Nurre v. Whitehead

• Decision Date: 20 September 2007
• Docket Number: No. C06-901RSL.,C06-901RSL.
• Citation: 520 F.Supp.2d 1222
• Court: U.S. District Court — Western District of Washington
• Parties: Kathryn NURRE, Plaintiff, v. Dr. Carol WHITEHEAD, in her individual and official capacity as the Superintendent of Everett School District No. 2, Defendant.

520 F.Supp.2d 1222

Kathryn NURRE, Plaintiff, v. Dr. Carol WHITEHEAD, in her individual and official capacity as the Superintendent of Everett School District No. 2, Defendant.

No. C06-901RSL.

United States District Court, W.D. Washington, at Seattle.

September 20, 2007.

COPYRIGHT MATERIAL OMITTED

W. Theodore Vander Wel, Vander Wel & Jacobson, Bellevue, WA, for Plaintiff.

Michael Alexander Patterson, Patterson, Buchanan, Fobes, Leitch & Kalzer, PS, Seattle, WA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

ROBERT S. LASNIK, District Judge.

I. INTRODUCTION

This matter comes before the Court on "Defendant's Motion for Summary Judgment", (Dkt. # 8) (hereinafter "Motion") and "Plaintiff Nurre's Motion for Summary Judgment Under CR 56(A)" (Dkt. # 17) (hereinafter "Cross-Motion"). In June of 2006, the Henry A. Jackson High School ("JHS") Wind Ensemble was not allowed to perform Franz Biebl's instrumental arrangement of "Ave Maria" at the 2006 JHS graduation ceremony in Everett, Washington. Plaintiff commenced this action claiming that defendant violated plaintiffs rights under the Free Speech, Establishment, and Equal. Protection Clauses of the United States Constitution by prohibiting the performance of "Ave Maria." For the reasons set forth below, the Court grants defendant's Motion and denies plaintiff's Cross-Motion.¹

II. DISCUSSION

A. Background

In June of 2006, plaintiff was a senior at. JHS, which is operated and controlled by Everett School District No. 2 (hereinafter the "School District"). See Dkt. # 18 (Nurre Decl.) at ¶¶ 3-5²; Dkt. # 5 at ¶ 4. During plaintiff's senior year, and for the two prior school years, plaintiff was a member of the JHS Wind Ensemble (hereinafter "Wind Ensemble"). See Dkt. # 18 at ¶ 7. As in previous years, the Wind Ensemble was selected to perform at the 2006 JHS graduation ceremony. Id. at ¶ 10. From at least 2002, the Wind Ensemble's graduating seniors selected an instrumental piece that the Wind Ensemble performed at graduation. See Dkt. # 9, Ex. 3 (Moffat Dep.) at 17:4-15. In 2003-2005, the Wind Ensemble's seniors selected "On a Hymnsong of Phillip Bliss," which was played at graduation. Id. at 31-33. In May 2006, the Wind Ensemble's seniors unanimously selected a different song to play at graduation: an instrumental piece titled "Ave Maria"³ composed by Franz Biebl. Id. at 35; Dkt. # 18 at ¶¶ 12-16. The Wind Ensemble had previously played Franz Biebl's "Ave Maria" at a school music concert. See Dkt. # 19, Ex. A (Moffat Dep.) at 36:14-23.

After the selection of "Ave Maria," the Wind Ensemble's director, Lesley Moffat sent copies of the music to be performed at graduation, including Biebl's "Ave Maria," to JHS's Principal, Terry Cheshire, and to the School District's Associate Superintendent for Instruction, Karst Brandsma. See Dkt. # 9, Ex. 3 (Moffat Dep.) at Dep. Ex. 5. Principal Cheshire forwarded this information to Lynn Evans, the School District's Executive Director of Instruction and Curriculum. See Dkt. # 12 (Cheshire Decl.) at ¶ 3. Ms. Evans, in turn, took the Wind Ensemble's selection of "Ave Maria" to her supervisor, Ms. Brandsma. See Dkt. # 11 (Evans Decl.) at ¶ 3, Thereafter, defendant Whitehead called a meeting with Ms. Brandsma and Ms. Evans to discuss the Wind Ensemble's selection of "Ave Maria." See Dkt. # 9, Ex. 2 (Whitehead Dep.) at 75:24-77:2. At this meeting, the decision was made to "deny the request from the students and the band teacher to play Ave Maria at the commencement." Id. at 77:13-15.

