Court Upholds Ban on Hymn at Graduation

(CN) - A Washington school district didn't violate the constitutional rights of a high school student by barring her from playing an instrumental version of "Ave Maria" at graduation, the 9th Circuit ruled.

Administrators for Everett School District No. 2 told Kathryn Nurre that she couldn't play the tune at the 2006 graduation ceremony for Henry M. Jackson High School, because it might be seen as an endorsement of religion.

The year before, the principal of a high school in the same district allowed students to sing "Up Above My Head" - a choir piece referring to God, heaven and angels - at graduation. The school district received several complaints about the religiously themed music, and the local newspaper printed indignant letters to the editor about the ceremony.

In light of those complaints, district officials rejected Nurre's proposed performance of "Ave Maria," which means "Hail Mary" in Latin, and told her to select another song.

Nurre sued Dr. Carol Whitehead individually and as district superintendent, claiming the district's decision violated her rights under the First and 14th Amendments.

The three-judge appellate panel in Seattle voted 2-1 to uphold the lower court's dismissal of the case, finding no constitutional violations.

"Here, the District was acting to avoid a repeat of the 2005 controversy by prohibiting any reference to religion at its graduation ceremonies," Judge Tallman wrote.

In a limited forum such as a school's graduation ceremony, the court said, administrators have valid reasons for screening religious music.

The court emphasized that it wasn't trying to remove all religious music from schools, and agreed with dissenting Judge Milan Smith Jr. that "religious pieces form the backbone of the musical arts."

"To ignore such a fact would be to dismiss centuries of music history," Tallman wrote.

"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."

In the dissenting opinion, Smith argued that the school's response wasn't a reasonable restraint on free speech.

"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 ... [that] contain any trace of religious inspiration, for fear of criticism by a member of the public, however extreme that person's views may be," Smith wrote.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit