Nurre v. Whitehead ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHRYN NURRE, 
Plaintiff-Appellant,
v. No. 07-35867
CAROL WHITEHEAD, in her official  D.C. No.
CV-06-00901-RSL
and individual capacity as the
Superintendent of Everett School OPINION
District No. 2,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Chief District Judge, Presiding
Argued and Submitted
January 22, 2009—Seattle, Washington
Filed September 8, 2009
Before: Robert R. Beezer, Richard C. Tallman, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Tallman;
Partial Concurrence and Partial Dissent by
Judge Milan D. Smith, Jr.
12731
NURRE v. WHITEHEAD 12735
COUNSEL
W. Theodore Vander Wel, Vander Wel & Jacobson, Bishop
& Kim, PLLC, Bellevue, Washington, for the appellant.
Michael A. Patterson, Patterson Buchanan Fobes Leitch &
Kalzer, PS, Seattle, Washington, for the appellees.
Phylis Skloot Bamberger; Marc D. Stern; Zhubin Parang,
Sonnenschein Nath & Rosenthal LLP; for amicus curiae
American Jewish Congress.
Ayesha N. Khan, Richard B. Katskee, Nancy Leong, for
amicus curiae Americans United for Separation of Church and
State.
Steven W. Fitschen, Barry C. Hodge, Nathan A. Driscoll, for
amicus curiae The National Legal Foundation.
Francisco M. Negrón, Jr., Thomas E.M. Hutton, for amicus
curaie National School Boards Association.
OPINION
TALLMAN, Circuit Judge:
Once again we enter the legal labyrinth of a student’s First
Amendment right to free speech. There exists a delicate bal-
ance between protecting a student’s right to speak freely and
12736 NURRE v. WHITEHEAD
necessary actions taken by school administrators to avoid col-
lision with the Establishment Clause. While finding our way
is never easy, we here endeavor to provide guidance to assist
both school districts and their students.
Kathryn Nurre (“Nurre”) sought to perform an instrumental
version of “Ave Maria”1 at her public high school’s gradua-
tion ceremony. Dr. Carol Whitehead (“Whitehead”), superin-
tendent of Everett School District No. 2 (the “District”), in
which Nurre’s high school is located, declared that the piece
could not be played at the ceremony because it could be seen
as endorsing religion. Nurre subsequently sued Whitehead in
both her individual and official capacities for alleged viola-
tions of Nurre’s First and Fourteenth Amendment rights.
Nurre now appeals dismissal of her civil rights claims brought
under 42 U.S.C. § 1983.
Supreme Court precedent and the law of our circuit counsel
us to find that there was no violation of Nurre’s constitutional
rights. Therefore, we affirm the ruling of the district judge.
I
Everett School District No. 2 is a large western Washington
school district consisting of twenty-five individual schools.
The Henry M. Jackson High School2 (“JHS”) is one of three
high schools within the District. JHS conducts an annual grad-
uation ceremony featuring speakers, musical selections, a pre-
sentation of diplomas, and a ceremonial tassel turn led by one
designated student. All graduation ceremonies are sanctioned
by the District and held at the local convention center in Ever-
ett.
1
“Ave Maria” is Latin for “Hail Mary,” and was written by Franz Biebl
to put to music the words of a well known Roman Catholic prayer.
2
Named in honor of Everett’s native son, former United States Con-
gressman and Senator Henry M. “Scoop” Jackson.
NURRE v. WHITEHEAD 12737
Prior to the 2005 graduation ceremony, newly-hired JHS
principal Terry Cheshire (“Cheshire”) reviewed the titles of
all musical selections to be performed for the audience of stu-
dents, family, and friends. Seeing no issue with any piece pro-
posed by the school’s musical directors, Cheshire approved
the performance of all requested selections. At graduation, the
student choir performed “Up Above My Head,” a vocal piece
which included express references to “God,” “heaven,” and
“angels.” Immediately following graduation, the District
received complaints from graduation attendees regarding the
religiously-themed musical selections, and the local newspa-
per, The Everett Herald, printed indignant letters to the editor
complaining about religious statements included in the cere-
mony’s music performed before the audience.
As the 2006 graduation neared, Cheshire again previewed
the titles to each ensemble’s musical selections for the cere-
mony. In keeping with her three-year tradition, the high
school band director, Leslie Moffat (“Moffat”), permitted the
graduating members of her Wind Ensemble to select a piece
from their musical repertoire which they wished to perform
during the ceremony. Though all three previous classes had
selected “On a Hymnsong of Philip Bliss,” the 2006 gradu-
ates, including Nurre, chose instead to perform “Ave Maria,”
which they believed showcased their talent and the culmina-
tion of their instrumental work. Moffat sent this title and other
graduation selections—including, inter alia, “Pomp and
Circumstance”—to Cheshire for approval. Cheshire immedi-
ately recognized “Ave Maria” as a religious piece. Recalling
prior complaints over the 2005 religious musical selection,
instead of approving them, he forwarded the lists on to the
District’s associate superintendent Karst Brandsma
(“Brandsma”).
