Wash. school was within rights to bar hymn at graduation

Wednesday, September 9, 2009

SEATTLE — A federal appeals court yesterday upheld a decision to bar the instrumental performance of a Christian hymn at a high school graduation.

The 9th U.S. Circuit Court of Appeals opened its opinion in Nurre v. Whitehead by noting, “Once again we enter the legal labyrinth of a student’s First Amendment right to free speech.”

The First Amendment to the U.S. Constitution begins by stating that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” A U.S. Supreme Court ruling in 1963 (Abington School District v. Schempp) barred schools from sponsoring prayer in classroom and assemblies, and other mandatory religious observances.

The current case arose a year after a choral performance of the song “Up Above My Head” at the 2005 commencement for Henry M. Jackson High School in Everett, 25 miles north of Seattle. The song, with references to God, angels and heaven, drew complaints and protest letters to The Herald, the town's daily newspaper.

Administrators raised red flags when wind ensemble seniors, including the lead plaintiff Kathryn Nurre, who had played Franz Biebl's up tempo 1964 rendering of “Ave Maria” without controversy at a winter concert, proposed a reprise at their graduation in 2006.

School officials said the title alone identified “Ave Maria” — Hail Mary in Latin — as religious and that graduation should be strictly secular. Nurre filed a suit against Everett School District Superintendent Carol Whitehead shortly after the ceremony, saying the district violated her free-speech and religious rights.

In September 2007, U.S. District Judge Robert S. Lasnik ruled in favor of the school district, writing that the school’s “prohibition of the performance of ‘Ave Maria’ was based on the decision to keep religion out of graduation as a whole, not to discriminate against a specific religious sect or creed.”

The 9th Circuit panel yesterday upheld Lasnik’s granting of summary judgment to the defendants.

“When there is a captive audience at a graduation ceremony … during which the demand for equal time is so great that comparable nonreligious works might not be presented, it is reasonable for a school official to prohibit the performance of an obviously religious piece,” Judge Richard C. Tallman wrote for himself and Judge Robert R. Beezer.

The third member of the panel, Judge Milan D. Smith Jr., concurred with the outcome, saying he agreed that the action was within the superintendent's discretion but argued that the students' First Amendment rights had been violated.

“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 … when those presentations contain any trace of religious inspiration” in a school setting, Smith wrote.

“Such unnecessary measures by school administrators will only foster the increasingly sterile and hypersensitive way in which students may express themselves … and hasten the retrogression of our young into a nation of Philistines who have little or no understanding of our civic and cultural heritage,” he added.

Michael A. Patterson, a lawyer for Superintendent Whitehead, said he was “delighted” by the ruling.

“We have always thought that she acted at all times with qualified immunity and that she did the right thing,” Patterson said.

John W. Whitehead, a lawyer who has been involved in the case against the school district from the start, said he would appeal to the Supreme Court to determine “how far schools can go in eradicating any kind of religious influence.”

Compared with better known, more stately versions of “Ave Maria” dating from the Renaissance period, Biebl's rendering is “totally unrecognizable,” said Whitehead, who is not related to the superintendent and is president and founder of the Rutherford Institute, a conservative legal aid group. “You can't sing along with it.”

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