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.