District administrators, including Brandsma and White-
head, then held a meeting to determine the appropriateness of
performing “Ave Maria” at the JHS graduation. They deter-
mined that because the title and meaning of the piece had reli-
12738 NURRE v. WHITEHEAD
gious connotations—and would be easily identified as such by
attendees merely by the title alone—they would ask the Wind
Ensemble to select another piece. Brandsma then sent an e-
mail to all principals in the District explaining that musical
selections for all graduations within the District should be
purely secular in nature. The e-mail also reminded the princi-
pals that while District policies typically permitted perfor-
mance of religious music at mid-year concerts—so long as it
was performed for its artistic value and alongside an equal
number of other non-religious works—graduation was a
unique event where such contemporaneous balanced perfor-
mances were impracticable. Following this direction, Nurre
and the other senior Wind Ensemble members reluctantly
elected to perform the fourth movement of Gustav Holst’s
“Second Suite in F for Military Band.”
Nurre filed suit in the Western District of Washington
bringing three 42 U.S.C. § 1983 claims alleging violations of
her rights under the First Amendment and the Equal Protec-
tion Clause. In 2007, the district court held that Whitehead
was immune from suit under the doctrine of qualified immu-
nity. Nurre v. Whitehead, 520 F. Supp. 2d 1222, 1240 (W.D.
Wash. 2007). The court also found that the District had not
violated any of Nurre’s constitutionally protected rights, and
therefore no municipal liability could attach to the District
through Whitehead in her official capacity. Id. at 1228-36,
1240-42. All claims for injunctive relief were dismissed
because those claims became moot upon Nurre’s graduation
from JHS. Id. at 1226. Nurre timely appeals.
II
We review a district court’s grant of summary judgment de
novo. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896
(9th Cir. 2008). In determining whether summary judgment
was appropriate, we view the evidence in the light most favor-
able to Nurre, the non-moving party. Id. A grant of summary
judgment is inappropriate if there is “any genuine issue of
NURRE v. WHITEHEAD 12739
material fact or the district court incorrectly applied the sub-
stantive law.” Blankenhorn v. City of Orange, 485 F.3d 463,
470 (9th Cir. 2007).
III
All § 1983 claims must be premised on a constitutional vio-
lation. See Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.
1997) (“To state a claim for relief under section 1983, the
Plaintiffs must plead two essential elements: 1) that the
Defendants acted under color of state law; and 2) that the
Defendants caused them to be deprived of a right secured by
the Constitution and laws of the United States.”) (citing
Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir. 1983)). If
the government official, in this case Superintendent White-
head, did not violate the claimant’s rights under the Constitu-
tion, no relief lies within the statute, whether the official is
sued in her individual or official capacity.3 42 U.S.C. § 1983.
Because we hold that Nurre’s rights were not violated, her
action against Whitehead must fail.
3
If, as our colleague Judge Milan Smith contends, Whitehead had vio-
lated Nurre’s constitutional rights, we would then need to determine
whether she was protected by qualified immunity. Harlow v. Fitzgerald,
457 U.S. 800, 806-807 (1982). We agree with Judge Smith that the state
of the law is such that no reasonable school administrator would have
known that such action would violate constitutional rights and qualified
immunity would attach to Whitehead. Because qualified immunity does
not apply to municipalities, we would then have to determine under
Monell whether the Everett School District is liable for acts taken in fur-
therance of district policy by Whitehead. Leatherman v. Tarrant County
Narcotics Intelligence & Coordination, 507 U.S. 163, 166-167 (1993); see
also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 693 (1978) (hold-
ing that local governments and their entities may be sued when an “official
policy is responsible for a deprivation of rights protected by the Constitu-
tion”). However, because there was no constitutional violation in this case
—a prerequisite for finding liability against either the superintendent or
the school district—we need not determine whether qualified immunity
applies or municipal liability attaches.
12740 NURRE v. WHITEHEAD
Nurre first claims that Whitehead censored her speech—
i.e., her performance of instrumental music—in violation of
the First Amendment’s protection of free speech. Second, she
claims that Whitehead acted with hostility toward religion in
violation of the First Amendment’s Establishment Clause.
Finally, she argues that in treating her and her classmates dif-
ferently than past JHS graduating classes, Whitehead violated
the Equal Protection Clause of the Fourteenth Amendment.
We examine each in turn.
A
[1] The First Amendment declares that “Congress shall
make no law . . . abridging the freedom of speech.” U.S.
CONST. amend. I. It is applicable to the states through the
Fourteenth Amendment, and the Supreme Court has, on mul-
tiple occasions, reminded us that “students do not ‘shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate.’ ” Morse v. Frederick, 551 U.S. 393, 127
S. Ct. 2618, 2622 (2007) (quoting Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)). However,
our precedent also recognizes that “the constitutional rights of
students in public school are not automatically coextensive
with the rights of adults in other settings,” Bethel Sch. Dist.
No. 403 v. Fraser, 478 U.S. 675, 682 (1986), and that stu-
dents’ rights “must be applied in light of the special character-
istics of the school environment.” Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260, 266 (1988) (internal quotation
marks and citation omitted).
[2] As a threshold matter, we first decide whether the music
Nurre sought to perform constitutes protected speech. It is
clear to us that purely instrumental music—i.e., music with no
lyrics—is speech. In Ward v. Rock Against Racism, 491 U.S.
