'Ave Maria' at graduation? Supreme Court declines case.

A superintendent banned an instrumental performance of ‘Ave Maria’ at a high school graduation ceremony because it seemed too religious. On Monday, the Supreme Court turned away the case.

By , Staff writer

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    A superintendent has blocked an instrumental performance of ‘Ave Maria’ at a high school graduation on First Amendment grounds. On Monday, the Supreme Court declined to hear the case.
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The US Supreme Court on Monday declined to take up a case charging that a school superintendent in Everett, Wash., went too far when she banned a student’s instrumental performance of “Ave Maria” at a public high school graduation ceremony because the title of the selection seemed too religious.

The high court rejected the appeal over the dissent of Justice Samuel Alito, who said the decision of the Ninth US Circuit Court of Appeals could provide a basis for “wide-ranging censorship of student speech that expresses controversial ideas.”

“A reasonable reading of the Ninth Circuit’s decision is that it authorizes school administrators to ban any controversial student expression at any school event,” Justice Alito said. “A decision with such potentially broad and troubling implications merits out review.”

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The case involved a decision by school officials to bar a student group from performing a piece of music with a religious title because officials feared it might provoke controversy.

Saxophonist Kathryn Nurre filed a lawsuit claiming the school district engaged in unconstitutional censorship, acted with hostility toward religion, and treated her and fellow members of the school’s wind ensemble differently from others at the school.

The wind ensemble selected an instrumental-only version of “Ave Maria” to perform at the graduation. But school officials were worried that some local residents might complain about the religious content of the title. Administrators instructed the students to perform a clearly secular piece of music instead.

The students were not seeking to deliver a religious message, according to Ms. Nurre’s lawyer, W. Theodore Vander Wel. They simply liked the piece and felt they could perform it well.

“The censorship in this case involves political correctness run [amok],” Mr. Vander Wel wrote in his petition to the high court. Art and student expression, he said, had been “sacrificed to a heckler’s veto that seeks to sanitize even the remotest vestige of religion from public life.”

School officials defend their actions. “The school district is not seeking to deprive students of learning opportunities, nor is it seeking to purge altogether religious-inspired works from public education,” wrote Seattle lawyer Michael Patterson in his brief on behalf of the school district.

“It simply sought to provide an atmosphere in which all graduates could celebrate their academic achievements, free from controversial messages, and free from the controversy that plagued its past graduation ceremony,” he said.

A year earlier, the senior choir had sung a piece with religious references during the graduation ceremony. “The selected song included Christian lyrics affirming ‘There must be a God somewhere’ because ‘Up upon my head I hear angels singing,’ ” Mr. Patterson wrote in his brief.

School superintendent Carol Whitehead received complaints afterward, and one person wrote a heated letter to the local newspaper denouncing the fact that religious references had been uttered during a school graduation ceremony. Ms. Whitehead was determined to prevent any repetition of the controversy.

When school officials learned that the wind ensemble wanted to play “Ave Maria,” they considered their options. Because it was an instrumental piece, with no lyrics, the only objection was printing the Latin words “Ave Maria” (Hail Mary) in the graduation program.

According to Patterson’s brief, school officials considered listing “the name of the piece in the program under a different title.” That option was rejected.

Instead, they ordered the students to play something without any obvious religious connection.

The action surprised the students in the wind ensemble. The group had performed the same piece in a school concert earlier that year.

Nurre performed an alternative musical selection, received her diploma, and then filed a lawsuit.

A federal judge dismissed Nurre’s suit. The ruling was upheld by a panel of the Ninth Circuit.

Two of the three panel members concluded that the superintendent did not violate Nurre’s First Amendment rights. A third concurred with the judgment because in his view the superintendent was protected from such lawsuits by qualified immunity.

The appeals court ruled that school officials acted reasonably by excluding the performance of “an obviously religious piece” at a public-school graduation ceremony attended by a captive audience.

In a dissent, Circuit Judge Milan Smith warned that the practical effect of the majority’s holding would be for “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.”

“The taking of such unnecessary measures by school administrators will only foster the increasingly sterile and hypersensitive way in which students may express themselves,” Judge Smith wrote. He added that it will “hasten the retrogression of our young into a nation of Philistines, who have little or no understanding of our civic and cultural heritage.”

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