Patterson Buchanan Wins First Amendment Case Before Ninth Circuit

In a 2-1 opinion issued on September 8, 2009, the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of claims brought against Washington's Everett School District by former Jackson High School student Kathryn Nurre. Ms. Nurre had alleged that the school district’s refusal to allow the Jackson High School Wind Ensemble, of which she was a member, to play an instrumental version of “Ave Maria” at Jackson High School’s graduation ceremony violated her federal constitutional rights, including her First Amendment right to free speech and her equal protection rights, and that the school district had violated the Establishment Clause. Patterson Buchanan’s attorneys argued vehemently on behalf of the school district that none of Ms. Nurre’s rights had been violated, and that the district had acted reasonably in order to avoid any Establishment Clause violation. Chief Judge Robert Lasnik of the U.S. District Court for the Western District of Washington agreed with the school district and dismissed all of Ms. Nurre’s claims on summary judgment.

On appeal, the Ninth Circuit affirmed, holding that:

[W]hen 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.

Ms. Nurre has petitioned the U.S. Supreme Court for a Writ of Certiorari only as to the question of whether her free speech rights were violated. On behalf of the school district, Patterson Buchanan's attorneys have filed a motion opposing the petition. As of this writing, the Supreme Court has not yet determined whether it will grant the Writ and hear Ms. Nurre’s appeal.

The case is Nurre v. Whitehead.

Postscript: On March 22, 2010, the U.S. Supreme Court denied the petition for certiorari in the case.