781, 790 (1989), the Supreme Court noted that “[m]usic is
one of the oldest forms of human expression,” and “as a form
of expression and communication, [it] is protected under the
First Amendment.” And, in Hurley v. Irish-American Gay,
NURRE v. WHITEHEAD 12741
Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569
(1995), the Court explained that “the Constitution looks
beyond written or spoken words as mediums of expression,”
and protects, under the First Amendment, the “painting of
Jackson Pollock, music of Arnold Schöenberg, or Jabber-
wocky verse of Lewis Carroll.” Then, in White v. City of
Sparks, 500 F.3d 953, 955 (9th Cir. 2007), we said that both
“arts and entertainment constitute protected forms of expres-
sion,” including “music without words.” Nurre and her class-
mates sought to perform an entirely instrumental arrangement
of Franz Biebl’s “Ave Maria,”4 which we hold is speech as
contemplated by the First Amendment.
However, our determination that the requested performance
would have been speech does not end our inquiry. The next
question is whether Nurre’s right to engage in that speech was
in some way abridged. “Nothing in the Constitution requires
the Government freely to grant access to all who wish to exer-
cise their right to free speech on every type of Government
property without regard to the nature of the property or to the
disruption that might be caused by the speaker’s activities.”
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 799-800 (1985). Therefore, we must determine the type
of forum created by the government when Nurre sought to
perform “Ave Maria”—that is, the relevant forum—and then
assess whether the District’s restriction was constitutionally
permissible in light of that forum.
First, while schools are typically non-public fora, they may
become a public forum “if school authorities have ‘by policy
or by practice’ opened those facilities ‘for indiscriminate use
by the general public,’ or by some segment of the public, such
as student organizations.” Hazelwood, 484 U.S. at 267 (quot-
4
While Franz Biebl’s “Ave Maria” does include words to the well-
known prayer, and the arrangement available for high school wind ensem-
ble includes them between each staff in the score, Moffat had the Wind
Ensemble perform the piece sans lyrics.
12742 NURRE v. WHITEHEAD
ing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460
U.S. 37, 46 n.7, 47 (1983)). Nurre does not claim that a
school, or even a graduation ceremony, is normally anything
but a non-public forum. Instead, she argues that school
administrators created, in this instance, a “limited public
forum” by permitting students to select musical pieces to per-
form during graduation. “[T]he term ‘limited public forum’
. . . refer[s] to a type of nonpublic forum that the government
intentionally has opened to certain groups or to certain top-
ics.” DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196
F.3d 958, 965 (9th Cir. 1999).
[3] We have never definitively determined what forum is
created when a school district holds graduation, or, as in this
case, when part of the graduation ceremony presents student-
selected work.5 However, we need not answer the question, as
the District does not challenge Nurre’s contention that a lim-
ited public forum existed here. Instead, it simply argues that
the restriction placed on Nurre was reasonable in light of the
purpose served by graduation ceremonies. Therefore, we
assume, without deciding, that a limited public forum was
created.
5
Though we considered student speech at graduation in both Lassonde
v. Pleasanton Unified School District, 320 F.3d 979 (9th Cir. 2003), and
Cole v. Oroville Union High School District, 228 F.3d 1092 (9th Cir.
2000), we did not find those cases appropriate for making a forum deter-
mination. Instead, we held there that the dangers of entangling religious
speech into a convocation where the audience was essentially captive and
composed of impressionable adolescents outweighed the individual’s
interest in presenting proselytistic speech. Lassonde, 320 F.3d at 983;
Cole, 228 F.3d at 1101. See also Doe v. Madison Sch. Dist. No. 321, 177
F.3d 789, 799 (9th Cir. 1999) (en banc) (dismissing for lack of jurisdiction
suit against school district for censorship of graduation speech); Harris v.
Joint Sch. Dist. No. 241, 41 F.3d 447 (9th Cir. 1994), cert. granted and
judgment vacated 515 U.S. 1154 (1995), and cert. granted and judgment
vacated sub nom. Citizens Pres. Am.’s Heritage, Inc. v. Harris, 515 U.S.
1155 (1995) (where the Supreme Court ordered the case dismissed as
moot, including, inter alia, the lower court’s holding regarding forum at
a graduation).
NURRE v. WHITEHEAD 12743
Second, we must align the proper constitutional test with
the forum created. “In a nonpublic forum opened for a limited
purpose, restrictions on access ‘can be based on subject matter
. . . so long as the distinctions drawn are reasonable in light
of the purpose served by the forum’ and all the surrounding
circumstances.” DiLoreto, 196 F.3d at 967 (alterations in
original) (quoting Cornelius, 473 U.S. at 806, 809); see also
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S.
819, 829 (1995); Lamb’s Chapel v. Ctr. Moriches Union Free
Sch. Dist., 508 U.S. 384, 392-93 (1993). “The ‘reasonable-
ness’ analysis focuses on whether the limitation is consistent
with preserving the property for the purpose to which it is
dedicated.” Id. For example, in DiLoreto, we found that a Dis-
trict’s concern regarding disruption and controversy were
legitimate reasons for restricting content, given the fact that
the forum was a fence at a high school baseball park and the
audience included impressionable adolescents in a school set-
ting. 196 F.3d at 697. The Third Circuit has also recognized
that a school acts reasonably when it takes steps to avoid con-
troversy or maintain an appearance of neutrality. Brody ex rel.
