City
of Federal Heights, 285 F.3d 1272, 1283 (10th Cir. 2002). Such issues demand
our rigorous examination of the whole record. Id.

                                        -7-
a qualified immunity defense, the burden shifts to the plaintiff,” who must meet a

two-part test before the defendant will bear the traditional burden of movant for

summary judgment under Fed. R. Civ. P. 56(c). Id. (quoting Medina, 252 F.3d at

1128); Nelson, 207 F.3d at 1206.

      First, we must determine whether the facts alleged by the McCooks, taken

in the light most favorable to them, show the conduct of Superintendent Cardenas

or the Springer Board of Education members (individual defendants) violated a

constitutional right. Hope v. Pelzer, 536 U.S. __ , 122 S. Ct. 2508 (2002) (citing

Saucier, 533 U.S. at 201). It is important that we initially determine whether

there has been a constitutional violation because

      [i]n the course of determining whether a constitutional right was
      violated on the premises alleged, a court might find it necessary to
      set forth principles which will become the basis for a holding that a
      right is clearly established. This is the process for the law’s
      elaboration from case to case, and it is one reason for our insisting
      upon turning to the existence or nonexistence of a constitutional right
      as the first inquiry. The law might be deprived of this explanation
      were a court simply to skip ahead to the question whether the law
      clearly established that the [official’s] conduct was unlawful in the
      circumstances of the case.

Saucier, 533 U.S. at 201 (emphasis added). If the McCooks fail to meet their

threshold burden of demonstrating a constitutional violation, “there is no

necessity for further inquiries concerning qualified immunity.” Id. If, on the

other hand, the McCooks’ factual allegations add up to a violation of a

constitutional right, “the next, sequential step is to ask whether the right was

                                        -8-
clearly established at the time of the defendant’s unlawful conduct[,]” such that a

reasonable person in the defendant’s position would have known that the alleged

conduct violated the federal right. Harrington, 268 F.3d at 1186 (internal

quotations and citations omitted); see also Hope, 122 S. Ct. 2508.

      Because entity defendants are not entitled to qualified immunity, we omit

its two-part test in reviewing the district court’s grant of summary judgment in

favor of the Springer Board of Education and, by its final judgment, in favor of

the Springer School District. We engage in de novo review of the district court’s

summary judgment ruling in favor of the entity defendants, applying the same

standard as the district court. Hollander v. Sandoz Pharms. Corp., 289 F.3d

1193, 1214 (10th Cir. 2002). Summary judgment is warranted “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We consider the facts

and all reasonable inferences drawn therefrom in a light most favorable to the

nonmoving parties. Hollander, 289 F.3d at 1214. “In this respect, we must view

the evidence in context, not simply in its segmented parts.” McCowan v. All Star

Maint., Inc., 273 F.3d 917, 921 (10th Cir. 2001) (citation omitted). Since our

analysis departs, at times, from that of the district court, we remind that “[w]e are


                                        -9-
free to affirm a district court decision on any grounds for which there is a record

sufficient to permit conclusions of law, even grounds not relied upon by the

district court.” Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001) (quoting

United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994)).

                                    III. DISCUSSION

                            A. First Amendment Retaliation

      “[T]he purpose behind the Bill of Rights, and of the First Amendment in

particular[, is] to protect unpopular individuals from retaliation--and their ideas

from suppression--at the hand of an intolerant society.” McIntyre v. Ohio

Elections Comm’n, 514 U.S. 334, 357 (1995). Thus, “the First Amendment bars

retaliation for protected speech.” Crawford-El v. Britton, 523 U.S. 574, 592

(1998).

      In this case, the McCooks contend that in response to their complaints,

lawsuits, and other objections, Defendants launched a campaign of retaliation.

The McCooks’ criticisms include allegations about the incompetent

administration of the Springer School District, loss of students from the District

and improper disciplinary practices; violations of State Board of Education

policies, the Open Meetings Act, and the District’s own policies; unconstitutional

use of drug-sniffing dogs on the Springer campus; and the Board’s wrongful

restriction of public input at Board meetings. Additionally, in June 1998, Mr.


