FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATHRYN NURRE, 

Plaintiff-Appellant,

No. 07-35867 v.

D.C. No. CAROL WHITEHEAD, in her official  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
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 balance between protecting a student’s right to speak freely and

NURRE v. WHITEHEAD 12735
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”

1

 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.

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 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. 

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. 

2Named in honor of Everett’s native son, former United States Congressman and Senator Henry M. “Scoop” Jackson. 

12736 NURRE v. WHITEHEAD
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 Whitehead, 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 reliNURRE v. WHITEHEAD 12737
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 email 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.

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 favorable to Nurre, the non-moving party. Id. A grant of summary

judgment is inappropriate if there is “any genuine issue of

12738 NURRE v. WHITEHEAD
material fact or the district court incorrectly applied the substantive law.” Blankenhorn v. City of Orange, 485 F.3d 463,

470 (9th Cir. 2007).

III

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 Whitehead, 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.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 violated 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 furtherance 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) (holding that local governments and their entities may be sued when an “official

policy is responsible for a deprivation of rights protected by the Constitution”). 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. 

NURRE v. WHITEHEAD 12739
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 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 multiple 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 students’ rights “must be applied in light of the special characteristics 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,

12740 NURRE v. WHITEHEAD
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 Jabberwocky 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 expression,” including “music without words.” Nurre and her classmates 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 exercise 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 (quot4While Franz Biebl’s “Ave Maria” does include words to the wellknown prayer, and the arrangement available for high school wind ensemble includes them between each staff in the score, Moffat had the Wind

Ensemble perform the piece sans lyrics. 

NURRE v. WHITEHEAD 12741
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 perform 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 topics.” 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 studentselected work.5

 However, we need not answer the question, as

the District does not challenge Nurre’s contention that a limited 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. 

5Though 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 determination. 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). 

12742 NURRE v. WHITEHEAD
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 ‘reasonableness’ 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 District’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 setting. 196 F.3d at 697. The Third Circuit has also recognized

that a school acts reasonably when it takes steps to avoid controversy or maintain an appearance of neutrality. Brody ex rel.

Sugzdinis v. Spang, 957 F.2d 1108, 1122 (3d Cir. 1992) (citing 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 consideration the compulsory nature of a graduation ceremony.

See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 115

NURRE v. WHITEHEAD 12743
(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.”). Furthermore, the District’s policies regarding religious musical performance 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 graduation 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 substantially limit when such music may be played. We agree

with him that religious pieces form the backbone of the musical arts. To ignore such a fact would be to dismiss centuries

of music history. Instead, we confine our analysis to the narrow 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 presented, it is reasonable for a school official to prohibit the performance 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 surrounding a high school graduation, and therefore it did not violate

Nurre’s right to free speech.6

6We 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 regulating speech when the specific motivating ideology or the opinion or

perspective of the speaker is the rationale for the restriction.” (emphases

added)). 

12744 NURRE v. WHITEHEAD
B

[7] Nurre next claims that the District violated the Establishment Clause of the First Amendment by acting in a manner 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 governmental 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 inhibiting religion. McCreary County v. ACLU, 545 U.S. 844, 860

(2005). “A reviewing court must be ‘reluctant to attribute

NURRE v. WHITEHEAD 12745
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 determine 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 perceived 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 government 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

7We 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. 

12746 NURRE v. WHITEHEAD
actors in the face of a plausible secular purpose, no such presumption applies in the effects analysis.” 567 F.3d at 604 n.9

(internal citations and quotation marks omitted). The “objective observer” here is presumed to comprehend the “difference 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 disapproving effect on religion, we must view the restriction “as a

whole.” Am. Family Ass’n, 277 F.3d at 1122; see also Catholic League, 567 F.3d at 605. Because the message can be

impacted by its context, it is important to not separate portions 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 Establishment 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 Establishment 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 religious piece based on the title printed in the program—at graduation 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

NURRE v. WHITEHEAD 12747
action had the secular effect of maintaining neutrality and

ensuring the District’s continued compliance with the Establishment Clause.