Sugzdinis v. Spang, 957 F.2d 1108, 1122 (3d Cir. 1992) (cit-
ing Cornelius, 473 U.S. at 811) (noting, in remanding to the
district court for further fact finding, that a consent-decree
provision which expressly restricts a student’s proselytistic
speech at graduation might be a valid restriction in a limited
public forum); Student Coal. for Peace v. Lower Merion Sch.
Dist. Bd. of Sch. Dirs., 776 F.2d 431, 437 (3d Cir. 1985)
(where the court held that banning the use of school facilities
for an anti-nuclear exposition was a reasonable restriction on
a student organization when the school acted to both avoid
political controversy and appear neutral).
[4] Here, the District was acting to avoid a repeat of the
2005 controversy by prohibiting any reference to religion at
its graduation ceremonies. District administrators recognized
the evident religious nature of “Ave Maria” and took into con-
sideration the compulsory nature of a graduation ceremony.
See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 115
12744 NURRE v. WHITEHEAD
(2001) (“[W]e conclude[ ] that attendance at the graduation
exercise was obligatory.”); Lassonde, 320 F.3d at 985 (“The
graduation ceremony was a school-sponsored function that all
graduating seniors could be expected to attend.”). Further-
more, the District’s policies regarding religious musical per-
formance at traditional concerts evidence a desire to remain
neutral with regard to all religions, and perform pieces for
their artistic value alongside other comparable selections.
While these ceremonies are held to celebrate and showcase
students’ achievements, the practical limitations of a gradua-
tion ceremony preclude performance of comparable pieces.
[5] Contrary to Judge Milan Smith’s understanding of our
holding, we do not seek to remove all religious musical work
from a school ensemble’s repertoire. Nor do we intend to sub-
stantially limit when such music may be played. We agree
with him that religious pieces form the backbone of the musi-
cal arts. To ignore such a fact would be to dismiss centuries
of music history. Instead, we confine our analysis to the nar-
row conclusion that when there is a captive audience at a
graduation ceremony, which spans a finite amount of time,
and during which the demand for equal time is so great that
comparable non-religious musical works might not be pre-
sented, it is reasonable for a school official to prohibit the per-
formance of an obviously religious piece.
[6] We therefore hold that the District’s action in keeping
all musical performances at graduation “entirely secular” in
nature was reasonable in light of the circumstances surround-
ing a high school graduation, and therefore it did not violate
Nurre’s right to free speech.6
6
We note that this is not a case involving viewpoint discrimination,
which would be impermissible no matter the forum. Nurre concedes that
she was not attempting to express any specific religious viewpoint, but
that she sought only to “play a pretty piece.” See Rosenberger, 515 U.S.
at 829 (“When the government targets not subject matter, but particular
views taken by speakers on a subject, the violation of the First Amendment
is [viewpoint discrimination] . . . . The government must abstain from reg-
ulating speech when the specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the restriction.” (emphases
added)).
NURRE v. WHITEHEAD 12745
B
[7] Nurre next claims that the District violated the Estab-
lishment Clause of the First Amendment by acting in a man-
ner hostile toward religion. The Supreme Court has explained
that the Constitution “affirmatively mandates accommodation,
not merely tolerance, of all religions, and forbids hostility
toward any.” Lynch v. Donnelly, 465 U.S. 668, 673 (1984).
We apply the traditional test set forth by the Court in Lemon
v. Kurtzman, 403 U.S. 602 (1971), to determine whether the
District has acted with hostility toward religion. Catholic
League v. San Francisco, 567 F.3d 595, 599 (9th Cir. 2009);
see also Am. Family Ass’n, Inc. v. San Francisco, 277 F.3d
1114, 1121 (9th Cir. 2002), cert. denied, 537 U.S. 886 (2002)
(“Although the Lemon test is perhaps most frequently used in
cases involving government allegedly giving preference to a
religion, the Lemon test accommodates the analysis of a claim
brought under a hostility to religion theory as well.”).
The Lemon test analyzes whether the government’s actions
have offended the Establishment Clause. In order for govern-
mental conduct to survive the test, and therefore be found to
not violate the Clause, the conduct must (1) have a secular
purpose, (2) not have as its principal or primary effect the
advancement or inhibition of religion, and (3) not foster an
excessive governmental entanglement with religion. Lemon,
403 U.S. at 612-13.
1
[8] “The purpose prong of the Lemon test asks whether
government’s actual purpose is to endorse or disapprove of
religion.” Kreisner v. City of San Diego, 1 F.3d 775, 782 (9th
Cir. 1993) (quoting Lynch, 465 U.S. at 690 (O’Connor, J.,
concurring)). Here, we look to see whether the “government
acts with the ostensible and predominant purpose” of inhibit-
ing religion. McCreary County v. ACLU, 545 U.S. 844, 860
(2005). “A reviewing court must be ‘reluctant to attribute
12746 NURRE v. WHITEHEAD
unconstitutional motives’ to government actors in the face of
a plausible secular purpose.” Kreisner, 1 F.3d at 782 (quoting
Mueller v. Allen, 463 U.S. 388, 394-95 (1983)). We have
made it clear that “[g]overnmental actions taken to avoid
potential Establishment Clause violations have a valid secular
purpose under Lemon.” Vasquez v. L.A. County, 487 F.3d
1246, 1255 (9th Cir. 2007), cert. denied, 128 S. Ct. 711(2007). Any other standard would prove unworkable. Id.[9] The District admitted, and Nurre does not contest, that
it prohibited the Wind Ensemble’s performance of “Ave
Maria” in an effort to avoid conflict with the Establishment
Clause.7 Therefore we find the first prong of the Lemon test
satisfied.