                                        - 10 -
McCook filed a lawsuit against Board member Carlos Craig because the son of

the Board’s President was selected as a scholarship recipient instead of the

McCook’s son. Several days before Jake’s suspension, Mr. McCook also filed a

complaint of reverse racial discrimination against the Board; he contended the

Board hired a much less qualified Hispanic individual for the Springer High

School English/History teacher position. Furthermore, the same day Jake was

suspended, the New Mexico Athletic Association (NMAA) received an

“anonymous” letter allegedly written by Mrs. McCook, in which she complained

about Springer High School’s principal’s children participating in athletic events,

without a Springer residence, in violation of NMAA rules.

      First Amendment retaliation claims are generally, but not always, brought

in the public employment context. Connick v. Myers, 461 U.S. 138 (1983);

Pickering v. Board of Educ., 391 U.S. 563 (1968). 2 In this case, the McCooks

are not employees of Defendants and no contractual relationship exists between

the parties. We therefore employ the substantive standard we announced in

Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000), cert. denied, 533 U.S. 916

(2001). Although the facts of Worrell are set against a public employment



      2
        For First Amendment retaliation cases outside the public employment
context, see Wolford v. Lasater, 78 F.3d 484 (10th Cir. 1996); DeLoach v.
Bevers, 922 F.2d 618 (10th Cir. 1990); Frazier v. Dubois, 922 F.2d 560 (10th
Cir. 1990).

                                       - 11 -
backdrop, we think Worrell, which was considered by the district court in this

case but not applied, provides a more appropriate framework than Pickering,

which is inapposite. 3

      Worrell recognized “an alternative to the Pickering balancing is warranted

when allegations of retaliatory conduct are directed at a defendant who is not the

plaintiff’s employer and when there is no contractual relationship between them.”

Worrell, 219 F.3d at 1212. In articulating Worrell’s test, we relied on a case that

factually, had nothing to do with public employment. See Lackey v. County of

Bernalillo, No. 97-2265, 1999 WL 2461 (10th Cir. Jan. 5, 1999).

      We . . . require[] proof of the following elements: (1) that the
      plaintiff “was engaged in constitutionally protected activity”; (2) that
      the defendant’s actions caused the plaintiff “to suffer an injury that
      would chill a person of ordinary firmness from continuing to engage
      in that activity”; and (3) that the “defendant’s adverse action was
      substantially motivated as a response to the plaintiff’s exercise of
      constitutionally protected conduct.”

Worrell, 219 F.3d at 1212 (quoting Lackey, 1999 WL 2461, at *3). Other circuits

follow this approach. See generally Carroll v. Pfeffer, 262 F.3d 847, 850 (8th




      3
        Although Defendants relied on Pickering v. Board of Educ., 391 U.S.
563 (1968), in the district court, they maintain that they are entitled to qualified
immunity even under Worrell, which, like Pickering, requires a plaintiff to prove
a defendant’s adverse actions were prompted by a retaliatory motive. Worrell v.
Henry, 219 F.3d 1197, 1212 (10th Cir. 2000), cert. denied, 533 U.S. 916 (2001).
It is Defendants’ position the McCooks cannot show Defendants possessed an
unconstitutional animus.

                                       - 12 -
Cir. 2001); Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300

(9th Cir. 1999); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998).

      In answer to the McCooks’ claim of First Amendment retaliation,

Defendants acknowledge the First Amendment right to criticize public officials,

New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964), and to “petition the

Government for a redress of grievances,” are protected activities, U.S. Const.

amend. I; United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217,

222 (1967), but assert that none of the McCooks’ criticisms focused on matters of

“public concern,” as required by Connick, 461 U.S. 138, and therefore none of

the McCooks’ speech was protected by the First Amendment. The McCooks

counter that Worrell removed the requirement that protected speech involve

matters of public concern, but, offer no legal basis to support this position. They

argue in the alternative that they spoke out to inform the community and to help

the public evaluate the conduct of the Springer High School administration and

Board – what they characterize as matters of public concern.

