Nurre v. Whitehead ( 2009 )


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  •                   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.
    

Document Info

Docket Number: 07-35867

Filed Date: 9/8/2009

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (50)

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drew-brody-jennifer-hohnstine-by-and-through-their-next-friend-joanne , 957 F.2d 1108 ( 1992 )

Robert Allen Howerton, and Roxanna Howerton v. Jess Gabica ... , 708 F.2d 380 ( 1983 )

North Pacifica LLC v. City of Pacifica , 526 F.3d 478 ( 2008 )

White v. City of Sparks , 500 F.3d 953 ( 2007 )

John Doe, Individually and as Next Friend of Jane Doe, a ... , 70 F.3d 402 ( 1995 )

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joseph-j-hills-v-scottsdale-unified-school-district-no-48-barbara-f , 329 F.3d 1044 ( 2003 )

ferrin-cole-chris-niemeyer-and-jason-niemeyer-through-his-guardian-ad-litem , 228 F.3d 1092 ( 2000 )

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nicholas-lassonde-v-pleasanton-unified-school-district-mary-frances , 320 F.3d 979 ( 2003 )

tausha-prince-a-minor-by-and-through-her-parents-james-prince-kimberly , 303 F.3d 1074 ( 2002 )

phyllis-wright-harris-on-her-own-behalf-and-on-behalf-of-her-three , 41 F.3d 447 ( 1994 )

nell-a-cammack-genie-lucas-douglas-paul-root-carolyn-l-stapleton-michele , 932 F.2d 765 ( 1991 )

robert-l-vernon-v-city-of-los-angeles-los-angeles-city-council-board-of , 27 F.3d 1385 ( 1994 )

american-family-association-inc-donald-wildmon-kerusso-ministries-family , 277 F.3d 1114 ( 2002 )

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