2
The second prong of the Lemon test requires us to deter-
mine if the District’s action has a “principal or primary effect
. . . that . . . advances [or] inhibits religion.” 403 U.S. at 612.
“Governmental action has the primary effect of advancing or
disapproving of religion if it is sufficiently likely to be per-
ceived by adherents of the controlling denominations as an
endorsement, and by the nonadherents as a disapproval, of
their individual religious choices.” Vasquez, 487 F.3d at 1256(internal citation and quotation marks omitted). This is an
objective test, asking whether a reasonable observer who is
“informed . . . [and] familiar with the history of the govern-
ment practice at issue,” would perceive the action as having
a predominately non-secular effect. Id. (alteration in original)
(internal citation and quotation marks omitted). As we noted
in Catholic League, “whereas in the purpose inquiry, we are
reluctant to attribute unconstitutional motives to government
7
We part ways with Judge Smith’s determination that Whitehead did not
act to avoid an Establishment Clause violation. There was no evidence in
the record to suggest any other reason for her action to apply the district’s
neutrality policy.
NURRE v. WHITEHEAD 12747
actors in the face of a plausible secular purpose, no such pre-
sumption applies in the effects analysis.” 567 F.3d at 604 n.9
(internal citations and quotation marks omitted). The “objec-
tive observer” here is presumed to comprehend the “differ-
ence between what the government intends and what it
produces,” because he must understand the effect of what was
actually conveyed. Id.To determine whether the primary message had a disap-
proving effect on religion, we must view the restriction “as a
whole.” Am. Family Ass’n, 277 F.3d at 1122; see also Catho-
lic League, 567 F.3d at 605. Because the message can be
impacted by its context, it is important to not separate por-
tions of the restriction and view them in isolation. Catholic
League, 567 F.3d at 605 (citing Lynch, 465 U.S. at 694(O’Connor, J., concurring)). We will view the restriction in its
totality and in light of the surrounding circumstances. Id.In Vasquez, we considered whether removal of a cross from
public land showed governmental hostility toward religion.
We said no, finding that removal was “more reasonably
viewed as an effort to restore [the government’s] neutrality
and to ensure their continued compliance with the Establish-
ment Clause.” Vasquez, 487 F.3d at 1257. The action was
taken “only after the presence of crosses on other municipal
seals had been held to be unconstitutional.” Id.[10] Similarly, here the District took actions reasonably
perceived as an attempt to avoid conflict with the Establish-
ment Clause. The year prior to Nurre’s graduation, ceremony
attendees had complained that the choir’s performance of a
musical piece referencing angels, God, and heaven illustrated
the District’s preference for one type of religion over another.
Permitting a performance of “Ave Maria”—an obviously reli-
gious piece based on the title printed in the program—at grad-
uation could have had the same impact. A reasonable person,
informed as to the history of the District’s prohibition on the
Wind Ensemble’s performance, would understand that the
12748 NURRE v. WHITEHEAD
action had the secular effect of maintaining neutrality and
ensuring the District’s continued compliance with the Estab-
lishment Clause.
3
[11] The final prong of the Lemon test seeks to bar govern-
mental conduct that “foster[s] excessive government[al]
entanglement with religion.” 403 U.S. at 613. “[T]he Estab-
lishment Clause does not prohibit all entanglements; only
excessive ones that demonstrate that a government program
has the impermissible effect of advancing [or evidencing hos-
tility toward] religion.” Prince v. Jacoby, 303 F.3d 1074,
1096 (9th Cir. 2002), cert. denied, 540 U.S. 813 (2003). “En-
tanglement is a question of kind and degree,” Lynch, 465 U.S.
at 684, and this “prong seeks to minimize the interference of
religious authorities with secular affairs and secular authori-
ties in religious affairs.” Cammack v. Waihee, 932 F.2d 765,
780 (9th Cir. 1991).
As we have explained, there are two types of entanglement:
administrative entanglement and political entanglement. Ver-
non v. City of L.A., 27 F.3d 1385, 1399 (9th Cir. 1994); see
also Lemon, 403 U.S. at 619-23. “Administrative entangle-
ment typically involves comprehensive, discriminating, and
continuing state surveillance of religion.” Vernon, 27 F.3d at
1399. “[P]olitical entanglement [occurs when] political divi-
siveness result[s] from government action which divides citi-
zens along political lines,” and by itself is insufficient to
constitute excessive entanglement. Id. at 1401; Am. Family
Ass’n, 277 F.3d at 1123; Cammack, 932 F.2d at 781.
