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Nurre v. Whitehead

September 8, 2009


Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, Chief District Judge, Presiding. D.C. No. CV-06-00901-RSL.

The opinion of the court was delivered by: Tallman, Circuit Judge


Argued and Submitted January 22, 2009 -- Seattle, Washington

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.

Once again we enter the legal labyrinth of a student's First Amendment right to free speech. There exists a delicate balance between protecting a student's right to speak freely and necessary actions taken by school administrators to avoid collision 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"*fn1 at her public high school's graduation ceremony. Dr. Carol Whitehead ("Whitehead"), superintendent 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 violations 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.


Everett School District No. 2 is a large western Washington school district consisting of twenty-five individual schools. The Henry M. Jackson High School*fn2 ("JHS") is one of three high schools within the District. JHS conducts an annual graduation ceremony featuring speakers, musical selections, a presentation 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 Everett.

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 students, family, and friends. Seeing no issue with any piece proposed 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 newspaper, The Everett Herald, printed indignant letters to the editor complaining about religious statements included in the ceremony's music performed before the audience.

As the 2006 graduation neared, Cheshire again previewed the titles to each ensemble's musical selections for the ceremony. 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 graduates, including Nurre, chose instead to perform "Ave Maria," which they believed showcased their talent and the culmination of their instrumental work. Moffat sent this title and other graduation selections-including, inter alia, "Pomp and Circumstance"-to Cheshire for approval. Cheshire immediately 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 determined that because the title and meaning of the piece had religious 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 principals that while District policies typically permitted performance 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 performances 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 Protection Clause. In 2007, the district court held that Whitehead was immune from suit under the doctrine of qualified immunity. 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.


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 favorable to Nurre, the non-moving party. Id. A grant of summary judgment is inappropriate if there is "any genuine issue of material fact or the district court incorrectly applied the substantive law." Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007).


All § 1983 claims must be premised on a constitutional violation. 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 Constitution, no relief lies within the statute, whether the official is sued in her individual or official capacity.*fn3 42 U.S.C. § 1983. Because we hold that Nurre's rights were not violated, her action against Whitehead must fail.

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 differently than past JHS graduating ...

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