3

[11] The final prong of the Lemon test seeks to bar governmental conduct that “foster[s] excessive government[al]

entanglement with religion.” 403 U.S. at 613. “[T]he Establishment Clause does not prohibit all entanglements; only

excessive ones that demonstrate that a government program

has the impermissible effect of advancing [or evidencing hostility toward] religion.” Prince v. Jacoby, 303 F.3d 1074,

1096 (9th Cir. 2002), cert. denied, 540 U.S. 813 (2003). “Entanglement 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 authorities 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. Vernon v. City of L.A., 27 F.3d 1385, 1399 (9th Cir. 1994); see

also Lemon, 403 U.S. at 619-23. “Administrative entanglement typically involves comprehensive, discriminating, and

continuing state surveillance of religion.” Vernon, 27 F.3d at

1399. “[P]olitical entanglement [occurs when] political divisiveness result[s] from government action which divides citizens 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 [ ]

12748 NURRE v. WHITEHEAD
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 resolutions at issue “were not repeated or pervasive, but discrete”). 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 omitted). 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 government 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 violate the Establishment Clause.

Finally, we also wish to make clear that we do not hold that

the performance of music, even “Ave Maria,” would necessarily violate the Establishment Clause. We hold only that

Whitehead’s actions were reasonable in light of her past experience and her understanding of the law and did not violate

Nurre’s constitutional rights. 

NURRE v. WHITEHEAD 12749
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 performed. 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 Willowbrook, 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 Protection Clause, we apply rational basis review. This is because

“a classification neither involving fundamental rights nor proceeding 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 purpose.” Cent. State Univ. v. Am. Ass’n of Univ. Professors, 526

U.S. 124, 127-28 (1999) (alteration in original) (internal quotation 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 compelling to justify . . . restrictions on speech”). Its requirement

12750 NURRE v. WHITEHEAD
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 rationalbasis 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 damages, 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 requirements 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 school1

I agree with the majority that there was no violation of either the First

Amendment Establishment Clause or the Fourteenth Amendment Equal

Protection Clause. 

NURRE v. WHITEHEAD 12751
sponsored limited public fora where those presentations contain 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 guiding 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 Ministries 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

12752 NURRE v. WHITEHEAD
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. Duncanville 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 recommended 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 medieval monophonic Gregorian chants); id. at 1541 (describing

how “Protestantism’s emphasis on the Scriptures” significantly 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 instrumentally 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 composed the original work in 1964 for performance, not in a

church, but by a firemens’ chorus. Here, the purpose of the

NURRE v. WHITEHEAD 12753
graduation ceremony—including the wind ensemble’s performance 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 performance by citing its goal of making the event “entirely secular 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 providing a forum for student achievement. To the contrary,

given religion’s pervasive influence on classical music discussed 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 Education, 196 F.3d 958, 967 (9th Cir. 1999), as well as out-ofcircuit 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 banner 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 “metrical composition adapted for singing in a religious service.” WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY 1111 (2002). 

12754 NURRE v. WHITEHEAD
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 graduation, 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 censorship also cannot be justified by relying on the so-called Establishment 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 violating 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. Weisman, 505 U.S. 577 (1992)); see also Hills v. Scottsdale Unified 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 sponsorNURRE v. WHITEHEAD 12755
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 Schubert, 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 instrumental 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 “government 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 committing actual Establishment Clause violations,” there is no

3As amicus for Nurre notes, many common proper nouns for secular

entities have religious origins. For example, the cities Los Angeles (originally “our lady of the city of the angels”), San Diego (“Saint Didacus”),

and Las Cruces (“the crosses”) each contain overt religious references. 

12756 NURRE v. WHITEHEAD
legitimate interest “in discriminating against religion in whatever other context it pleases, so long as it claims some connection, however attenuated, to establishment concerns.”

Locke v. Davey, 540 U.S. 712, 730 n.2 (2004) (Scalia, J., dissenting) (internal citations omitted). As I see it, that is essentially what occurred here. 

I readily acknowledge that no bright lines exist in this complex 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 conclude that qualified immunity is appropriate in this case. But

I also believe that, unless the courts provide balanced guidance on where those not-so-bright lines lie, we only perpetuate the confusion, encourage further litigation, and stunt

student artistic expression in violation of the First Amendment. 

NURRE v. WHITEHEAD 12757