[12] While Nurre makes a credible claim that there was
entanglement, she fails to make any concrete arguments
regarding which type of entanglement existed. Therefore, we
consider both. First, as we stated in Brown v. Woodland Joint
Unified School District, 27 F.3d 1373, 1384 (9th Cir. 1994),
“one-time review, which was conducted in response to [ ]
NURRE v. WHITEHEAD 12749
complaints . . . clearly does not cause the School District to
become entangled with religion.” See also Catholic League,
567 F.3d at 609 (Berzon, J., concurring) (noting that the reso-
lutions at issue “were not repeated or pervasive, but dis-
crete”). Here, the District requested that all music remain
secular in direct response to multiple complaints that the JHS
graduation had included religious music in the past. This
inquiry occurred only once that year and was done merely by
reviewing song titles for overtly religious references. Further,
there is no evidence that the policy sent via e-mail from
Brandsma to the District’s high school principals applied to
anything other than graduation or that it trumped the existing
District policy for any other musical performances.
[13] Second, the policy at issue did not create political
entanglement. Importantly, “the political entanglement
inquiry seems to be applied mainly in cases involving direct
financial subsidies paid to parochial schools or to teachers in
parochial schools.” Vernon, 27 F.3d at 1401 (citations omit-
ted). It is obvious that this type of entanglement is not at issue
here. Also, absent from the record is any evidence that this
policy caused political divisiveness. We do not engage in
hypothesizing about what political response might occur in
such a case. As Justice O’Connor noted in Lynch, “[g]uessing
the potential for political divisiveness inherent in a govern-
ment practice is simply too speculative an enterprise.” 465
U.S. at 689 (O’Connor, J., concurring).
[14] Because we find that the District satisfied all three
prongs of the Lemon test, we hold that its conduct did not vio-
late the Establishment Clause.
Finally, we also wish to make clear that we do not hold that
the performance of music, even “Ave Maria,” would neces-
sarily violate the Establishment Clause. We hold only that
Whitehead’s actions were reasonable in light of her past expe-
rience and her understanding of the law and did not violate
Nurre’s constitutional rights.
12750 NURRE v. WHITEHEAD
C
[15] Nurre’s final claim is that the District violated her
right to equal protection of the law under the Fourteenth
Amendment. She argues that the District unreasonably treated
her, and the other senior Wind Ensemble members, differently
than past classes who were permitted to select the music per-
formed. She attempts to invoke the “class of one” theory, set
forth by the Supreme Court in Village of Willowbrook v.
Olech, 528 U.S. 562, 564-65 (2000) (per curiam). “When an
equal protection claim is premised on unique treatment rather
than on a classification, the Supreme Court has described it as
a ‘class of one’ claim.” N. Pacifica LLC v. City of Pacifica,
526 F.3d 478, 486 (9th Cir. 2008) (citing Vill. of Willow-
brook, 528 U.S. at 564). Neither we, nor the Supreme Court,
have ever applied a “class of one” theory in this context and
we do not extend it to cover this case.
[16] To the extent Nurre claims—apart from her “class of
one” argument—that the District violated the Equal Protec-
tion Clause, we apply rational basis review. This is because
“a classification neither involving fundamental rights nor pro-
ceeding along suspect lines . . . cannot run afoul of the Equal
Protection Clause if there is a rational relationship between
disparity of treatment and some legitimate governmental pur-
pose.” Cent. State Univ. v. Am. Ass’n of Univ. Professors, 526
U.S. 124, 127-28 (1999) (alteration in original) (internal quo-
tation marks and citations omitted). A claim that one group of
graduates was permitted to select a song for graduation while
another was not certainly involves neither a fundamental right
nor a suspect class.
[17] The District had a legitimate interest in avoiding what
it believed could cause confrontation with the Establishment
Clause. Cf. Capitol Square Review & Advisory Bd. v. Pinette,
515 U.S. 753, 761-62 (1995) (holding “that compliance with
the Establishment Clause is a state interest sufficiently com-
pelling to justify . . . restrictions on speech”). Its requirement
NURRE v. WHITEHEAD 12751
that all musical selections be secular was a reasonable action
taken to avoid confrontation with the Establishment Clause.
Because the District’s action passes muster under rational-
basis review, it did not violate Nurre’s rights under the Equal
Protection Clause.
IV
We hold that Nurre’s equitable claims are moot now that
she has graduated from Jackson High School. While Nurre
could maintain a post-graduation claim for monetary dam-
ages, we hold that the district court properly granted summary
judgment to the defendants—Whitehead and the District—
because Nurre failed to show any constitutional violation.
AFFIRMED.
MILAN D. SMITH, JR., Circuit Judge, dissenting in part, but
concurring in the judgment:
I write separately because I disagree with the majority’s
conclusion that banning the playing of an instrumental version
of the musical number Ave Maria at the Jackson High School
graduation ceremony was a reasonable restraint on freedom of
expression. I would hold that, in prohibiting Nurre and her
classmates from playing their selected piece of music, the
School District misjudged the Establishment Clause’s require-
ments and, in so doing, violated Nurre’s First Amendment
rights.1 I am concerned that, if the majority’s reasoning on this
issue becomes widely adopted, the practical effect will be for
public school administrators to chill—or even kill—musical
and artistic presentations by their students in school-
1
I agree with the majority that there was no violation of either the First
Amendment Establishment Clause or the Fourteenth Amendment Equal
Protection Clause.