      [W]hen the Supreme Court in its cases establishing and bounding the
      rights of public employees to exercise free speech limited those
      rights to speech on matters of “public concern,” they did not mean
      matters of transcendent importance, such as the origins of the
      universe or the merits of constitutional monarchy; they meant matters
      in which the public might be interested . . . . That the public was not
      large, that the issues were not of global significance, and that
      [Plaintiff’s] participation was not (we mean no disrespect) vital to
      the survival of Western civilization [does] not place [Plaintiff’s]
      speech outside the orbit of protection.

                                       - 13 -
Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir. 1996). While this

conclusion was reached in reviewing the law governing public employee free

speech claims, we think the Seventh Circuit’s view of “public concern” is

compelling on the facts of this case.

      Although some of the McCooks’ activities were not protected by the First

Amendment, for example, filing a lawsuit to vindicate private rights (not a matter

of public concern), Rice v. Ohio Dep’t of Transp., 887 F.2d 716, 720-21 (6th Cir.

1989), vacated on other grounds, 497 U.S. 1001 (1990), we need not dwell on

each criticism lodged by the McCooks. It is obvious they were, at least some of

the time, “engaged in constitutionally protected activity.” Worrell, 219 F.3d at

1212 (citation omitted). Accordingly, we believe the district court erred in

concluding the McCooks “have not engaged in protected speech for purposes of a

First Amendment retaliation claim.” Indeed, during oral argument, counsel for

Defendants conceded, “the issue of whether or not the Plaintiffs’ speech was

protected is not our strong argument. . . . That is not what we . . . hang our hat on

in this case.”

      Satisfied that the McCooks meet the first element of the Worrell test, we

turn to the second: whether Defendants’ actions caused the McCooks “to suffer

an injury that would chill a person of ordinary firmness from continuing to engage

in that activity.” Worrell, 219 F.3d at 1212 (citation omitted). “Generally


                                        - 14 -
speaking, government action which chills constitutionally protected speech or

expression contravenes the First Amendment.” Wolford v. Lasater, 78 F.3d 484,

488 (10th Cir. 1996) (citations omitted).

      The McCooks present a list of Defendants’ adverse actions that, they argue,

would chill a person of ordinary firmness from continuing to engage in his or her

First Amendment rights. 4 Then, the McCooks claim Defendants’ actions chilled

them: they stopped going to Board meetings and Mr. McCook did not vote in

what the McCooks call a “crucial” Board election. Defendants urge the record

demonstrates the opposite. Both sides mistakenly assume the “chill” standard is

subjective, which it is not. Plati, 258 F.3d at 1177 (“The focus, of course, is

upon whether a person of ordinary firmness would be chilled, rather than whether

the particular plaintiff is chilled.”). Taking into consideration that “inferences

arising from the record before us must be drawn and indulged in favor of

the party opposing summary judgment,” we think the McCooks could prevail on

this element as well. McCowan, 273 F.3d at 921 (citation omitted).




      4
         Among the injuries allegedly suffered by the McCooks, they assert that
after Jake’s expulsion, Mr. McCook moved to Arizona with Jake, and “Jake had
to attend school out of state for the rest of that entire school year at considerable
cost to the family.” The McCooks’ counsel made similar representations at oral
argument. Mrs. McCook’s deposition testimony states otherwise: “[Jake] went to
Arizona to finish the [fall 1998] semester, . . . and then in January [1999] came
to Maxwell,” a high school near Springer High School.

                                        - 15 -
      We now turn to Worrell’s third element, whether Defendants’ “adverse

action was substantially motivated as a response to the [McCooks’] exercise of

constitutionally protected conduct.” 219 F.3d at 1212 (citation omitted). It is at

this juncture that the McCooks’ First Amendment retaliation claim fails.

