Published Online: September 15, 2009
Published in Print: September 16, 2009, as Courts Sound Sour Note on 'Ave Maria' at Event

Policy Brief

Courts Sound Sour Note on 'Ave Maria' at Event

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Kathryn Nurre and other members of the Henry M. Jackson High School wind ensemble wanted to perform an instrumental version of the song “Ave Maria” at the 2006 graduation ceremony—only to be shut down by administrators concerned about the song’s religious content.

Now the dispute, in Everett, Wash., appears headed for the U.S. Supreme Court after a Sept. 8 rulingRequires Adobe Acrobat Reader by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upholding the school officials’ decision. (The case is Nurre v. Whitehead, No. 07-35867.)

The decision illustrates the perennial tug-of-war over religious expression in public schools. ("Consensus Is Sought on Religion in Schools," March 12, 2007.)

And, in this case, even one of the appeals court judges who concurred in the result warned school officials about the implications.

“The taking of such unnecessary measures by school administrators,” Judge Milan D. Smith Jr. said in a partial dissent, “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.”

Ms. Nurre’s lawsuit alleged that the school officials’ decision violated the First Amendment’s free-speech clause and showed hostility toward religion in violation of the establishment clause.

But a federal district court held that her rights were not violated, and a three-judge panel of the 9th Circuit, which has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, agreed.

The appeals court panel said it was not ruling that religious music could never be played in public schools. But because a graduation ceremony is considered obligatory for high school seniors, district officials acted reasonably in seeking to keep the musical selections secular.

A lawyer who has been involved with the case from the start said he would appeal the ruling to the Supreme Court.

Vol. 29, Issue 03, Page 22

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