Nurre

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 them 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 school-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…

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” 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…

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.

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.

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 necessary actions taken by school administrators to avoid collision with the Establishment Clause. While finding our way is…