      “Intent to inhibit speech . . . can be demonstrated either through direct or

circumstantial evidence.” Mendocino Envtl. Ctr., 192 F.3d at 1300-01 (citation

omitted). Clearly though, “proof of an official’s retaliatory intent rarely will be

supported by direct evidence of such intent.” Poole v. County of Otero, 271 F.3d

955, 962 (10th Cir. 2001) (quoting Bloch, 156 F.3d at 682). This court has set

forth a test for examining the issue of intent in the context of a summary

judgment motion based on qualified immunity. First, Defendants must make “a

prima facie showing of the objective reasonableness of the challenged conduct.”

Seeds v. Lucero, 177 F. Supp. 2d 1261, 1270 (D. N.M. 2001) (quoting Gehl

Group v. Koby, 63 F.3d 1528, 1535 (10th Cir. 1995), overruled on different issue

by Patel v. Wooten, No. 00-1187, 2001 WL 788639 (10th Cir. July 12, 2001)). If

Defendants meet their burden of showing objective reasonableness, we next

consider whether the McCooks satisfied the “burden of presenting evidence




                                        - 16 -
Defendants ‘acted on the basis of a culpable subjective state of mind.’” Id. at

1270 (quoting Gehl Group, 63 F.3d at 1535). 5

      In their opening brief, the McCooks offer an extensive enumeration of

conduct they challenge as retaliatory. They maintain Defendants retaliated

against them by:



      5
         While this appeal was pending, we overruled Gehl Group’s heightened
pleading rule. Gehl Group v. Koby, 63 F.3d 1528, 1535 (10th Cir. 1995),
overruled by Patel v. Wooten, No. 00-1187, 2001 WL 788639 (10th Cir. July 12,
2001). In Gehl Group, we said,
       When state of mind is an essential element of the plaintiff’s
       substantive claim, we have adopted a modified approach to
       considering a public official’s qualified immunity defense on a
       motion for summary judgment. . . . Once the defendant has shown
       his or her objective reasonableness, the plaintiff’s burden to establish
       subjective motivating animus becomes heightened, requiring specific
       and concrete evidence rather than mere speculation.
63 F.3d at 1535 (emphasis added). In overruling the heightened pleading rule, we
explained,
       This circuit has previously required a plaintiff to meet a heightened
       pleading standard when subjective intent was an element of the
       substantive claim and the defendant raised a qualified immunity
       defense. . . . We recently held, reviewing a dismissal under Fed. R.
       Civ. P. 12(b)(6), that our heightened pleading requirement does not
       survive the Supreme Court’s opinion in Crawford-El v. Britton, 523
       U.S. 574, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998). Currier v.
       Doran, 242 F.3d 905, 916 (10th Cir. 2001). Even though we were
       reviewing a dismissal in Currier, we noted that Crawford-El decided
       that the D.C. Circuit’s heightened pleading requirement at the
       summary judgment stage was improper. Currier, 242 F.3d at 913-14,
       916. Thus, there is no question that our heightened pleading
       requirement at the summary judgment stage was also overturned by
       Crawford-El.
Patel, 2001 WL 788639, at *2 n.2.

                                       - 17 -
      1.     suspending [their] son Jake after the Plaintiffs reported
             Defendant Cardenas for violating the rules of the NMAA;
      2.     assaulting Kendall McCook when he went to the high school
             for a lawful purpose and using this event as grounds to expel
             the Plaintiffs’ son;
      3.     filing baseless and vindictive criminal charges against Kendall
             McCook and his son on the day a Notice of Tort Claims was
             received by Defendant Cardenas;
      4.     prohibiting Kendall and Virginia McCook from entering onto
             school property at any time for any reason thus precluding
             attendance at Board meetings and voting in Board elections;
      5.     threatening the Plaintiffs with civil and criminal prosecution if
             they dared enter the public property of the Springer campus;
      6.     attempting to prevent Kendall McCook from speaking at Board
             meetings, changing Board policy to limit the ability of the
             public to voice their concerns at Board meetings and
             selectively enforcing that policy against Kendall McCook;
      7.     denying Kendall McCook employment with the Springer
             School District and the concomitant failure of the Board to
             follow the hiring mandates of state law and its own policies;
             and
      8.     expelling Jake at a hearing that was far from impartial.

