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Published in Print: March 31, 2010, as 'Ave Maria' Case Denied Hearing

High Court Turns Down Religious-Music Case

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The U.S. Supreme Court last week refused to take up a case involving religious music at a public school graduation ceremony, but a dissenting justice warned that a lower court’s ruling will restrict student speech rights.

Also, the justices ruled in favor of a student debtor in a case involving student loans and bankruptcy that was being watched closely by many in banking and higher education.

In the religious-music case, Justice Samuel A. Alito Jr. dissented from the court’s refusal to hear the appeal of Kathryn Nurre, who along with other members of a student wind ensemble sought to perform an instrumental version of “Ave Maria” at the 2006 graduation ceremony of Henry M. Jackson High School in Everett, Wash. The version was a lesser-known one composed by Franz Biebl that had been performed at other school events by the wind ensemble.

School administrators told Ms. Nurre and the wind ensemble to select a secular piece of music, which they reluctantly did. Ms. Nurre sued the superintendent of the 18,500-student Everett school district, alleging that the decision had censored her speech in violation of the First Amendment’s free-speech clause.

In a decision last September, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that because a graduation ceremony is an obligatory event for the high school seniors, district officials acted reasonably in keeping the musical selections secular. But the panel said it was not ruling that religious music could never be played in public schools.

Alito in Dissent

Ms. Nurre pursued her case to the Supreme Court, but the justices on March 22 refused to take up the appeal in Nurre v. Whitehead (Case No. 09-671).

In his dissent from the decision not to hear the case, Justice Alito said the 9th Circuit’s ruling “is not easy to square with our free-speech jurisprudence.”

“When a public school purports to allow students to express themselves, it must respect the students’ free-speech rights,” he said. “School administrators may not behave like puppet masters who create the illusion that students are engaging in personal expression when in fact the school administration is pulling the strings.”

Justice Alito said that despite a characterization by the 9th Circuit that the district had acted on viewpoint-neutral grounds, the district prohibited “Ave Maria”—which translates to “Hail Mary”—“precisely because of its perceived religious message.”

The lower-court ruling will have important implications, he said, for the nearly 10 million public school students in the 9th Circuit, which, in addition to Washington state, covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, and Oregon.

“The 9th Circuit’s decision may provide the basis for wide-ranging censorship of student speech that expresses controversial ideas,” Justice Alito said.

Ms. Nurre’s appeal was brought to the high court by the Rutherford Institute, a Charlottesville, Va.-based legal-advocacy organization that often fights for student religious expression.

Student-Loan Repayment

In the bankruptcy case, the justices ruled in favor of a student who had discharged his college-loan interest in bankruptcy without having to prove he faced “undue hardship,” as federal bankruptcy law requires.

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In an opinion for a unanimous court, Justice Clarence Thomas said that the bankruptcy judge had committed “legal error” in approving the discharge plan for an Arizona airline employee with some $17,000 in student-loan principal and interest, but that the man’s lender had had notice of the plan and had failed to object to it in a timely manner.

The lender had waited several years to try to undo the plan.

The opinion in United Student Aid Funds Inc. v. Espinosa (No. 08-1134) did stress to bankruptcy judges that there should be “an independent determination of undue hardship” before they discharge a debtor’s student loans, even if the normal procedure outlined in bankruptcy law isn’t followed.

Vol. 29, Issue 27, Pages 22-23

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