Music can be banned if it even sounds religious

U.S. Supreme Court

A public school has banned performance of an instrumental version of "Ave Maria" at its high-school graduation simply because the superintendent fears it might sound religious – and the U.S. Supreme Court is allowing the ban to stand by refusing to hear the case.

Kathryn Nurre, a former student at Henry M. Jackson High School in Everett, Wash., brought the action against Carol Whitehead, superintendent of Everett School District, alleging that she engaged in unjustified censorship of expression.

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Nurre, a member of the Jackson High School Wind Ensemble who played alto saxophone, received her high school diploma in June 2006. The group was expected to perform at the graduation ceremony, and 17 students unanimously chose Franz Biebl's "Ave Maria" as their selection.

Their performance would be purely instrumental, with no singing or lyrics.

However, upon learning of the selection, Jackson High School Principal Terry Cheshire contacted District Executive Director Lynn Evans, who in turn contacted Superintendent Whitehead.

"Without student input or involvement, the administrators unilaterally decided to prohibit the seniors from playing 'Ave Maria' at the graduation," the complaint states.

Whitehead testified, saying "We made the decision that because the title of the piece would be on the program and it's 'Ave Maria' and that many people would see that as religious in nature, that we would ask the band to select something different."

According to court documents, no one at the meeting admitted to knowing the meaning of the words "Ave Maria" – "Hail Mary" in Latin. However, they agreed that it seemed to have a religious connotation.

At Whitehead's direction, an e-mail was sent to high school principals with guidelines on music selections for graduation ceremonies. It insisted that the music be "entirely secular in nature."

The students asked if they could play "Ave Maria" if they identified it only as "A selection by Franz Biebl" on the program. But Principal Cheshire said doing so would not be "ethical."

Instead, the students were forced to perform a movement from Gustav Holst's "Second Suite for Military Band" at the commencement ceremony.

Attorneys for the Rutherford Institute filed suit against the school district in June 2006. Nurre alleged the school district deprived her of her rights under 1) the Free Speech Clause of the First Amendment, 2) the Establishment Clause of the 14th Amendment and 3) the Equal Protection Clause of the 14th Amendment.

The district court ruled against Nurre, and the Court of Appeals for the Ninth Circuit affirmed the judgment.

In a 2009 dissenting opinion, Circuit Judge Milan Smith expressed his view that Nurre's First Amendment rights were violated and his fear that the decision could lead "public school administrators to chill – or even kill – musical and artistic presentations by their students ... 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 might be."

The Rutherford Institute, a nonprofit legal group, asked the Supreme Court to hear the case in December, but the Court has now refused the request.

Supreme Court Justice Samuel Alito blasted the court for rejecting the case.

"When a public school purports to allow students to express themselves, it must respect the students' free speech rights," Alito stated in his six-page opinion on the case. "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."

Likewise, John W. Whitehead, president of the Rutherford Institute, said he is disappointed in the Court's decision to let the lower court ruling against Nurre stand.

"Free speech in the public schools is on life support," he said. "With this decision, the Supreme Court may have pulled the plug. It's a sad day for freedom in America."