After setting forth this eight-point list, the McCooks only develop several of their

allegations; we thus confine our review to those specific contentions, Perry v.

Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999) (observing that this court

“will not craft a party’s arguments for him”); Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 679 (10th Cir. 1998) (citations omitted) (noting that “[a]rguments

inadequately briefed in the opening brief are waived”), all of which rise from the

general proposition that temporal proximity between the McCooks’ criticisms and

Defendants’ conduct evidences Defendants’ retaliatory motive.



                                        - 18 -
      The McCooks contest the real reason for their son’s suspension had not to

do with the material he downloaded, but the complaints Mr. and Mrs. McCook

made. They contend the timing of their criticisms, in relation to Defendants’

conduct, is telling, and “[t]iming can be circumstantial evidence of retaliatory

intent.” Poole, 271 F.3d at 961 (citation omitted). In the public employment

context, “[t]his court previously has recognized that protected conduct closely

followed by adverse action may justify an inference of retaliatory motive [but] . . .

we have rejected attempts to unduly stretch the close temporal proximity required

under this standard.” Butler v. City of Prairie Village, 172 F.3d 736, 752 (10th

Cir. 1999) (internal quotations and citations omitted).

      “A five day suspension,” argue the McCooks, “five months after [Jake] . . .

return[ed] . . . the computer[,] was not objectively reasonable under the

circumstances.” Plus, Superintendent Cardenas suspended Jake four days after

Mr. McCook’s EEOC complaint was mailed to Defendants, and on the same day

Superintendent Cardenas received Mrs. McCook’s letter suggesting possible

NMAA violations. 6

      Although the McCooks are careful to keep the net they cast wide,

Superintendent Cardenas was the only individual responsible for Jake’s


      6
        This letter is separate and different from the “anonymous letter” allegedly
written by Mrs. McCook, which the New Mexico Athletic Association (NMAA)
received on October 5, 1998.

                                        - 19 -
suspension. Superintendent Cardenas contends he acted in an objectively

reasonable fashion in suspending Jake on the same day he heard the “South Park”

clips and Jake confessed his responsibility. In the words of the district court,

      [a]lthough it is undisputed that the school laptop computer had been
      checked out to Jake, undisputed that Chris Sandlin [the network
      administrator] discovered the inappropriate material . . ., undisputed
      that Sandlin testified that no one told him to check out the computer,
      undisputed that he found inappropriate material downloaded . . . , and
      undisputed that Jake admitted downloading this material, Plaintiffs
      nevertheless contend that Cardenas’ action was retaliatory.

The McCooks ineffectively attempt to dispel the district court’s conclusion.

Relying wholly on the timing of Superintendent Cardenas’ actions, they present

no persuasive evidence Superintendent Cardenas “acted on the basis of a culpable

subjective state of mind.” Seeds, 177 F. Supp. 2d at 1270 (quoting Gehl Group,

63 F.3d at 1535). The temporal proximity of the McCooks’ protected speech to

Superintendent Cardenas’ suspension of Jake is insufficient, without more, to

establish retaliatory motive. See Butler, 172 F.3d at 746 (citations omitted) (“The

mere temporal proximity of Plaintiff’s protected speech to his termination is

insufficient, without more, to establish retaliatory motive.”).

      The McCooks’s next argue Jake’s suspension was supposed to start the

Monday following Homecoming weekend, but Superintendent Cardenas shifted

Jake’s punishment to the Friday before when Mrs. McCook accused

Superintendent Cardenas of suspending her son in retaliation for the letter she


                                        - 20 -
wrote to him about possible NMAA violations. Significantly, Mrs. McCook was

not present when Superintendent Cardenas called Jake to his office and

disciplined him. Moreover, Superintendent Cardenas testified Jake’s suspension

was effective immediately on Thursday, October 8, 1998. Jake’s disciplinary

report corroborates Superintendent Cardenas’ position. Only Jake’s contradictory

deposition testimony gives rise to any indication there was a shift in the start date

