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Wash. district's ban on 'Ave Maria' at graduation upheld

By Lydia Hailman King
First Amendment Center Online intern
10.12.07

A federal judge in Seattle recently ruled that a school district did not violate a student’s First Amendment rights by banning the song “Ave Maria” from a 2006 commencement ceremony.

Kathryn Nurre was a senior at Henry M. Jackson High School when she and other members of the wind ensemble selected an instrumental arrangement of “Ave Maria” to play at graduation.

The school had a tradition of allowing senior musicians to choose a song to play for commencement. The wind ensemble had previously played “Ave Maria” at a winter concert without dispute. Written by German composer Franz Biebl in 1964, the song’s Latin title translates as “Hail Mary.”

School administrators denied the ensemble’s request to play “Ave Maria,” stating that graduation music was required to be “entirely secular in nature.” 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 a summary judgment issued Sept. 20, 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.”

Although Lasnik found the instrumental song constituted speech within a limited public forum, he wrote in Nurre v. Whitehead that the school’s restriction was viewpoint-neutral.

Nurre, who is now a college student, was represented by John Whitehead, president and founder of the Rutherford Institute, a Virginia-based civil liberties organization. He is not related to Superintendent Carol Whitehead.

“I am absolutely and greatly disappointed in the ruling,” John Whitehead told the First Amendment Center Online. “This is an important free-speech case. The judge indicated that a public forum was created, but in order for a school to avoid the establishment clause, it must do away with free speech.”

Whitehead says political correctness is to blame.

“This is one of those cases of simply overreacting with a very politically correct reaction, and we’re seeing a number of very similar cases today,” he said. “There is a danger of political correctness eradicating diversity and free speech. I put these cases in a dangerous category in which schools can completely secularize the school environment.

“I think the framers of our Constitution would laugh at this ruling,” Whitehead added. “I think a lot of judges would laugh at this. If students can’t get together and decide to play a song, there is no freedom of speech for schools.”

Whitehead said that Nurre would appeal the decision. Attempts to reach Nurre were unsuccessful.

Mike Patterson, the superintendent’s attorney, said, “I believe the ruling fully vindicated the actions of the superintendent. It underscored the importance of the graduation ceremony itself and gave credence and authority to the school to deal with such instances.”

Patterson added that he did not believe the ruling infringed on the student’s First Amendment rights.

Lydia Hailman King is a University of Mississippi graduate with degrees in journalism, international studies and French.


Update
Wash. school was within rights to bar hymn at graduation
9th Circuit panel majority: 'When there is a captive audience at a graduation ceremony ... it is reasonable for a school official to prohibit the performance of an obviously religious piece.' 09.09.09

Previous
Nixing 'Ave Maria' at graduation prompts lawsuit
Everett, Wash., school officials decided instrumental performance of religious song, even without lyrics, would be too religious for school-sanctioned event. 07.18.06

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Graduation ceremonies

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