12752 NURRE v. WHITEHEAD
sponsored limited public fora where those presentations con-
tain any trace of religious inspiration, for fear of criticism by
a member of the public, however extreme that person’s views
may be.
The First Amendment neither requires nor condones such
a result. The taking of such unnecessary measures by school
administrators will only foster the increasingly sterile and
hypersensitive way in which students may express themselves
in such fora, and hasten the retrogression of our young into a
nation of Philistines, who have little or no understanding of
our civic and cultural heritage. Nonetheless, as much as I
deplore what was done in this case, because the relevant guid-
ing principles in this area are unsettled, I believe that Dr.
Whitehead and the School District are entitled to qualified
immunity, and I therefore concur in the judgment.
The School District concedes that the graduation ceremony
in this case was a limited public forum. Assuming, as the
majority does, that such is the case, the restrictions imposed
in this instance pass muster only if the restrictions are: (1)
viewpoint neutral and (2) reasonable in light of the purpose
served by the forum. Faith Ctr. Church Evangelistic Minis-
tries v. Glover, 480 F.3d 891, 907-08 (9th Cir. 2007) (“ ‘The
challenged regulation need only be reasonable, as long as the
regulation is not an effort to suppress the speaker’s activity
due to disagreement with the speaker’s view.’ ” (quoting Int’l
Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 679
(1992))), overruled on other grounds by Winter v. Natural
Res. Def. Council, 129 S. Ct. 365, 375 (2008). I believe that
the School District’s restriction here fails that test. Though the
prohibition was viewpoint neutral, it was not “reasonable in
light of the purpose served by the forum,” id. at 897.
To gauge the reasonableness of the School District’s
restriction, it is important first to appreciate the far-reaching
influence of religion and religious institutions on music. It is
undisputed that much of the music composed in the Western
NURRE v. WHITEHEAD 12753
World during the musical eras known as the medieval,
baroque, and classical periods was fostered by one or more of
the major European Christian denominations. See Doe v. Dun-
canville Ind. Sch. Dist., 70 F.3d 402, 407 (5th Cir. 1995)
(crediting testimony that “60-75 percent of serious choral
music is based on sacred themes or text”); Richard Collin
Mangrum, Shall We Sing? Shall We Sing Religious Music in
Public Schools?, 38 CREIGHTON L. REV. 815, 866 (2005)
(“[A]pproximately forty-four percent of the music recom-
mended by the Music Educators National Conference for
inclusion in the public school curriculum—for the secular
purposes of preserving ‘America’s vast and varied music
heritage,’—has religious significance.”); ALL MUSIC GUIDE TO
CLASSICAL MUSIC 1539 (Chris Woodstra, et al. eds., Backbeat
Books 2005) (noting Pope Gregory’s role in spurring medi-
eval monophonic Gregorian chants); id. at 1541 (describing
how “Protestantism’s emphasis on the Scriptures” signifi-
cantly influenced J.S. Bach’s baroque compositions).
Though largely fostered in connection with the church,
some of these religiously-prompted works are now performed
primarily to express an artistic, secular message. As a result,
current popular music comprises a significant number of
works that, though originally inspired by religion, have since
become largely secularized. Handel’s Hallelujah Chorus from
The Messiah, Steffen and Ward Howe’s The Battle Hymn of
the Republic, Beethoven’s Ode to Joy, Mozart’s Requiem
Mass in D minor, and Purvis and Black’s When the Saints Go
Marching In, are but a few examples. When performed instru-
mentally and without lyrics, moreover, these and similar
pieces take on an even more secular character.
Though it is a more contemporary composition, the Jackson
High School students’ selected piece is one such work. It is
an arrangement for wind instruments originally written by
twentieth-century German composer Franz Biebl. Biebl com-
posed the original work in 1964 for performance, not in a
church, but by a firemens’ chorus. Here, the purpose of the
12754 NURRE v. WHITEHEAD
graduation ceremony—including the wind ensemble’s perfor-
mance of the piece—was to acknowledge the achievements of
the Jackson High School students. That recognition included
the opportunity to express themselves through speech and
music.
The School District justified its decision to prohibit the per-
formance by citing its goal of making the event “entirely sec-
ular in nature.”2 In my view, purging such a ceremony of all
vestiges of religiously inspired art and culture—including
those works with even the most attenuated connections to
religion—did not advance the purpose of recognizing and pro-
viding a forum for student achievement. To the contrary,
given religion’s pervasive influence on classical music dis-
cussed above, the censorship did the opposite, curtailing the
students’ secular artistic expression. That prohibition was
therefore unreasonable in light of the forum’s purpose.
Taking a contrary view, the majority relies on our decision
in DiLoreto v. Downey Unified School District Board of Edu-
cation, 196 F.3d 958, 967 (9th Cir. 1999), as well as out-of-
circuit cases, Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108,
1122 (3d Cir. 1992), and Student Coalition for Peace v.
Lower Merion School District Board of School Directors, 776
F.2d 431, 437 (3d Cir. 1985), to support its conclusion that
the ban was reasonable in light of the forum’s purpose. None
of these cases, however, is on point. In DiLoreto, we held that
it was reasonable for a school district to prohibit a large ban-
ner advertisement of the Ten Commandments—an obvious
attempt at proselytization—on school property. See 196 F.3d
at 962, 967. In Brody, the Third Circuit noted that restricting
2
In marked contrast to what was done in this case, in previous years the
School District had condoned the ensemble’s playing a piece titled On a
Hymnsong of Phillip Bliss at the school’s graduation ceremony. A “hymn”
is defined as, among other things, a “song of praise to God” and a “metri-
cal composition adapted for singing in a religious service.” WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 1111 (2002).
NURRE v. WHITEHEAD 12755
a student’s overtly evangelizing graduation speech would be
acceptable. 957 F.2d at 1122. And in Student Coalition for
Peace, the court held that a school district could prohibit a
large partisan political rally on school grounds that could
potentially generate significant controversy and disruption.
776 F.2d at 437.
Unlike in Student Coalition for Peace, the wind ensemble’s
playing of Ave Maria here would not have risked creating a
disruption or generating appreciable controversy. In that
sense, the piece is distinguishable from Up Above My Head,
the song performed at the Jackson High School 2005 gradua-
tion, which proclaimed, “I hear music in the air, oh Lord. . . .
I really do believe there’s a heaven somewhere” and which,
according to Whitehead, contained references to Jesus Christ.
In contrast, the playing of the Ave Maria arrangement could
not have reasonably been interpreted to convey a religious
message, nor was any such message intended. Rather, as
Nurre stated, it was simply “a pretty piece.” She further
explained that, “it’s the kind of piece that can make your
graduation memorable because we actually learned to play it
really well. And we wanted to play something that we
enjoyed playing.” For this reason, unlike as in DiLoreto, the
performance would not have been viewed as proselytizing; as
stated, the arrangement contains no words at all.
Though the majority does not reach this issue, the censor-
ship also cannot be justified by relying on the so-called Estab-
lishment Clause defense. That defense is available only if the
District’s “refusal to allow the students to [perform Ave
Maria] as part of the graduation was necessary to avoid vio-
lating the Establishment Clause.” Cole v. Oroville Union High
Sch. Dist., 228 F.3d 1092, 1101 (9th Cir. 2000) (citing Santa
Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weis-
man, 505 U.S. 577 (1992)); see also Hills v. Scottsdale Uni-
fied Sch. Dist., 329 F.3d 1044 (9th Cir. 2003). A school
district may be obligated to censor religious messages for two
reasons: (1) “to avoid the appearance of government sponsor-
12756 NURRE v. WHITEHEAD
ship of religion”; and (2) to not “impermissibly coerc[e] . . .
dissenters, requiring them to participate in a religious practice
even by their silence.” Lassonde v. Pleasanton Unified Sch.
Dist., 320 F.3d 979, 983 (9th Cir. 2003) (citing Cole, 228
F.3d at 1101, 1104).
Neither reason is present here. Whitehead stated that she
and the other administrators “made the decision” “because the
title of the piece would be on the program and it’s Ave Maria
and that many people would see that as religious in nature.”
The majority relies on this justification and calls Ave Maria
an “obviously religious piece,” Maj. Op. at n.1, and a “well
known Roman Catholic prayer,” id. at 12744. However, as
stated, the tune is not that of the better-known piece by Schu-
bert, but a relatively obscure contemporary work, unlikely to
trigger a religious association in most audiences. And even
Whitehead, a school administrator with a doctoral degree and
formal training in the place of religion in public schools,
admitted that she did not know the meaning of the words
“Ave Maria,” but only had a vague sense that the term had
some religious origin.3
Simply allowing the playing of a student-selected instru-
mental classical musical piece (with a title in a dead language
whose meaning would be unrecognizable to most attendees of
the graduation) cannot reasonably be construed as “govern-
ment sponsorship of religion,” id. For similar reasons, merely
attending an event where one of the several musical numbers
is an obscure classical piece does not constitute “participat[-
ing] in a religious practice,” id., even if the title of that piece
happens to be a Latin expression for a religious invocation.
While governments have “a compelling interest in not com-
mitting actual Establishment Clause violations,” there is no
3
As amicus for Nurre notes, many common proper nouns for secular
entities have religious origins. For example, the cities Los Angeles (origi-
nally “our lady of the city of the angels”), San Diego (“Saint Didacus”),
and Las Cruces (“the crosses”) each contain overt religious references.
NURRE v. WHITEHEAD 12757
legitimate interest “in discriminating against religion in what-
ever other context it pleases, so long as it claims some con-
nection, however attenuated, to establishment concerns.”
Locke v. Davey, 540 U.S. 712, 730 n.2 (2004) (Scalia, J., dis-
senting) (internal citations omitted). As I see it, that is essen-
tially what occurred here.
I readily acknowledge that no bright lines exist in this com-
plex field of First Amendment law, and I sympathize with
school officials, who often find themselves in a Catch-22,
subject to criticism and potential law suits regardless of the
position they take. Because of this unfortunate reality, I con-
clude that qualified immunity is appropriate in this case. But
I also believe that, unless the courts provide balanced guid-
ance on where those not-so-bright lines lie, we only perpetu-
ate the confusion, encourage further litigation, and stunt
student artistic expression in violation of the First Amend-
ment.