of his suspension. 7 Jake’s contradictory testimony, however, is insufficient to

evidence Superintendent Cardenas “acted on the basis of a culpable subjective

state of mind.” Id. at 1270 (quoting Gehl Group, 63 F.3d at 1535); see also

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

(citations omitted) (In the summary judgment context, the nonmoving party “must



      7
        During his deposition, Jake at one point, stated, “Mr. Cardenas told me
that I would be suspended for five days because of this [the “South Park” clips]
starting on Monday.” Yet, later, in response to the question, “Mr. Cardenas told
you that you were suspended immediately?” he answered:
       A:    Yes.
       Q:    Did he tell you for how long?
       A:    For five days.
       Q:    What did you understand that to mean?
       A:    That starting that day, I would be suspended, and it would
             carry over
             to the next week.
       Q:    And did you ask him to reconsider?
       A:    I asked him to admit me to the Homecoming assemblies for the
             weekend.
       Q:    And what did he say?
       A:    No.

                                        - 21 -
do more than simply show that there is some metaphysical doubt as to the material

facts.”).

       The McCooks also allege Superintendent Cardenas’ October 14, 1998 letter

to the McCooks was retaliatory because it was written the same day

Superintendent Cardenas received the McCooks’ Notice of Tort Claims and it

reiterated the exclusion of Mr. McCook from Springer High School property. A

plain reading of that letter, however, supports no such inference. The district

court thus properly concluded: “[i]n an attempt to create inferences where there

are none, Plaintiffs stretch a coincidence into an improbable dispute of fact.”

       The McCooks then turn to two adverse actions allegedly taken by the

individual Springer Board of Education members. 8 The district court understood

the McCooks’ claims against the Board members were “based on personal liability


       8
         We need not address the McCooks’ allegations, raised in their reply brief,
that “[t]he actions of the Board members included preventing Plaintiffs from
voting, banning the McCooks from school property, [and] expelling Jake
McCook.” This is because the McCooks offer no factual or legal support for their
conclusory allegations and because these allegations were not made in the
McCooks’ opening brief. Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir.
1990) (conclusory statements are inadequate to defeat a summary judgment
motion); see also State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7
(10th Cir. 1994) (stating that an issue not sufficiently raised in the opening brief
is waived); Fed. R. App. P. 28(a)(9)(A) (opening brief must include “the
argument, which must contain . . . appellant’s contentions and reasons for them,
with citations to the authorities and parts of the record on which the appellant
relies”). Incidentally, the first two of these three allegations are presumably
premised on the Board members’ supervisory liability for the actions of
Superintendent Cardenas.

                                        - 22 -
as well as vague allusions to supervisory liability for Superintendent Cardenas’

actions.” We have held that “[i]ndividual liability under § 1983 must be based on

personal involvement in the alleged constitutional violation.” Foote v. Spiegel,

118 F.3d 1416, 1423 (10th Cir. 1997) (citation omitted).

      First, the McCooks contend the individual Board members’ retaliatory

motives are evidenced by the fact they “disliked Kendall McCook’s criticisms of

them at Board meetings and in the local press.” We disagree. Citing Rakovich v.

Wade, 850 F.2d 1180, 1193 (7th Cir. 1988), the district court aptly disposed of

this argument: “dislike is not an illegal motive.”

      Second, in December 1997, ten months prior to Jake’s suspension, Board

members changed the Board’s public participation policy by limiting public

speech at Board meetings to two minutes (from five minutes). The McCooks

claim, “[t]his policy was changed two months after Kendall McCook asserted his

right to speak for five minutes and criticized the Board regarding the award of the

Sims scholarship to the Board President’s son.” Citing the record, the McCooks

contend this new time limit was selectively enforced against Mr. McCook. Their

citation directs our attention to deposition testimony of Christine Garcia, a regular

attendant of Board meetings between January 1997 and October 1998.

      Defendants counter with deposition testimony indicating the Board

implemented the new policy so individual speakers would not take up the entire


                                        - 23 -
evening. Janell Ross, the only Board member not sued in this action, testified the

Board President obtained the time-limit idea from another school district and

denied that the decision was directed at anyone in particular. Moreover, Ms.

