Court Upholds Ban on "Ave Maria" at Graduation
SEATTLE, Wash. -- A federal appeals court has upheld a school's decision to forbid a student woodwind ensemble's performance of the instrumental piece "Ave Maria" at a high school graduation ceremony. Attorneys for The Rutherford Institute, who will seek review of the decision before the U.S. Supreme Court, had filed suit against the Everett School District, charging that the school's actions violated student Kathryn Nurre's right to freedom of speech.
A panel of the Court of Appeals for the Ninth Circuit ruled that although instrumental music is constitutionally-protected expression, the district's decision was justified in order to avoid controversy. Circuit Judge Milan Smith filed a dissenting opinion expressing his view that Nurre's First Amendment rights were violated and his fear that the decision could lead "public school administrators to chill--or even kill--musical and artistic presentations by their students . . . 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 might be."
"This case is a perfect example of the extremes to which school officials will go in their efforts to sanitize our nation's public schools of anything even remotely related to religion," said John W. Whitehead, president of The Rutherford Institute. "Schools cannot ban performances and restrict students' right to free expression whenever those forms of expression might have some minimal connection to religion."
In 2006, members of the senior high woodwind ensemble at Henry M. Jackson High School in Snohomish County, Wash., elected to perform an instrumental arrangement of German composer Franz Biebl's "Ave Maria" at the school's graduation ceremonies in June 2006. School officials had adopted a custom of allowing the senior members of the high school's top performing instrumental group, the woodwind ensemble, to choose a song from their repertoire to perform as a farewell during graduation ceremonies. Previous selections included "On a Hymnsong of Philip Bliss," a popular composition based off the hymn "It is Well Within My Soul." Thus, having previously performed "Ave Maria" at a public concert, Kathryn Nurre and the other seniors in the wind ensemble unanimously chose to perform it again at their graduation ceremony on June 17, 2006.
The senior members proposed to perform Biebl's piece instrumentally; no lyrics or words would be sung or said, nor did the senior members intend that any lyrics would be printed in ceremony programs or otherwise distributed to members of the audience. However, despite the absence of lyrics, the superintendent of Everett School District No. 2 refused to allow the ensemble to perform "Ave Maria" at their graduation ceremony, allegedly because she believed the piece to be religious in nature. The ensemble was then instructed to select a piece for graduation that was entirely secular in nature. Attorneys for The Rutherford Institute filed suit against the school district in June 2006 on behalf of Kathryn Nurre, a member of the high school woodwind ensemble.
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I 100% agree the school acted stupidly by banning Ave Maria (weird choice for a graduation , but anyway). However, the court made the right decision in supporting the school, from a legal perspective. A content of a high school graduation ceremony is almost entirely up to the school administrators, students do not have a right to absolute free expression in a school even. The Supreme Court has repeatedly stripped students rights since the time of Tinker v. Des Moines; wrongly in my opinion, but the lower courts must respect SCOTUS precedent.
Let's look at one case in particular, Hazelwood v. Kuhlmeier. SCOTUS gave massive power to school administrators over content of school events; specifically with the phrase:
"educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."
One thing this article fails to point out is that the district received several complaints. Combining the complaints with the overreaching court rulings one can easily argue that because a disruption was possible due to the complaints of the religious music the school had the right under Hazelwood ruling to restrict the playing of the music.
The school was legally in the right, although intellectually in the wrong.
Many of us on this site are very adamant about keeping religion out of schools . I was reading this article and was wondering to myself if I was letting my guard down. I could not agree with the prohibition of this song during a graduation . To my joy I find myself in good company.
I can't even see this as slippery slope.
I totally agree. I'm what you might call a fervent atheist, and I strongly disapprove of school prayer , but this?! This is just loopy.
Why is it a problem to have someone sing and/or play Ave Maria at a school graduation ? It's a beautiful musical piece and generally considered an accomplishment for anyone who can perform it. I'm pretty sure that's why the school wanted to use it--it's beauty and the accomplishment of being able to perform it.
Political correctness rears its ugly head once again.
This is certainly problematic because much of the great classical music literature is religious in nature.
I am opposed to corporate or officially sponsored prayer in schools and to the words "Under God" in the Pledge, I do not believe schools should put on "Christmas" programs or other religiously-based celebratinos, but I am loathe to declare the vast majority of classical music works (as well as much of history's great works of art in all forms of media ) off-limits for study in public schools because they have a basis in the religion of one culture or another.
They weren't even going to include any spoken or sung lyrics. Geez, you'd think school administrators belive the slippery slope of scularism arguments from the anti-seculars and proceed to act as if it's the law .
I agree with everything you said.
However, I agree with the majority, the school was within it's rights to prevent controversy. As a public school, that is just part of the job.
Let me be clear about my thoughts though, the school was under no real legal obligation to oppose the selection, because as you said, to clear off all religiously inspired classical music would eliminate an unconcionable amount of musical history, and, as I added, a lack of lyrics completely removes any hint of proselytizing (at a minimum in the legal sense, but practically speaking too) and most likely would not have upset anyone. However, the majority was correct in that it was perfectly within their rights to prevent a religious controversy... Even as contrived and/or imaginary as this controversy would have been.
furthermore, if Rutherford were to win in this case it would create a "clear and present danger" litmus test almost overnight before schools could limit religious affronts to the secular nature of public schools.
The school may have gone overboard though, because in their attempts to quell controversy, they put themselves in a position were they have no other choice but to defend their actions. Not defending it all would have had the adverse affect of conceding their point which would have had disastrous effects on the future defense of adherrance to the secular nature of the schools. The administrators must have certain authority to prevent religious messages in schools. Free speech is not a protected right in public schools. At least in the same manner as is elsewhere.
The courts have always defended this position and the Ninth did another good job of defending that position.
The problem is that public schools continue to make these black and white, zero tolerance rules that require no thinking, and then don't understand when they end up causing a controversy.
When my sons HS did Huck Finn a local member of the ACLU threatened legal action if the ministers part wasn't cut. So sad.
was the theme from the end part of Star Wars where everyone gets a medal.