Metropolitan News-Enterprise


Wednesday, September 9, 2009


Page 1


Ninth Circuit Approves Ban on ‘Ave Maria’ at Graduation




School officials in Washington state did not violate a high school student ensemble’s constitutional rights by barring them from performing “Ave Maria” at graduation, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The superintendent of Everett School District No. 2 acted reasonably in concluding that the use of the well-known piece, a Roman Catholic prayer set to music—the title translates in English as “Hail Mary”—might be seen as an endorsement of religious dogma by the district, the panel held.

Judge Richard Tallman wrote for the court, joined by Senior Judge Robert Beezer in declaring that no constitutional violation occurred.

Judge Milan D. Smith Jr. dissented in part. He argued that the piece should not have been banned, but said the unsettled nature of the law entitles the superintendent to judgment on the ground of qualified immunity.

Discrimination Claim

Kathryn Nurre, a 2006 graduate of Henry M. Jackson High School in Everett, sued under 42 U.S.C. Sec. 1983 after she and other members of the wind ensemble were not permitted to perform their chosen piece at graduation. They contended that they were being discriminated against, since previous classes were allowed to play their chosen music, and that their First Amendment rights to freedom of speech and religion were being violated.

School attorneys responded that they acted reasonably. They noted that many in the community complained after the student choir had performed “Up Above My Head,” which includes references to “God,” “heaven” and “angels” the year before, and argued that keeping the graduation free of religious themes was a practical way of avoiding claims the district was violating the Establishment Clause.

In taking that position, the district drew a distinction between the unique setting of graduation and mid-year concerts, where a variety of musical works, including those of religious themes, were performed in accord with district policy.

Chief U.S. District Judge Robert Lasnick of the Western District of Washington granted summary judgment to the defendant, Superintendent Carol Whitehead, holding that she did not violate the Constitution in either a personal or official capacity, that she was entitled to qualified immunity, and that Nurre’s claims for injunctive relief were moot because she had graduated.

Amicus Briefs

Nurre’s appeal drew amicus briefs from The National Legal Foundation, which advertises itself as “a Christian public interest law firm dedicated to the preservation of America’s freedom and constitutional rights,” in support of Nurre, and from Americans United for Separation of Church and State, the American Jewish Congress, and the National School Boards Association in support of the superintendent.

Tallman, writing for the appellate panel, said that while the proposed performance may have constituted speech and the graduation ceremony may have been a limited public forum, the district was permitted to impose reasonable restrictions on the type of music performed.

Smith, in his separate opinion, argued 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 jurist insisted:

“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 themselves in such fora, and hasten the retrogression of our young into a nation of Philistines, who have little or no understanding of our civic and cultural heritage.”

Allowing the piece to be played, he said, “would not have risked creating a disruption or generating appreciable controversy,” especially since the group would only be playing the music, without vocal accompaniment.

‘Narrow Conclusion’

Tallman responded that the court was not trying “to remove all religious musical work from a school ensemble’s repertoire,” nor “to substantially limit when such music may be played.”

He explained:

“We agree with him that religious pieces form the backbone of the musical arts. To ignore such a fact would be to dismiss centuries of music history. 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.”

The jurist also rejected the plaintiff’s contention that banning the piece reflected an official policy of hostility towards religion. Applying the Supreme Court’s three-pronged Lemon test, he concluded that the ban had a valid purpose—avoiding conflict with the Establishment Clause—that it was primarily designed to avoid that conflict, rather than to advance or inhibit religion,  and that it did not excessively entangle government and religion since it applied only to the graduation ceremony and there was no evidence it caused “political divisiveness” within the district.

The case is Nurre v. Whitehead, 07-35867.


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