Garcia’s testimony does not support the McCooks’ allegation the policy was

enacted in response to Mr. McCook’s criticisms. Thus, we think the district court

correctly determined, “there is no evidence that the change [in the time limit] was

made only because of him . . . .”

      Ms. Garcia’s testimony is the only evidence the McCooks offer to support

their allegation the Board unevenly enforced their new policy:

      Q:     Do you know – when you indicated that that policy was
             unevenly enforced, who was it enforced against?
      A:     Primarily Mr. McCook.
      Q:     Do you know anyone else it was enforced against?
      A:     No, sir.

Notwithstanding this testimony, the district court found “there is no evidence . . .

it [the time limit change] was selectively enforced.” As the district court

recognized, Defendants concede Mr. McCook was one of the more outspoken

speakers at Board meetings. Board Member Carlos Craig testified, “others once

in a while interrupted [at Board meetings],” yet, as we read the record, the Board

never had another occasion to enforce its new policy against anyone but Mr.

McCook. There is simply no evidence anyone but Mr. McCook attempted to

speak beyond the allotted time. To find retaliatory motive on the part of the


                                        - 24 -
Board members, then, we would have to speculate that were another individual to

test the new policy, the Board would not enforce it. Accordingly, we do not think

the district court erred on this point.

      Finally, because we view the McCooks’ allegations through the lens of

qualified immunity, our conclusion that the McCooks failed to demonstrate a

constitutional violation not only renders the individual defendants entitled to

qualified immunity, but also precludes our consideration of whether the law was

clearly established. Saucier, 533 U.S. at 201 (“If no constitutional right would

have been violated were the allegations established, there is no necessity for

further inquiries concerning qualified immunity.”).

      We now turn to the allegedly retaliatory acts taken by the entity defendants,

the Springer Board of Education and Springer School District, neither of which

are entitled to qualified immunity. Seamons v. Snow, 206 F.3d 1021, 1029 (10th

Cir. 2000). For the McCooks to establish municipal liability against the entity

defendants, they “must show 1) the existence of a municipal policy or custom, and

2) that there is a direct causal link between the policy or custom and the injury

alleged.” Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993) (citing

City of Canton v. Harris, 489 U.S. 378, 385 (1989)); see also Seamons, 206 F.3d

at 1029. Municipal liability may not be based on either a respondeat superior or

vicarious liability theory. Wilson v. Meeks, 98 F.3d 1247, 1255 (10th Cir. 1996)


                                          - 25 -
(citing Monell v. Dep’t of Social Services, 436 U.S. 658, 691 (1978)).

      Nowhere in the McCooks’ opening brief do they outline the retaliatory acts

allegedly taken by the entity defendants, much less make the showing described in

Hinton. In fact, the McCooks offer no evidence of the entity defendants’

retaliatory conduct which this court may consider, and, as we have stated, we

“will not craft a party’s arguments for him.” Woodward, 199 F.3d at 1141 n.13.

At any rate, we have held that where we determine individual defendants

committed no constitutional violation, municipal liability may not be imposed.

See generally, Butler, 172 F.3d at 747 (citations omitted) (“Because our

conclusion that the individual defendants are entitled to qualified immunity rests

on the determination that none of them violated Plaintiff’s constitutional rights,

the City may not be found to have violated his rights.”). See also Wilson, 98 F.3d

at 1255 (quoting Hinton, 997 F.2d at 782) (“A municipality may not be held

liable where there was no underlying constitutional violation by any of its

officers.”). We therefore believe the district court properly found “Plaintiffs

claims of municipal liability cannot stand.”

       B. First Amendment Freedom of Assembly and Association and
            Fourteenth Amendment Equal Protection of the Laws

      The Supreme Court has recognized,

      a right to associate for the purpose of engaging in those activities
      protected by the First Amendment--speech, assembly, petition for the
      redress of grievances, and the exercise of religion. . . . [W]hen the

                                       - 26 -
      State interferes with individuals’ selection of those with whom they
      wish to join in a common endeavor, freedom of association . . . may
      be implicated.

