Public School Could Bar Religious Music at Graduation, Court Rules

By Mark Walsh — September 10, 2009 2 min read
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A school district did not violate the rights of a student when it barred her and other members of the wind ensemble from performing “Ave Maria” at a high school graduation ceremony, a federal appeals court has ruled.

Student Kathryn Nurre sought to perform an instrumental version of the song, which translates to “Hail Mary,” at the 2006 graduation ceremony of Henry M. Jackson High School in Everett, Wash. But school administrators, who had received complaints about a musical selection with religious references at a 2005 graduation, told Nurre and the wind ensemble to select a secular piece of music, which they reluctantly did.

Nurre sued the superintendent of the Everett school district, alleging that the decision censored her speech in violation of the First Amendment’s free-speech clause, showed hostility towards religion in violated of the First Amendment’s establishment clause, and violated her equal-protection rights.

A federal district court held that the student’s rights were not violated. On Sept. 8, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld the district court. The judgment was unanimous, although one member of the panel wrote an partial dissent, saying the district violated Nurre’s free-speech rights.

The appeals court majority said such cases on religious expression were always difficult for schools, and it was not ruling that religious music could never be played in public schools. But because a graduation ceremony is considered an obligatory event for the high school seniors, district officials acted reasonably in seeking to keep the musical selections secular.

“Here, the district was acting to avoid a repeat of the 2005 controversy by prohibiting any reference to religion at its graduation ceremonies,” Judge Richard C. Tallman wrote for the 9th Circuit majority in Nurre v. Whitehead. “District administrators recognized the evident religious nature of ‘Ave Maria’ and took into consideration the compulsory nature of a graduation ceremony.”

Judge Milan D. Smith Jr., in his partial dissent, said the ruling could lead public schools to eliminate music “with any trace of religious inspiration” from its programs.

“The taking of such unnecessary measures by school administrators,” Judge Smith said, “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.”

A version of this news article first appeared in The School Law Blog.