Ms. Moffat was informed of this decision when she received a copy of an e-mail from Ms. Brandsma "requesting that music selections for graduation be entirely secular in nature." See Dkt. # 19, Ex. A (Moffat Dep.) at 38-39; Dep. Ex. 4 (emphasis in original). Ms. Moffat then had a conversation with Principal Cheshire where Ms. Moffat asked whether it would be permissible to change the name of the song or list the name of the song differently in the program. See Dkt. # 12 (Cheshire Decl.) at ¶ 4. Principal Cheshire responded to this request by stating that "it would be unethical to inaccurately CT untruthfully list the titles to pieces." Id.; Dkt. # 9, Ex, 3 (Moffat Dep.) at 40-41. Based on this decision, Ms. Moffat informed the Wind Ensemble that they needed to select a different piece of music to play at graduation. See Dkt. # 9, Ex. 3 (Moffat Dep.) at 41:15-42:5. Ultimately, the Wind Ensemble's seniors selected the fourth movement of the "Hoist Second Suite in F," which was played at the JHS graduation on June 17, 2006. See id. at 42; Dkt. # 10, Ex. 6 (2006 JHS graduation program listing the performance of Gustav Holst's "Second Suite for Military Band").

B. Analysis

This matter comes before the Court on cross-motions for summary judgment on claims arising under 42 U.S.C. § 1983. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). A § 1983 claimant must prove "two essential elements: 1) that the Defendants acted under color of state law; and 2) that the Defendants caused [plaintiff] to be deprived of a right secured by the Constitution and the laws of the United States." Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.1997); 42 U.S.C. § 1983. In her answer, defendant admits that she was acting under the color of the law of the State of Washington. See Dkt. # 5 (Answer) at ¶ 4; Dkt. # 1 (Complaint) at ¶ 4. Accordingly, the Court need only determine whether defendant deprived plaintiff of a constitutional right.⁴

1. Claim for declaratory relief

As an initial matter, in her motion, defendant requests dismissal of plaintiffs claim for declaratory relief⁵ as moot because plaintiff has graduated and will never again participate in an Everett School District graduation ceremony. See Motion at 11. The Court agrees. Now that plaintiff has graduated, her claims for declaratory relief, are dismissed as MOOT. See Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1099 (9th Cir.2000) ("[A] student's graduation moots his claims for declaratory and injunctive relief against school officials"); Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir. 1999) ("[T]he student-plaintiff already has suffered any injury that would result from the alleged forced participation in prayers that were part of the student-plaintiff's graduation ceremony. Because we cannot remedy the student-plaintiff's injury with injunctive or declaratory relief, the student-plaintiffs claims for those forms of relief are moot."). This issue, however, is not dispositive in this case because plaintiff s claims for damages remain. See Dkt. # 1 at 9, ¶ B; Doe, 177 F.3d at 798 ("A student's graduation moots claims for declaratory and injunctive relief, but it does not moot claims for monetary damages"). Therefore, the Court will review the merits of plaintiff's constitutional claims in light of the requested relief for damages.

2. Qualified immunity for defendant as an individual⁶

Defendant claims she is immune from suit based on qualified immunity. See Motion at 11. The Supreme Court has repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation. See Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ("Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings[.]"). Although "[q]ualified immunity shields public officials from money damages only," defendant's qualified immunity defense may resolve all the remaining claims in this action given the Court's ruling above that plaintiff's request for declaratory relief is moot. Morse v. Frederick, ___ U.S. ___, ___ n. 1, 127 S.Ct. 2618, 2624 n. 1, 168 L.Ed.2d 290, ___ n. 1 (2007) ("In this case, Frederick asked not just for damages, but also for declaratory and injunctive relief. Justice Breyer's proposed decision on qualified immunity grounds would dispose of the damages claims, but Frederick's other claims would remain unaddressed.") (internal citation omitted). For these reasons, the Court turns first to defendant's qualified immunity defense.

In reviewing a qualified immunity defense on a motion for summary judgment, the Court is "required to view all facts and draw all reasonable inferences in favor of the nonmoving party." Brosseau v. Haugen, 543 U.S. 194, 195 n. 2, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curium); see also Motley v. Parks, 432 F.3d 1072, 1075 n. 1 (9th Cir.2005) (en banc) (accepting plaintiffs' recitation of the facts because the case arose in the posture of a motion for summary judgment and involved issues of qualified immunity). The Supreme Court in Saucier established a two-part test to resolve claims of qualified immunity. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. In ruling on a qualified immunity defense, "the first inquiry must be whether a Constitutional right would have been violated on the facts alleged; second, assuming the violation is established, the question whether the right was clearly established must be considered[.]" Id. at 200, 121 S.Ct. 2151; Cole, 228 F.3d at 1101. The two parts of this test are discussed, in the order required by Saucier, below.⁷

a. Was a constitutional right violated?

In this case, plaintiff alleges violations of three distinct constitutional rights under: (1) the First Amendment's Free Speech Clause; (2) the First Amendment's Establishment Clause; and (3) the Fourteenth Amendment's Equal Protection Clause. See Dkt. # 1 at 6-9. For clarity, the Court separately considers defendant's qualified immunity defense as applied to these three constitutional claims.

(i). Free Speech

The threshold issue in determining...