Boy Scouts of Am. v. Dale, 530 U.S. 640, 678 (2000) (internal quotations and

citations omitted). In this case, the district court focused on the issue of voting in

its analysis of the McCooks’ freedom of assembly and association claim. On

appeal, the McCooks contend the court’s focus was in error because their claim

“also centered on the fact that that they were not allowed to attend Board

meetings or to go on school property for any school or community event.” The

McCooks’ argument is misplaced. Presumably, the court focused on voting

because the McCooks presented no authority establishing a constitutional right to

go onto school property. In the end, the district court found no merit to the

McCooks’ association and assembly claim since Superintendent Cardenas’

exclusion of Mr. McCook “did not, in fact[,] prevent either Plaintiff from voting.”

We agree.

      Contrary to Mrs. McCook’s understanding that she “was barred [from the

school] forever,” she has voted in Springer Board of Education elections on

Springer High School property twice since October 8, 1998. In her deposition she

stated, “I chose to ignore it [being barred] and go up to the school and vote.” Mr.

McCook did not vote in 1999, but he did vote in 2000. The McCooks contend

Mr. McCook only voted in 2000 because the McCooks’ counsel intervened. But,


                                        - 27 -
as offered by Defendants and recognized by the district court, Mr. McCook could

have voted in person at the County Clerk’s office or through the mail, via

absentee ballot. Ultimately then, the McCooks fail to meet their threshold

burden, present in summary judgment on qualified immunity grounds, of

demonstrating a constitutional violation. Hope, 122 S. Ct. 2508; Saucier, 533

U.S. at 201. Their First Amendment freedom of assembly and association claim

therefore fails.

      The McCooks’ equal protection claim is likewise unsuccessful. “The Equal

Protection Clause of the Fourteenth Amendment commands that no State shall

‘deny to any person within its jurisdiction the equal protection of the laws,’ which

is essentially a direction that all persons similarly situated should be treated

alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)

(quoting Plyer v. Doe, 457 U.S. 202, 216 (1982)). The McCooks contend the

district court mischaracterized their equal protection claim as based solely on

their allegation Defendants violated their fundamental right to vote. Dunn v.

Blumstein, 405 U.S. 330, 336 (1972). Rather, argue the McCooks, Defendants

“arbitrarily retaliated against them in violation of their right to equal protection

when they engaged in all of the retaliatory conduct set forth” throughout their

briefs. They point to Village of Willowbrook v. Olech, and assert that they may

bring a claim against Defendants as a “class of one.” 528 U.S. 562, 564 (2000).


                                        - 28 -
True, the Supreme Court has “recognized successful equal protection claims

brought by a ‘class of one,’ where the plaintiff alleges that she has been

intentionally treated differently from others similarly situated and that there is no

rational basis for the difference in treatment.” Id. (citations omitted). But, the

McCooks’ only attempt at demonstrating disparate treatment is their statement,

without citation to authority or the record, “the uncontroverted fact[s] [show] . . .

Kendall McCook was the only one ever prohibited from speaking at a Board

meeting.” This bald assertion is insufficient to merit reversal of summary

judgment. Adler, 144 F.3d at 679 (10th Cir. 1998).

                                IV. CONCLUSION

      The McCooks’ First Amendment retaliation claim against the individual

defendants is unavailing because the McCooks fail to meet their threshold burden

of demonstrating a constitutional violation. Their First Amendment retaliation

claim against the entity defendants is also unsuccessful. This is due to their

inability to show the existence of a municipal policy or custom and a direct causal

link between the policy or custom and the injury alleged. Finally, on their right

of assembly and association and equal protection claims, the McCooks, here, too,

fail to meet their threshold burden, present in summary judgment on qualified




                                         - 29 -
immunity grounds. 9 The judgment of the United States District Court for the

District of New Mexico is AFFIRMED.



                                      ENTERED FOR THE COURT


                                      John C. Porfilio
                                      Senior Circuit Judge




      9
          Appellants’ Motion to Supplement the Appendix is granted.

                                       - 30 -
