Nurre v. Whitehead, __F.3d___ (9th Cir. Sept. 8, 2009), is an interesting case involving Education and Constitutional Law. The 9th held 2-1 that a Washington school district’s decision to bar the performance of a religious-themed instrumental musical piece at a high school graduation did not violate the student’s rights under the Free Speech, Establishment, and Equal Protection Clauses. A band member filed suit against the superintendent after the group was prohibited from playing an instrumental composition of “Ave Maria” at a JHS graduation ceremony. Complaints and negative publicity over the performance of a spiritual song at an earlier graduation had prompted district officials to direct that all future graduation performances be strictly secular.
The Ninth affirmed the lower court’s decision which granted summary judgment to the school district. Interstingly, the majority found that instrumental music did constitute speech. The appellate court analyzed the speech restrictions on the basis of whether the restrictions were "reasonable in light of the purpose served by the forum and all the surrounding circumstances." It pointed out that the analysis "focuses on whether the limitation is consistent with preserving the property for the purpose to which it is dedicated." Given the prior controversy over performance of religious music and the compulsory nature of a graduation ceremony, the majority held that the decision to limit music performances at graduation to "entirely secular" pieces did not violate the student’s right to free speech. With respect to the student’s claim that the decision in question violated the Establishment Clause because it evinced hostility toward religion, the court applied the three-prong test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971) to the school district’s decision. It found that the stated purpose that it prohibited the student selection in order to avoid conflict with the Establishment Clause satisfied Lemon’s secular purpose prong. Utilizing the reasonable observer test to analyze whether the decision had the primary effect of advancing or disapproving of religion, the majority concluded, given the previous incident involving a religious piece at graduation, that a reasonable observer would perceive the decision as an attempt to avoid another Establishment Clause case. Regarding the excessive entanglement with religion prong, the panel pointed that there are two types of entanglement, administrative and political. The court found no administrative entanglement because enforcement of the restriction is limited to the graduation ceremony. It, likewise, found no political entanglement because there was an absence in the record that the restriction had caused any political divisiveness.
Regarding, the equal protection claim, the majority rejected the student’s argument, based on the "class of one" theory," that she and her seniors were treated differently than previous students who were allowed to select music. It concluded: "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." As to the portion of the equal protection claim that did not rely on the "class of one," the panel reviewed the claim using the rational basis method, because it did not address a classification involving fundamental rights or proceed along suspect lines. The court concluded that the decision passed muster under the Equal Protection Clause because the school district had a legitimate interest in avoiding what officials believed could cause a confrontation with the Establishment Clause.
The dissenting judge on the panel, concurred with the majority's judgment, but only on the basis that the superintendent and the school district were entitled to qualified immunity from the suit. The dissent found the majority's reasoning untenable because the restrictions imposed failed the test applicable to speech in a limited public forum. That test requires that the restrictions are: (1) viewpoint neutral and (2) reasonable in light of the purpose served by the forum. While the judge found the prohibition was viewpoint neutral, he concluded it was not reasonable in light of the purpose served by the forum. He argued that "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." The dissent rejected the majority's conclusion that performing the piece created a risk of creating disruption or generating appreciable controversy. The dissent contended that the prohibition could not be justified on the basis of the so-called Establishment Clause defense because there was no danger of the appearance of government sponsorship of religion and impermissible coercion. Acknowledging that "no bright lines exist in this complex field of First Amendment law," he expressed sympathy for "school officials, who often find themselves in a Catch-22, subject to criticism and potential law suits regardless of the position they take." The dissent. therefore, would find that qualified immunity was appropriate in the present case.
Source: Adjuct Law Prof Blog